For a child below 5 years of age, the residence of the mother determines jurisdiction for guardianship proceedings under the Act of 1890, as interpreted in conjunction with Section 6 of the Act of 1956.

ORDER :- This revision petition is directed against the order dated 11-2-2008 as passed by the District Judge, Merta in the proceedings under the Guardians and Wards Act, 1890 ('the Act of 1890') rejecting an application moved by the petitioner-father under Order VII, Rule 11 of the Code of Civil Procedure and rejecting his contention that the Court at Merta has no jurisdiction to deal with the matter because the minor son of the parties, custody of whose person is in question, is living with his father at Jodhpur.

2. A brief reference to the background facts would suffice. The non-petitioner (hereinafter also referred to as 'the mother') has filed the aforesaid petition under Section 10 of the Act of 1890 stating the facts about her marriage with the petitioner (hereinafter also referred to as 'the father') on 3-6-2001 and out of this wedlock, the child master Durgesh having born on 28-9-2004. While stating various facts and incidents when she was compelled to leave or was forcibly removed from the matrimonial house and was harassed by the petitioner and his family, the mother has ultimately referred to the incidents of 17-6-2006 and 18-6-2006 when, according to her, the child Master Durgesh was removed from her custody and under the compelling circumstances she was taken by her father to Merta. Narration of such facts and aspects is not necessary for the purpose of the present petition involving only the question of jurisdiction; however relevant aspects of the matter are that at the time of filing of the aforesaid petition, the child was about 1- years of age and the mother, residing at Merta, submitted in her application that Master Durgesh was in Jodhpur since 18-8-2006. While stating that the child was of tender age, was not even capable of speaking properly and could be harmed by the father and his parents, the mother prayed for guardianship of the person of minor Durgesh.

3. The father (present petitioner) has filed a reply, inter alia, with the submissions that the mother was not living with him for his having contacted incurable disease and being required to remain under rest as per the medical advice. It has been averred that the minor Master Durgesh was living with his grandfather and father quite comfortably and it is in his welfare to live with them only. It has also been alleged that the mother and her parents are not in a position to take care of the child.

4. The petitioner-father also submitted an application under Order VII, Rule 11 of the Code of Civil Procedure in the aforesaid proceedings under the Act of 1890 with the submissions that the petition was not maintainable in the Court at Merta for want of jurisdiction particularly when the child Master Durgesh is ordinarily residing with his natural father at Jodhpur. The mother put the application to contest with the submissions that in the case of the child of tender age, the expression 'ordinary residence' refers to the residence of the mother of the minor because she is the legal guardian for the child below 5 years of the age.

5. After hearing the parties, the learned District Judge, Merta by the impugned order dated 11-2-2008 has proceeded to reject the application moved by the petitioner-father with the observations that the mother is living at Merta City and has stated the age of her son below 5 years. The learned Judge with reference to the cited decisions, has observed that the wife was required to be saved from the burden of litigation and for the child below 5 years of age, it would be presumed that he lives with the mother and the petition would be maintainable by the mother in the Court related with her residence. The considerations and conclusions of the learned District Judge read as under :

(Vernacular matter omitted…..Ed.)

6. Assailing the order aforesaid, learned counsel for the petitioner-father has strenuously contended that as per the requirements of Section 9 of the Act