SANJAY KISHAN KAUL, J.

( 1 ) ADMIT.

( 2 ) AT the request of the learned counsel for the parties, the petition is taken up for final disposal.

( 3 ) THE tussle for the custody of the minor child brought by the respondent to india from Canada has given rise to the present petition.

( 4 ) THE petitioner is the father of Anika, a girl child born on 5. 11. 1998 in canada out of the wedlock between the parties. The petitioner, the respondent and the minor girl are all Canadian citizens.

( 5 ) PRIOR to the dispute, the petitioner and the respondent were married for 12 years since 1991 and were residing in Canada. During this period of time both the petitioner and the respondent were gainfully employed.

( 6 ) THE respondent along with Anika came to India on 2. 12. 2003 for a planned visit and were to stay in India till 2. 2. 2004 Both of them came to India on return tickets of the said dates. The return was postponed and ultimately in the latter part of February 2004, the respondent informed that she had no intention to return back to Canada. The petitioner immediately contacted the respondent through E-mail expressing concerns about Anika s future and the need of the respondent to return back to Canada. However, the respondent wanted a divorce and the custody of Anika. The petitioner filed proceedings in Canada. The competent court in Canada on 8. 4. 2004 passed an interim order in favour of the petitioner for custody of the child.

( 7 ) THE respondent had, in the mean time, filed a petition on 25. 3. 2004 before the designated court under the Guardians and Wards Act, 1890 (hereinafter referred to as the said Act ). The petitioner moved the Delhi High Court by way of a habeas Corpus petition bearing No. 842/2004, which was disposed off by the division Bench on 3. 11. 2004, declining to pass an order as the custody of the mother was not illegal and it was for the Guardianship Court to consider the matter expeditiously. The Division Bench also observed that the Guardianship court will remain uninfluenced by the observations made by the Division Bench.

( 8 ) THE petitioner filed an application raising preliminary objections to the jurisdiction of the Court and the said application was dismissed vide order dated 14. 2. 2005 by the Guardian Judge. The petitioner aggrieved by the same has filed the present petition.

( 9 ) IN order to appreciate the legal plea it is necessary to reproduce Section 9 of the said Act, which reads as under:"9. Court having jurisdiction to entertain application.- (1) 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. (2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District court having jurisdiction in a place where he has property. (3) If an application with respect to the guardianship of the property of the minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction. "

( 10 ) THE controversy which thus arise in the present case is whether the minor anika can be said to be ?ordinarily residing? within the jurisdiction of the courts at Delhi.

( 11 ) LEARNED counsel for the petitioner submitted that for almost five years from the birth, Anika was residing in Canada. It is only in December 2003 that the respondent brought the child to India and in March 2004 filed the petition before the Guardianship Court. It was, thus, submitted that the child could not be one, who ?ordinarily resides? within the territorial jurisdiction of the courts at Delhi. Learned counsel submitted that the respondent indulg

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