By Shazia Siddiqui 

In a pivotal decision, the Allahabad High Court has provided crucial clarification on the jurisdictional criteria for handling guardianship applications under the Guardians and Wards Act, 1890. This ruling arose from a dispute involving a father’s challenge to the jurisdiction of a Family Court over a child custody case initiated by his estranged wife. The primary issue revolved around whether the court’s jurisdiction should be determined by the child’s current location or their usual place of residence.

The background of the case involves the father arguing that the Family Court lacked jurisdiction because their son was studying and residing outside the court’s territorial jurisdiction. He filed a motion under Order VII Rule 11 of the Code of Civil Procedure, 1908, seeking to dismiss the custody petition on these jurisdictional grounds. The father’s contention was that since their son’s current residence was outside the Family Court’s jurisdiction, the court had no authority to proceed with the case.

Both the Family Court and the Allahabad High Court dismissed the father’s jurisdictional challenge. They based their rulings on a thorough interpretation of Section 9(1) of the Guardians and Wards Act, 1890, which clearly states that guardianship applications should be filed in the court where the minor “ordinarily resides.” This term, as the courts highlighted, refers to the child’s habitual and regular place of living, rather than any temporary or occasional location at the time of filing the petition.

The Division Bench, consisting of Justice Vivek Kumar Birla and Justice Syed Qamar Hasan Rizvi, emphasized that the concept of “ordinary residence” is designed to maintain jurisdictional stability and prevent manipulative relocations that could unjustly shift legal proceedings. The Court explained that the term is intended to safeguard against scenarios where a minor might be temporarily or forcibly relocated to another area, only for jurisdictional claims to become fragmented or arbitrarily reassigned. This safeguard is particularly crucial in preventing the exploitation of transient moves to alter the legal landscape of custody disputes.

In their detailed judgment, the Court articulated that the phrase “ordinarily resides” is meant to indicate a consistent and permanent place of living for the minor, which cannot be undermined by brief or temporary absences. The Bench remarked, “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 elucidated that determining a minor’s “ordinary residence” involves a complex interplay of factual and legal considerations, rather than merely pinpointing the minor’s current or temporary location at the time the petition is filed. It distinguished between a minor’s voluntary or compelled temporary stay in a place and their ordinary place of residence. This nuanced interpretation ensures that jurisdiction aligns with the child’s stable and routine living environment, rather than being swayed by transient circumstances.

In upholding the Family Court’s decision and dismissing the father’s appeal, the High Court reinforced the principle that the determination of a minor’s ordinary residence is essential in deciding the proper venue for guardianship and custody proceedings. The ruling underscores that temporary relocations should not disrupt established jurisdictional norms, thereby maintaining fairness and consistency in the application of the Guardians and Wards Act, 1890.

This decision by the Allahabad High Court sets a significant precedent in interpreting the Act, particularly in how it differentiates between a child’s habitual residence and their temporary living situations. It ensures that the jurisdiction for guardianship and custody cases remains anchored to the minor’s ordinary place of residence, thus providing stability and preventing jurisdictional disputes arising from the minor’s transient or forced relocations. This interpretation aligns with the broader legislative intent of protecting the child’s welfare and providing a consistent legal framework for guardianship proceedings.

Case Title: A v. B

Neutral Citation: 2024:AHC:87786-DB

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