Minor's 'ordinarily resides' jurisdiction determined by stable residence, not temporary placement; welfare of the child paramount.

JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. The petitioner has assailed the order no. 15 dated 12.10. 2023 passed in Misc. Case No.29 of 2022.

2. It is submitted on behalf of the petitioner that petitioner preferred an application under section 9 of the Guardian and Wards Act, before learned Additional District Judge, Fast Track Court III, Barrackpore, North 24 Parganas.

3. Opposite party/wife submitted that the opposite party/mother and the ward are resident at present at Bhubenewar and they are residing therein since first weeks of January, 2022 and the ward is presently studying in class VII of St. Xavier’s International High School at Patia Bhubeneswar.

4. Learned court below by the impugned order observed that mere factual residence at a place at the time of proceeding is not sufficient to confer jurisdiction of the expression “ordinarily resides” appearing in section 9(2). The jurisdiction would be under the District Judge where the minor ordinarily resides. Accordingly, he holds that since he never stayed with her mother at her parental house at Salkia, Howrah and that the child along with his mother is residing for a considerable period of time at Bhubeneswar, Orissa so his ordinary place of residence should be treated as Bhubaneswar and as such invoking his jurisdiction under Order VII Rule 10 of the Code of Civil Procedure, he returned the plaint to the petitioner for presenting it before the appropriate forum.

5. Being aggrieved by the aforesaid order, learned counsel for the petitioner submits that the child was born at his paternal house at Salkia, within the jurisdiction of District Judge Howrah, and the Aadhar Card of the child as well as her mother is still showing their address within the jurisdiction of Howrah, which is also the matrimonial house of petitioner’s wife.

6. Therefore, since the permanent address of the mother and the ward is within the jurisdiction of learned District Judge, Howrah, so the court below was not justified in returning the plaint for presentation before any other forum. In this context, petitioner’s counsel relied upon judgments of this High Court passed in the case of Priyanka Mohata -vs- Ashwin Mohata reported in 2024 CAL 835, Dipika Agarwal Nee Khaitan –vs- Rishi Agarwal reported in AIR Online 2020 CAL 326 and Smt. Soumi Mukherje Vs. Manas Mukherjee reported 2019 AIR CC 2600 (CAL).

7. Learned counsel for the opposite party raised objection contending that he has filed affidavit-in-opposition and in such opposition he has annexed the documents about the schooling of the ward at Bhubaneswar and also the tenancy agreement, which clearly states that the ward along with her mother are presently staying at Bhubaneswar for pursuing further studies of the child and as such, it cannot be said ordinary residence of the child is within the jurisdiction of learned District Judge, Howrah.

8. Learned counsel for the opposite party in support of his contention has relied upon a judgment of the Apex Court in the case of Ruchi Majoo –vs- Sanjeev Majoo reported in (2011) 6 SCC 479.

9. Having heard learned counsel for the petitioner and the opposite party, it appears that there is no dispute about the fact that the ward at present is residing at Bhubaneswar along with his mother and he is studying there in Class-VII in St. Xavier’s International High School, Bhubaneswar.

10. Therefore, the issue involved in the instant case is that since Section 9(2) of the Gurdian and Wards Act has expressly stated that the place of jurisdiction in such cases would be where the minor ordinarily resides, therefore, the word “ordinarily resides” is to be considered in the present context to come to a concl