The main legal principle established is that the court where the minor ordinarily resides has jurisdiction over custody matters, as per the provisions of the Family Courts Act, 1984 and the Guardian and Wards Act, 1890.

JUDGMENT

Siddharth Mridul, J.

The present petition under Article 226 of the Constitution of India, essentially, seeks a direction to respondent No.3 to 5, to handover the custody of the minor child, Darshana to the petitioner, who claims to be her father.

2. The facts as are necessary for the adjudication of the present writ petition, briefly encapsulated as follows:

a. The petitioner is a former employee of the Indian Army and presently resides with his wife, Smt. Anguri, and his minor son, namely, Prince at New Delhi.

b. Whilst married to Anguri Devi, the petitioner is stated to have had a live in relationship with one Ms. Beena D/o Sh. Babul Chand Mess resident of Guwahati, Assam.

c. The petitioner states that, Ms. Beena gave birth to two children, namely, Prince and Darshana on the 25.05.2008 and 11.12.2014 respectively, born out of the aforementioned live in relationship.

d. Ms. Beena is stated to have been detected with serious complications in a subsequent pregnancy and was admitted for treatment in Satribari Christian Hospital, Guhawati, Assam, where she is stated to have breathed her last on 26.12.2015.

3. It is an admitted position that, Darshana, the minor child born from his live in relationship with Ms. Beena, has been residing all along with respondent Nos.3 to 5, her mausi, nani and mausa respectively, in Guwahati Assam.

4. The petitioner states that, on the 27.01.2019, he visited the residence of Darshana and respondent Nos.3 to 5, along with his lawyer in Guwahati and asked for the custody of his minor daughter, which was declined.

5. The petitioner is then, stated to send a complaint to Station House Officer, Police Station Kishan Garh, Delhi Police, as well as the Commissioner of Police, Guwahati, Assam on 22.06.2019.

6. Aggrieved by the inaction on behalf of the abovementioned police authorities, the petitioner has instituted the present petition seeking custody of the minor child, Darshana.

7. Predicated on the ratio of the decision of the Hon'ble Supreme Court of India, in 'Tejaswini Gaud and Ors. vs. Shekhar Jagdish Prasad Tewari and Ors, 2019 AIR SC 2318'; learned counsel appearing on behalf of the petitioner would urge that this Court ought to exercise its extraordinary power, the jurisdiction under Article 226 of the Constitution of India, and allow the habeas corpus petition, directing respondent Nos.3 to 5, to handover the custody of minor child, Darshana to him.

8. There can be no quarrel with the position in law that, a habeas corpus petition seeking custody of a minor child is maintainable under Article 226 of the Constitution of India.

9. However, in the present case, it must be observed that, the Court exercising territorial jurisdiction over the minor child Darshana, is the Court, where the latter ordinarily resides, in terms of the provisions of the Family Courts Act, 1984 and in particular the provisions of Section 7(g) thereof, read in conjunction with Section 9 of the Guardian and Wards Act, 1890, which are reproduced respectively as follows:

"7. Jurisdiction-

(1) Subject to the other provisions of this Act, a Family Court shall-

(a) xxx xxx xxx

(b) xxx xxx xxx

(c) xxx xxx xxx

(d) xxx xxx xxx

(e) xxx xxx xxx

(f) xxx xxx xxx

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor."

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 a minor is made to a District Court other than that having jurisdiction in the place wh