JUDGMENT

Goverdhan Bardhar, J. - This civil misc. appeal has been filed by the appellantwife under section 19 of the Family Court Act, 1984 against the order dated 08.02.2019 passed by learned Judge, Family Court No.2, Jaipur, whereby the application filed by the appellant-wife under section 7 Rule 11 CPC has been dismissed.

2. Learned counsel for the appellant-wife argued that the learned Family Court while passing the impugned order did not consider the mandatory provisions of law while dismissing the application filed by the appellant-wife under Order 7 Rule 11 CPC. Learned Family Court while passing the impugned order has failed to consider that the respondent-husband in the plaint has mentioned that the minor is residing and under study at Shivgunj, District Sirohi since 2017 and prior to it, the minor was residing and under study at Udaipur in the year 2016 and the respondent-husband knowing well all these facts filed the petition seeking custody and declaration of valid guardian in the year 2017 before the learned Family Court. Thus the petition filed by the respondent-husband before the learned Family Court at Jaipur seeking custody and declaration of valid guardian is barred by law as per provisions of section 9 of the Guardians And Wards Act, 1890 ('the Act of 1890' for short) which is mandatory in nature. And provisions of section 26 of the Act of the Hindu Marriage Act, 1955 ('the Act of 1955' for short) do not supersede the provisions of section 9 of the Act of 1890. The learned Family Court rejected the application of the appellant-wife completely on perverse finding.

3. Heard learned counsel for the appellant-wife and gone through the impugned order dated 08.02.2019 passed by the learned Family Court.

4. Indisputably, the minor child is not permanent resident of Sirohi and he was to be admitted to School in Sirohi for purpose of pursuing study. The appellant-mother had in her application made assertion that the minor was, on the date of the presentation of the application to continue living in Sirohi in order to pursue the study, admittedly the mother of minor child is resident of Jagatpura, Jaipur. The brief stay of the minor for the purpose of pursuing study in Sirohi cannot confer jurisdiction exclusively upon Sirohi Court under section 9 of the Act of 1890. The word 'resides' implies something more than a casual stay at a particular place.

5. In a case reported in Ruchi Majoo vs. Sanjeev Majoo, (2011) 6 SCC 479 , the Hon'ble Apex Court in para 23 and 24 has held ad-infra:-

"23. section 9 of the Guardians And Wards Act, 1890 makes a specific provision as regards the jurisdiction of the court to entertain a claim for grant of custody of a minor. While sub-section (1) of Section 9 identifies the court competent to pass an order for the custody of the person of the minor, sub-sections (2) and (3) thereof deal with courts that can be approached for guardianship of the property owned by the minor. Section 9(1) alone is, therefore, relevant for the purpose. It says:

"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."

24. It is evident from a bare reading of the above that the solitary test for determining the jurisdiction of the court under Section 9 of the Act is the "ordinary residence" of the minor. The expression used is "where the minor ordinarily resides". Now whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. If may be at best be a mixed question of law and fact, but unless the jurisdictional facts are admitted it can never be a pure question of law, capable of being answered without any enquiry into the factual aspect of the controversy."

6. Thus, the minor is ordinarily residing at a given place is primarily a question of intention which