The determination of the ordinary place of residence for minors in the context of guardianship jurisdiction is based on the intention to settle down and the children's best interests and welfare.

MANMOHAN SINGH, J.

1. The respondent herein filed a petition under Sections 7 and 17 of the Guardians and Wards Act, 1890 read with Sections 6 and 13 of the Hindu Minority and Guardianship Act, 1890, seeking custody of the minor daughters namely, Ms. Sara Sehgal and Ms. Sana Sehgal. The respondent also filed an application alongwith for the interim custody of children during Diwali holidays.

2. After receiving the summons, petitioner appeared and apprised the Court about the facts of the case and further as provided under Section 9 of Hindu Minority and Guardianship Act, 1890 filed an application under Order 7 Rule 11 CPC seeking rejection of the petition due to lack of territorial jurisdiction.

3. The petitioner also on 9th January, 2013 filed a petition under Section 25 of Guardianship and Wards Act, read with Section 7(1)(a) of the Family Court, before the Principal Judge, Family Court, Lucknow.

4. It is contended by the petitioner that since the children are residing in Lucknow where they are attending school presently, the said petition for their custody ought to have been filed at Lucknow and not Delhi. The case of the respondent is that the permanent place of residence of the minor children is Delhi being the place where there is matrimonial home of the respondent as well as that of the parents of the petitioner. Both the parental home and maternal home are in Delhi. Even otherwise petitioner being an army personnel gets transferred from one place to another and Delhi is the permanent residence of the petitioner as well as the respondent and both the children so the Delhi court has jurisdiction to decide the petition filed by her.

5. It is also argued by the respondent that around April 2012, it was decided between the Petitioner and the respondent that the respondent with the kids would settle in Delhi and so they got them admitted to ASN School, Delhi. After marriage, the couple were residing in Delhi. However, there were frequent transfers of the petitioner to Secundarabad, Jodhpur, Assam, Alwar and Lucknow and because of the frequent transfers, the schools were getting changed frequently and daughters could not settle. Keeping this in mind, it was decided that Respondent alongwith the daughters would settle in Delhi. The salary account of the petitioner is in Delhi in ICICI Bank in Kalkaji and also bank lockers in State Bank of Bikaner and Jaipur, Kalkaji and the permanent address given for correspondence is also of Delhi. The present address of the Petitioner keeps on changing whereas the permanent address remains in Delhi. It is contended that the petitioner had filed a divorce petition on false and frivolous grounds in Lucknow in which also he mentioned his permanent address as 4/15, Kalkaji, New Delhi-19.

6. The findings of the learned court below are that the admission on the part of the petitioner that the kids have been residing in Lucknow from June, 2012 after being brought there by the Respondent shows that Lucknow is not the ordinary place of residence and is not the place where the minor children ordinarily reside. It is also admitted by the petitioner that his job is transferable and in such circumstances, every place where he is posted cannot be said to be place of ordinary residence. The respondent cannot be expected to be running after the Petitioner with her petition for guardianship wherever he is transferred and to file the petition in that jurisdiction. A mere enrolling of minor children in Lucknow school for 4 months will not confer the jurisdiction of the Lucknow court.

7. The fact that the petitioner is serving in Indian Military and has a transferable job is admitted by the learned Senior counsel for the petitioner. In the application under Order 7 Rule 11 CPC the petitioner admits that it was only in June, 2012 that the respondent brought the children from Delhi to Lucknow after the petitioner was posted at Lucknow.

8. It is not disputed that the marriage between the parties took place