The Allahabad High Court has determined that the term “ordinary residence” of a minor under Section 9(1) of the Guardians and Wards Act, 1890, does not include a temporary residence where the minor may have moved, even for education, at the time of filing a custody application under the Act.
Section 9(1) of the Guardians and Wards Act, 1890, stipulates that an application for guardianship of a minor must be submitted to the District Court with jurisdiction over the area where the minor ordinarily resides. Sub-sections (2) and (3) of Section 9 outline the jurisdiction for applications related to the minor’s property.
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 ruled that “ordinarily resides” is distinct from the minor’s residence at the time of filing a custody application. It emphasized that the phrase “where the minor ordinarily resides” is intended to prevent the manipulation of jurisdiction by forcibly relocating the minor from the court’s jurisdiction where the custody application is submitted.
“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 ruled that determining a minor’s “ordinary residence” is a mixed question of fact and law, which cannot be resolved when addressing an application under Order VII Rule 11 of the CPC.
Factual Background
The respondent mother filed a petition under Section 25 of the Guardians and Wards Act seeking custody of her child. The appellant father claimed he learned of the case through a notice in the newspaper ‘Rastriya Sahara’. Subsequently, he filed an application under Order VII Rule 11, along with Section 151 CPC, seeking dismissal of the case on the grounds that the Family Court in Ghaziabad lacked jurisdiction, as the minor was studying in Bhiwani, Haryana.
The appellant’s application was rejected, with the court stating that, according to Section 9(1) of the Act, the court within whose jurisdiction the minor ordinarily resides has jurisdiction. Since it was undisputed that the father was an ordinary resident of Ghaziabad, the Family Court determined it had jurisdiction.
In challenging the rejection, the petitioner’s counsel argued that the Family Court erred by ignoring that the child was studying and residing in Haryana. They contended that the phrase “where the minor ordinarily resides” is a mixed question of fact and law, necessitating an inquiry before the Family Court could issue a ruling.
High Court Verdict
The Court held that determining a minor’s ordinary residence involves considering intent, which is a factual question. It stated that while “where the minor ordinarily resides” may involve both law and fact, the legal question cannot be addressed without first investigating the facts.
The Court referenced Jagdish Chandra Gupta v. Dr. Ku. Vimla Gupta, where it was established that a minor’s ordinary residence should be determined by whether the minor was ordinarily residing at a particular location and had been temporarily relocated due to special circumstances at the time of the application.
In Manish Sehgal v. Meenu Sehgal, the Supreme Court clarified that a place where a minor is studying is not their ordinary residence. Additionally, the Court relied on Jagir Kaur v. Jaswant Singh, where the Supreme Court ruled in a maintenance case that “reside” implies more than a place visited temporarily or casually.
The Court concluded that a temporary residence at the time of filing a petition under the Act is not considered the minor’s ordinary residence.
Upon reviewing the pleadings, the Court noted that although the minor was living in Haryana for educational purposes, the father’s affidavit listed his address as Ghaziabad.
The Court emphasized that, when deciding an application under Order VII Rule 11 of the CPC, only the averments in the plaint should be considered, without considering evidence or disputed questions of fact and law.
“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 ruled that determining the ordinary residence of a minor requires an inquiry into the facts of the case. It stated that residence, whether by choice or compulsion, within the territorial jurisdiction of a court, cannot be considered the minor’s ordinary residence.
The Court cited 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 determined that the disputed matter of the minor’s ordinary residence, involving both factual and legal considerations, couldn’t be resolved without an inquiry into the case’s specifics. Such an inquiry isn’t permitted under an application pursuant to Order VII Rule 11 of the CPC.
Consequently, the father’s appeal was dismissed.