Temporary Residence Elsewhere Doesn't Alter Jurisdiction In Guardianship Petitions, It Depends On Ordinary Residence: J&K High Court

Highlighting a clear distinction between the ordinary residence of a minor and that of the natural guardian a bench of Justices Sanjeev Kumar and Rajesh Sekhri observed,

“.. it is the ordinary residence of the minor which would determine the jurisdiction of the Court and not the residence of the natural guardian. Ordinary residence of a minor is different from the residence of the natural guardian who may be in deemed custody of the minor under personal law to which the minor is subject”.

These observations came while hearing an appeal filed by an appellant mother against an order of the Principal Judge, Family Court, Jammu, which returned her application seeking custody of her minor daughters under Sections 12 and 25 of the Guardians and Wards Act, 1890.

The Principal Judge had ruled that the Family Court lacked jurisdiction as the minors were ordinarily residing in Poonch, outside its jurisdiction. The appellant had argued that, under Muslim personal law, the mother should be deemed the custodian of her minor daughters until they attain puberty, thus asserting that the minors should be considered as ordinarily residing with her in Jammu.

The trial court, however, rejected this argument and returned her application leading to this instant appeal before the High Court.

Assailing the order, appellant placed reliance upon Sections 6 and 17 of the Act to buttress her argument that while determining jurisdiction in terms of Section 9 of the Act, the Court must have regard to the personal law to which the minor is subject.

Meticulously analysing Section 9 of the Guardians and Wards Act, which mandates that an application for guardianship should be filed in the court where the minor ordinarily resides the court clarified that the jurisdiction is based on the minor's residence and not on the location of the natural guardian, emphasizing that ordinary residence is a matter of fact and intention.

In rejecting the appellant's plea, the Court observed that It is the ordinary residence of the minor which would determine the jurisdiction of the Court and not the residence of the natural guardian. Ordinary residence of a minor is different from the residence of the natural guardian who may be in deemed custody of the minor under personal law, the court underscored.

Furthermore, the Court noted that “this Court would have appreciated, had it been the case of the appellant that the appellant along with her minor daughters was ordinarily residing in Jammu and that from her custody, the minors were removed by the respondent. That would have changed the entire complexion of the case.” However, in this instance, the minors had never resided in Jammu, which nullified the appellant's claim of jurisdiction, the court opined.

The bench also referred to the Supreme Court's judgment in Ruchi Majoo v. Sanjeev Majoo 2011, to reaffirm that "temporary removal of the minor" does not affect the determination of ordinary residence.

Ultimately, the High Court dismissed the appeal, upholding the Family Court's decision to return the petition for want of jurisdiction.

Case Title: Sabahat Sanna Vs Dr Shabir Ahmad

Citation: 2024 LiveLaw (JKL) 273

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