Guardian & Wards Act | Child's 'Ordinary Residence' For Court's Jurisdiction Need Not Be Permanent Residence, It's A Question Of Fact: P&H HC

The Punjab & Haryana High Court has made it clear that for determining Court's jurisdiction "ordinarily resident" of child need not be permanent or or uninterrupted residence.

According to Section 9 of the Guardians And Wards Act, if the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor "ordinarily resides."

Justice Sureshwar Thakur and Justice Vikas Suri said, "“ordinarily resides”, that inferences became drawn (a) that the person concerned holding a permanent residence, thus on an interrupted basis at the place concerned, rather for therebys, their occurring conferment of adjudicatory jurisdiction (b) the concept/coinage “ordinarily resides”, rather is a concept that may also be transitory, besides the fact whether the quality of residence either is ordinary or general, rather than being merely for some special or limited purpose, but is of grave importance, more especially, the impartings of interpretations thereto, but is dependent on the intention to make the place “ones ordinary abode”.

It added that, the following factors needs to be considered for determining the "ordinarily residence" of the child:

a) A minor child having no independent volition, and or, but having a limited volition to choose a place of his residing with one or the other parent;

b) The natural corollary thereof being that a child being amenable to be removed by one of his parents from the custody of the other parent, which whom he was earlier to his being removed, rather was residing.

c) As such therebys, a minor child, thus cannot be construed to be holding at any place concerned, thus at the relevant time, rather any permanent residence nor therebys, a minor child can be stated to be ordinarily resident, at any place concerned, especially when he/she is prima facie deprived of exercising an independent volition, rather is prima facie under the dominant control of the parent, who assumes custody over him/her.

The Court was hearing an appeal challenging the Family Court's order, which dismissed an application under Order 7 Rule 11 CPC. The application sought to reject a custody petition based on Section 9 of the Guardian and Wards Act, which aimed to restore custody of a minor child to the petitioner.

The issue revolved around the jurisdiction of the forum. Section 9(1) of the Guardian and Wards Act, states that jurisdiction in child custody cases depends on where the minor "ordinarily resides." Therefore, determining valid jurisdiction requires properly interpreting the said phase.

The court, after reviewing various statutory provisions, concluded that Section 9 of the Guardian and Wards Act, determines the jurisdiction for guardianship applications. It clarified whether the application should be filed in the District Court where the child physically resides or if it should be assessed under Section 6(a) of the Hindu Minority and Guardianship Act.

The court emphasized that the minor child's residence should be evaluated based on specific facts. Key points include that a child lacks the independent ability to choose where to live, making it easy for one parent to move the child away from the other parent's custody. Consequently, a child cannot be considered to have a permanent residence or be 'ordinarily resident' in any place while under the dominant control of one parent.

It further highlighted that, the manner of removing a child from custody, especially if forcefully done without consent, affects the Family Court's jurisdiction and the child lack of independent choice in such situations is key to determining whether the court has authority over the case, based on the child's physical residence at the time of the application.

In the present case, the Court held that the husband's application under Order 7 Rule 11 CPC, seeking dismissal of the custody petition, was premature and unsupported by clear legal grounds. Since jurisdictional questions required evidence, the Trial Court rightly rejected the application.

Hence, the appeal was dismissed, and the Family Court was directed to proceed with the custody trial, ensuring its completion within six months.

Mr. Anil Kumar Garg, Advocate for the appellant.

Mr. Vipin Mahajan, Advocate for the respondent.

Title: RXXXXX v. XXXX

FAO-878-2025 (O&M)