The determination of a child's ordinary residence for jurisdiction under the Guardians and Wards Act, emphasizing the natural guardianship of the father and the compelling circumstances of the child's custody.

1. ORDER :- This Revision Petition has been preferred against the order dated 9-2-2007 passed in an Application No. 203/2006, by the District and Sessions Judge, Jhunjhunu (hereinafter referred as 'the Trial Court'), whereby application filed by the petitioner under Section 10 of the Guardians and Wards Act, 1890 (hereinafter referred as 'the Act of 1890') has been dismissed observing that the Trial Court has no jurisdiction to entertain the application.

2. The revision petition has been preferred against the impugned order on the ground that the Trial Court has not properly appreciated the facts and the law and came to erroneous conclusions observing that the Trial Court has no jurisdiction whereas it is asserted that the Trial Court has the jurisdiction as the child was ordinarily residing within the jurisdiction of the Trial Court and seeks to set aside the impugned order.

3. Heard learned counsel for the parties and perused the record.

4. Wazid Ali, petitioner and Smt. Rubina Bano, respondent No. 1 contracted marriage on 26-10-1998. They resided at their matrimonial house at Jhunjhunu. A child, Ayyanali was born out of the wedlock on 14-6-2003. Some misunderstanding developed between the spouses and the relations strained and gradually worsened. The respondent No. 1 left the house of the petitioner along with the child and started living with her parents. Ultimately the petitioner dissolved the marriage on 6-3-2006 by serving Talak upon the respondent No. 1. The child at the time of the dissolution of the marriage was of 2 years and 8 months and living with his mother. Smt. Hussain Bano, is the mother of the respondent No. 1, Smt. Rubina Bano, who is a permanent resident of Sikar and temporarily living at Bombay with her husband, who is running his business at Bombay. Smt. Rubina Bano, respondent No. 1 contracted another marriage with one Tanveer Ahmed on 20-8-2006. Noticing this development, on 31-8-2006 an application under Section 10 of the Act of 1890 was filed by the petitioner for custody of the minor child. The respondents filed the reply to the application presented by the petitioner before the Trial Court stating that the child is living with the maternal grandmother, Smt. Hussain Bano who is looking after the interest and welfare of the child but no plea of jurisdiction of the Court to entertain the application of the petitioner was raised. The Trial Court during the course of the proceedings directed the respondents to cause the appearance of the child in the Court. At that stage, the respondents filed an application stating therein that the Trial Court has no territorial jurisdiction to entertain the application as the child is living at Bombay which is his ordinary residence in terms of Section 10 of the Act of 1890.

5. It is also stated in the bar that on 11-9-2006, before filing objections to the application presented under Section 10 of the Act of 1890 by the petitioner, the respondent Smt. Hussain Bano, maternal grand-mother of the child, having his custody, filed an application under Section 125, Cr. P. C. for grant of maintenance for the child before the Magistrate at Jhunjhunu. The child has been handed over to the respondent No. 3, Smt. Hussain Bano, because of the compulsion of the re-marriage by the respondent No. 1, Smt. Rubina Bano. Smt. Hussain Bano, respondent No. 3 stated in the application that she is living at Sikar and the child is under her care and custody as her daughter has re-married to one Tanveer Ahmed and handed over the child to her for the welfare and nourishment of the child and for that reason the child need maintenance from his father. This application thereafter has been withdrawn by the respondents.

6. Learned counsel for the respondents has submitted that the question of jurisdiction has rightly been decided in accordance with law by the learned Trial Court as the Court had no jurisdiction as the child is living at Bombay with his maternal grandmother and not at Jhunjhunu.