Jurisdiction Of Court For Entertaining An Application For Guardianship Of Minor Cannot Be Taken Away By Temporary Residence Elsewhere: Allahabad HC

The Bench explained that Section 9 (1) of the Guardians and Wards Act, 1890 (the Act) indicated that if a minor was found residing at a different place when the application for the guardianship of the minor was made, that place would not determine the jurisdiction of 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.”

Advocate Satyendra Narayan Singh represented the petitioner.

The Court dismissed an appeal filed by the father of the minor, contesting the jurisdiction of the Family Court in a child custody case initiated by his wife. The appeal was filed to challenge the Family Court’s decision to reject the father’s application 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 lacked jurisdiction as their son was studying in a different and thus resided outside the family court’s territorial jurisdiction. He filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908, to dismiss the case.

The High Court, however, upheld the Family Court’s interpretation of Section 9(1) of the Act, which states that the application should be made to the family court where the minor “ordinarily resides.” The Bench explained that “ordinary residence” was a question of fact and law, requiring detailed inquiry beyond just the child’s temporary or current place of residence.

“The residence by volition or by compulsion within the territorial jurisdiction of the Court cannot be treated as place of ordinary residence. The words “ordinarily resides” are not identical and cannot have the same meaning as residence at the time of filing of the application for grant of custody,” the Court remarked.

Accordingly, the High Court dismissed the appeal.

Cause Title: A v. B (Neutral Citation: 2024:AHC:87786-DB)

Appearance:

Petitioner: Advocate Satyendra Narayan Singh

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