“Ordinary Residence of a Child is Pivotal for Ascertaining Jurisdiction: Punjab and Haryana High Court Chandigarh.”
January 10, 2025 2025-03-02 15:40“Ordinary Residence of a Child is Pivotal for Ascertaining Jurisdiction: Punjab and Haryana High Court Chandigarh.”
“Ordinary Residence of a Child is Pivotal for Ascertaining Jurisdiction: Punjab and Haryana High Court Chandigarh.”
By Pradyumna Satish
The present case at hand concerns a dispute over the territorial jurisdiction of a court to entertain a child custody petition amidst an acrimonious relationship between the parents, Sulbhi and Bhavnesh Kumar, who were married in 2017. They were blessed with a daughter, Rehanshi, in 2019 and, since June 2021, the child has been residing with Sulbhi’s parents in Jalandhar, Punjab.
On November 1, 2022, Bhavnesh filed a petition under the Guardians and Wards Act, 1890, and the Hindu Minority and Guardianship Act, 1956, before the Guardian Judge in Chandigarh, seeking custody or visitation rights for his daughter. In response, Sulbhi filed an application under Order VII Rule 11 of CPC, arguing that the Chandigarh Court lacked jurisdiction since the child ordinarily resides in Jalandhar.
The court held that Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (HMGA), and Section 9 of the Guardians and Wards Act, 1890 (GWA), serve distinct purposes and cannot be conflated. Section 6 of the 1956 Act concerns the natural guardianship of a Hindu minor, while Section 9 of the 1890 Act determines the territorial jurisdiction for child custody cases based on the child’s ordinary residence. The natural guardianship of a parent does not influence jurisdiction under Section 9, and the legislature has not linked a parent’s residence to the child’s ordinary residence for jurisdictional purposes.
The court emphasized that the child, residing with her maternal grandparents in Jalandhar since June 2021 and attending school there, is ordinarily resident in Jalandhar. The petition filed in Chandigarh in November 2022, i.e., 1.5 years after the child started living in Jalandhar, was outside the jurisdiction of Chandigarh courts. The court relied on the Division Bench ruling in Rajesh v. Sunita and the Supreme Court’s decision in Rosi Jacob v. Jacob to conclude that Jalandhar courts have jurisdiction in this matter, rendering the Chandigarh trial court’s order unsustainable.
However, despite pronouncing this legal reasoning, the Guardian Judge dismissed Sulbhi’s application on the grounds that both parents reside in Chandigarh and that custody of a child below five years, especially a female child, is deemed to be with the mother. Thereby, the Court held that Chandigarh has jurisdiction to hear the case.
Case Title: Sulbhi and Anr. v. Bhavnesh Kumar.
Citation: CR No. 3925/2024.
