The Allahabad High Court emphasized that the primary residence of a minor is pivotal in establishing a court’s jurisdiction for guardianship petitions, irrespective of any temporary relocation at the time of filing the petition. The Bench clarified that Section 9(1) of the Guardians and Wards Act, 1890, explicitly states that a minor’s temporary residence elsewhere upon filing the guardianship application does not confer jurisdiction upon the family court.
A Division Bench of Justice Vivek Kumar Birla and Justice Syed Qamar Hasan Rizvi observed, “Thus, a bare perusal of section 9 (1) of the Guardians and Wards Act, 1890 makes it apparent that it is the ordinary place of residence of minor which determines the jurisdiction of the Court for entertaining an application for guardianship of the minor. Such jurisdiction cannot be taken away by temporary residence elsewhere on the date of presentation of the petition. The fact that the minor is found actually residing at the place when the application for the guardianship of the minor is made does not determine the jurisdiction of the Court.”
The petitioner was represented by Advocate Satyendra Narayan Singh. In a child custody case initiated by his wife, the father of the minor filed an appeal contesting the jurisdiction of the Family Court. The appeal sought to challenge the Family Court’s decision to reject the father’s request for dismissal on jurisdictional grounds.
“The purpose of using the expressions “where the minor ordinarily resides” is perhaps to avoid the mischief that minor may be forcibly removed to a distant place, but still the application for minor’s custody could be filed within the jurisdiction of the Court from whose jurisdiction he had been removed or in other words where the minor would have continued to remain but for his removal,” the Bench stated.
The father argued that the Family Court’s jurisdiction was lacking as their son was attending school in another location, thus falling outside the territorial jurisdiction of the family court. Consequently, he filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908, seeking dismissal of the case.
However, the High Court upheld the Family Court’s interpretation of Section 9(1) of the Act, which mandates that the application should be lodged in the family court where the minor “ordinarily resides.” The Bench clarified that determining the “ordinary residence” necessitated a comprehensive examination of both factual and legal aspects, extending beyond the minor’s temporary or current abode.
