[S.9 Guardians And Wards Act] “Ordinary Residence” Not Temporary Residence Of Minor When Application For Custody Filed: Allahabad High Court

The Allahabad High Court has held that “ordinary residence” of minor under Section 9(1) of the Guardians and Wards Act 1890 will not include the temporary residence where the minor may have moved temporarily, even for education, at the time of filing of application for custody under the Act.

Section 9(1) of the Guardians and Wards Act 1890 provides that application regarding guardianship of the person of the minor shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. Sub-sections (2) and (3) of Section 9 provide the jurisdiction when application is sought to be made for the property of the minor.

The bench comprising of Justice Vivek Kumar Birla and Justice Syed Qamar Hasan Rizvi held

“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 Court held that “ordinarily resides” is not identical to residence of the minor at the time of filing of application for custody. The Court held that the expression “where the minor ordinarily resides” has been used to avoid mischief of forcibly removing the minor from the jurisdiction of the Court where the application for custody has been filed.

“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 Court further held that the determination of “ordinary residence” of minor is a mixed question of fact and law which cannot be decided while dealing with application under Order VII Rule 11 of CPC.

Factual Background

Respondent-mother filed a petition under section 25 of the Guardians and Wards Act seeking custody of her child. Appellant-father pleaded that he came to know of the case through notice published in the newspaper 'Rastriya Sahara'. Thereafter, he filed an application under Order VII Rule 11 read with Section 151 CPC in the said case seeking dismissal of the case on grounds that Family Court at Ghaziabad had no jurisdiction to entrain the case as the minor was studying in Bhiwani, Haryana.

Application filed by the appellant was rejected on grounds that according to Section 9(1) of the Act, the Court in whose jurisdiction the ward ordinarily resides will have the jurisdiction under the Act. Since it was not disputed that the father of the ward was ordinary resident of Ghaziabad, the Family Court held that it had the jurisdiction.

While challenging the rejection order, counsel for petitioner argued that Family Court erred in ignoring the fact that the child was studying in Haryana and was residing there. It was argued that permanent address does not mean that permanent address of the ward. It was argued that “where the minor ordinarily resides” was a mixed question of fact and law where it was necessary of the Family Court to hold an inquiry before passing orders.

High Court Verdict

The Court held that the ordinary resident of the ward involves looking at intention which is a question of fact. It was held that “where the minor ordinarily resides” may be a question of law and fact mixed but unless facts regarding jurisdiction are admitted, the question of law cannot be answered without inquiry into the facts of the case.

The Court relied on Jagdish Chandra Gupta v. Dr. Ku. Vimla Gupta where the Allahabad High Court held that ordinary residence of minor is to be determined by seeing if the minor was ordinarily residing at a particular place and had been removed for special circumstances at the time of filing of application under the Act.

In Manish Sehgal v. Meenu Sehgal, the Supreme Court categorically held that a place where the minor may have gone to study is not his ordinary place of residence. Further, reliance was placed on Jagir Kaur v. Jaswant Singh where while dealing with a maintenance case, the Supreme Court held that the word “reside” is more than a place which is visited by a person temporarily or casually.

The Court held that temporary residence on the date of filing of a petitioner under the Act will not be considered as a place where minor ordinarily resides.

On perusal of the pleadings, the Court observed that though the minor was living in Haryana for education, the address of the father in his affidavit was stated to be Ghaziabad.

The Court held that for deciding application under Order VII Rule 11 of CPC only averments made in the plaint are to be seen without any addition or subtractions. Merits of the case including evidence or disputed questions of facts and law are not to be seen at the stage of deciding application under Order VII Rule 11 of CPC.

“While dealing with the application under Order 7, Rule 11 of the Civil Procedure Code, 1908, the averments made in the plaint alone are to be seen. It is also trite that jurisdiction is a mixed question of law and fact, and a plaint should not ordinarily be rejected on the ground of jurisdiction, without framing a distinct issue and taking evidence.”

The Court held that ordinary residence of the minor cannot be decided without inquiry into the facts of the case. The Court held that residence by volition or by compulsion within territorial jurisdiction of a Court cannot be treated as place of ordinary residence.

The Court relied on Ruchi Majoo v. Sanjeev Majoo where the Supreme Court held that

“Whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. It may at best be mixed question of law and fact. It has further been held that unless jurisdictional facts are admitted, the question “where the minor ordinarily resides” can never be pure question of law, capable of being answered without an enquiry into the factual aspects of the controversy.”

The Court held that since the question of ordinary residence of the minor was a disputed question of fact and law, it could not have been decided without inquiry into the facts of the case which is not permissible under application under Order VII Rule 11 of CPC.

Accordingly, the appeal filed by the father was dismissed.

Case Title: Dheeraj vs. Smt. Chetna Goswami 2024 LiveLaw (AB) 321 [First Appeal No. 373 of 2024]

Citation: 2024 LiveLaw (AB) 321

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