The court's jurisdiction to entertain guardianship petitions is limited to minors who ordinarily reside within its jurisdiction.

Headnote:
GUARDIANSHIP - JURISDICTION - ORDINARILY RESIDENT - INTER-STATE TRANSPORTATION OF MINORS - SECTION 9(1) OF THE GUARDIANS AND WARDS ACT, 1890 - CLAUSE 17 OF THE LETTERS PATENT - SECTION 3 OF THE GUARDIANS AND WARDS ACT - HELD, MINORS NOT ORDINARILY RESIDENT IN BOMBAY - PETITIONS RETURNED FOR PRESENTATION TO PROPER COURT.
Fact of the Case:

Numerous petitions were filed in the Bombay High Court seeking guardianship of minors for the purpose of foreign adoption. The minors were brought to Bombay from various other states, allegedly for the sole purpose of being sent abroad for adoption. The Indian Council of Social Welfare (the Council) objected to the petitions, arguing that the minors did not ordinarily reside in Bombay and that the court lacked jurisdiction to entertain the petitions.
Finding of the Court:

The court found that the minors were not ordinarily resident in Bombay, as they had been brought to the state solely for the purpose of foreign adoption and had no intention of making Maharashtra their permanent home. The court held that the petitioners' attempts to manipulate the minors' residence in Bombay in order to establish jurisdiction were a fraud on the court.
Issues: 1. Whether the minors were ordinarily resident in Bombay within the meaning of section 9(1) of the Guardians and Wards Act, 1890? 2. Whether the court had jurisdiction to entertain the petitions for guardianship of the minors.
Ratio Decidendi: 1. The court interpreted the term "ordinarily resident" in section 9(1) of the Guardians and Wards Act, 1890, as requiring a genuine intention to make a state one's home, rather than a mere temporary stay. 2. The court held that the minors' residence in Bombay was manipulated and transitory, and that they did not intend to make Maharashtra their permanent home. Therefore, they were not ordinarily resident in Bombay and the court lacked jurisdiction to entertain the petitions.
Final Decision: The court dismissed the petitions and ordered them to be returned for presentation to the proper court.

JUDGMENT - Lent in B. J.:-Is this Court to be the clearing house for the export of Indian children transported by devious means to this State from other States for the avowed purpose of being handed over in foreign adoption ? That, bluntly put, is virtually the common question I must answer in these petitions. I do so by this common judgment.

2. The ages of the minors offered for foreign adoption in these petitions range from 6 months to 8 years, five of them being under one year. All these children are born and are said to be abandoned in States other than the State of Maharashtra and were left in the care of institutions in these States, to wit,Karnataka, Gujarat and Andhra Pradesh, except in Miscellaneous Petition No. 86 of 1982 where the minor is said to havebeen handed over at Andhra Pradesh to one Sister Mary Ella Stewart during her short visit to that State. Soon thereafter these institutions transferred these children ostensibly to certain institutions in Maharashtra, to wit, Norwegian Free Evangelical Mission at Jalgaon, Ishaprema Neketan at Poona and Vimala Dermatological Centre, Catholic Nurses Guild and Missionaries of Charity at Bombay. The minor in Misc Petition No. 86 of 1982 was also ostensibly transferred to the Catholic Nurses Guild at Bombay. However these insti-tutions were deliberately and totally by-passed. Not for an instant were any of these minors kept at any of these institutions. They did not even arrive there. Nor were they intended to. The minor in Misc. Petition No. 86 of 1982 was taken by Sister Mary Ella Stewart directly to her friend one Mrs. Sheela Agiar and kept at her residence at Bandra. The minors in the remaining petitions were brought to Bombay and were directly taken to Kindercare Centre of Shenoi Welfare Services (referred to hereafter as “the Shenoi Welfare Centre”), more of which later. Not less than 6 children (Misc. Petitions Nos. 29 of 1982, 234 of 1982, 265 of 1982, 296 of 1982, 400 of 1982 and 401 of 1982) were brought from the parent States to Bombay by the petitioners' learned advocate Mr. B. D. Shenoi himself. Shortly after the minors were thus brought to Bombay within periods ranging from 1 day to 3? months the present guardianship petitions were filed, except Misc. Petition No. 401 of 1982 where the minor was brought to Bombay on 13th July 1980 and the present petition was filed on 16th June 1982 after an earlier petition in respect of the same minor (Misc. Petition No. 439 of 1980) filed on 19th August 1980 was dismissed on 17th September 1980 and the appeal against the dismissal was withdrawn on 27th April 1982. Such are the undisputed facts touching the present preliminary issue which I am called upon to decide, namely, whether this Court has the jurisdiction to entertain these petitions.

3. Relying on section 9 (1) of the Guardians and Wards Act, 1890, it was urged by the Indian Council of Social Welfare (referred to hereafter as “the Council”) that this Court has no jurisdiction to entertain these petitions as the minors do not ordinarily reside within the jurisdiction of this Court. To the contrary was urged by the petitioners.

4. Section 9(1) of the Guardians and Wards Act reads as under : -

“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.” (Emphasis supplied.)

On behalf of the Council it was contended that the minors do not ordinarily reside in Bombay, as they have been temporarily brought to Bombay from various States, merely and for the express purpose of being pushed forward abroad in foreign adoption. On the other hand, it was urged on behalf of the petitioners that the minors having permanently left their States of origin and having come to Bombay, must necessarily be considered to ordinarily reside in Bombay, with the result that this Court has the jurisdiction to entertain these petitions.

5. To start with, residence may be

Click Here to Read the rest of this document