The central legal point established in the judgment is that the determination of the ordinary residence of a minor under Section 9(1) of the Guardians and Wards Act depends on the intention of both parents, and the intention expressed by both parents is crucial in deciding the ordinary residence of the minor.

1. Heard finally by consent of both the parties.

2. Admit.

3. This appeal is preferred against the order dated 12.09.2017 passed by the learned Judge, Family Court No.2 Nagpur. By this order, the learned Judge returned the petition holding that the Family Court at Nagpur does not have jurisdiction to try the petition filed under Sections 7, 12 and 25 of the Guardians and Wards Act, 1890 seeking orders as to guardianship, interim protection and custody of the minor, a daughter aged about 7 years. Therefore, the petition came to be returned to the appellant for it's being presented to a Court having jurisdiction over the issue involved in the petition, which in the opinion of the Family Court No. 2, Nagpur was District Court, Rajamundry, Andhra Pradesh.

4. I have gone through the paper book of the case which is part of this appeal and also the impugned order. I have heard learned counsel for the appellant and the learned counsel for the respondent. The only point that arises for my determination is:-

“Whether the family court at Nagpur has jurisdiction to try the petition?

5. According to the learned counsel for the appellant, the impugned order is illegal and therefore, it deserves to be quashed and set aside. He submits that since birth, the minor child of the parties was a resident of Nagpur and that she even pursued her education at Nagpur till she was removed unilaterally and illegally from the custody of the appellant by the respondent. The date of removal of the minor from the custody of the appellant was of 21.11.2016, as submitted by the learned counsel for the appellant. He submits that Section 9(1) of the Guardians and Wards Act 1890 confers the jurisdiction over that Court which is situated at a place where the minor ordinarily resides. In the fact situation of this case, he further submits, the ordinary place of residence of minor could not have been anything else but Nagpur. He also submits that even as regards the issue of jurisdiction of Nagpur Court, the Hon'ble Supreme Court did not think that Nagpur Court had no territorial jurisdiction when it dismissed the Transfer Petition bearing Transfer Petition (Civil) No. 95/2017 filed by the respondent seeking transfer of the petition from Nagpur Court to Rajamundry Court, Andhra Pradesh by its order dated 14.02.2017. So, he further submits that the preliminary objection taken by the respondent on the territorial jurisdiction of Nagpur Court was barred by principle of res judicata.

6. Shri Bajaj, learned counsel for the respondent submits that there is no need for any interference with the impugned order. He submits that it is an admitted fact that after minor was shifted to Rajamundry by the respondent, the minor was admitted to a School at Rajmundry and that now she is residing at Rajamundry. He submits that the expression “ordinarily resides” used in Section 9(1) of the Guardians and Wards Act has to be understood in the context of the intention of the parties and in a case like this, intention would be that of a mother i.e. the respondent, with whom the minor is residing. He also submits that there is nothing like inter-parental kidnapping and at the most, the shifting of minor as in the present case, could be considered to be relocation of the minor, done for minor's welfare and better future. He points out that the Law Commission has proposed a new bill to make suitable amendments to the Guardians and Wards Act so as to allow relocation of minor in order to achieve the ultimate object of securing his/her welfare. On the submission of the issue being decided by the Hon'ble Apex Court and bar of res judicata, he submits that basically the transfer application could not be considered to be a suit and that the respondent had never taken any preliminary objection on territorial jurisdiction of the family court at Nagpur before the Hon'ble Apex Court and therefore, the principle of res judicata cannot come into play in the present case.

7. Section 9(1) of the Guard