The intention to reside with permanence is crucial in determining the ordinary residence of a child, and the court has a responsibility to supervise the welfare of the ward.

I.P. Mukerji, J.

This case is about the court in which an application for custody of the child under Section 25 of the Guardians and Wards Act, 1890 is to be considered.

The minor, Ishita is very young, about nine years of age.

2. The parties were married on 13th May, 2007 according to Hindu rites. On 8th May, 2008 the child was born to them. On 12th July, 2010 the respondent wife left the matrimonial house with the daughter to stay with her parents. Since April, 2011 the wife has been staying at 68/1, Netaji Colony, Kolkata-90, separated from her husband in her aunt's house. The minor is in her custody, within the jurisdiction of the District Judge 24 Parganas (N). From 2012 the minor is going to a local school.

3. The learned District Judge Hooghly on 5th August, 2014 allowed the application of the wife challenging the jurisdiction of the Hooghly court. The application was made by the appellant/husband under Section 25 read with Section 9 of the said Act before the learned District Judge, Hooghly. The mother, Tumpa Malik took out a demurrer application under Section 4 (5) (b) (ii) of the said Act, saying that the Hooghly court had no jurisdiction to entertain the application, as the child did not ordinarily reside in any place within its jurisdiction and that the child resided in Baranagar within the jurisdiction of the District Judge 24 Parganas (N). The petition should be returned to the appellant/petitioner for presenting it in the proper court.

4. On behalf of the husband Mr. Mukherjee argued that a place where a child ordinarily resided connoted his place of permanent residence. Since the father's home was in Hooghly and the child lived there till 2012 it could be taken to be the permanent residence of the child. He also cited an example of a child being moved from place to place by the mother. That would not imply that the application under the said Act would be transferred from one court to another in harmony with the movement of the child. That could not be the intention of the legislature, he added. The place where the child ordinarily resided according to Mr. Mukherjee would denote the place of residence of permanent residence of the family to which the child belonged.

5. Some definitions in the Guardians and Wards Act, 1890 are very important.

6. The first is Section 4 (5) (b) (ii). It is set out herein below:-

"4(5) "the court" means-

(b) Where a guardian has been appointed or declared in pursuance of any such application-

(ii) In any matter relating to the person of the ward the District court having jurisdiction in the place where the ward for the time being ordinarily resides."

7. Section 25 of the Guardians and Wards Act, 1890 is also set out hereunder.

"25. Title of guardian to custody of ward- (1) If a ward leaves or is removed from the custody of a guardian of his person, the court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.

(2) For the purpose of arresting the ward, the court may exercise the power conferred on a Magistrate of the first class by Section 100 of the Code of Criminal Procedure, 1882 (10 of 1882).

(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship."

8. The question before us is whether this decision was correct? Whether the District Court at Hooghly, 24 Parganas (N) had the jurisdiction to hear the application of the appellant under Section 25 read with Section 9 of the Guardians and Wards Act, 1890?

9. What is the meaning to be ascribed to the phrase "ordinary residence of a child?"

10. It has to be appreciated that the role of the court does not end with the appointment of a guardian over a minor. Nor does the responsibility of the court cease with the appointment of a guardian. Th