The 'ordinary residence' of children determines jurisdiction in custody matters under the Act of 1890.

JUDGMENT :

1. This writ petition under Articles 226& 277 of the Constitution of India has been preferred claiming the following reliefs.:

“Hence it is, therefore respectfully prayed that the writ petition filed by the petitioner be allowed by passing an appropriate writ, order or direction:-

a). That the order passed by the learned trial Court dated 28/05/2022 Annex. 4 may kindly be quashed and set aside.

b). That the application filed by the petitioner non-applicant under Order 7 Rule 10 read with Sec 151 CPC and Sec 9 of the Act of 1890 Annex. 2, be allowed as prayed therein.

c). Any other order or direction which this Hon’ble Court deems just and proper may kindly be passed in favour of the petitioner.

d). That the petitioner may be awarded the cost of the litigation.”

2. As per the pleaded facts, the respondent (father) filed an application (registered as case no.59/2016) under the provisions of the Guardian and Wards Act, 1890 (hereinafter referred to as ‘Act of 1890’) before the learned Additional District Judge, Bali, District Pali for claim of guardianship of his daughter and son, namely, Harshita and Yakshat respectively, along with an application for interim custody of children, against the petitioner. Thereafter, an application was filed under Order 7 Rule 10 read with Section 151 CPC along with Section 9 of the Act of 1890 by the petitioner (mother) wherein it was stated that since the children were living in Mumbai alongwith petitioner’s mother, thus the learned Court did not have jurisdiction over the matter.

2.1. Subsequently, a reply was submitted by the respondent (father) and learned Court below vide the impugned order dated 28.05.2022, the application filed by the petitioner (mother) was rejected. Thus, aggrieved by the impugned order dated 28.05.2022 the present petition has been preferred claiming the afore-quoted reliefs.

3. Learned counsel for the petitioner (mother) submitted that the children had been living in Mumbai alongwith her mother since 2013, while the application was filed by the respondent (father) in the year 2016, thus ordinarily, the residence of the minor children was with the mother since many years; hence, as per the provisions of Section 9 of the Act of 1890, the application was to be filed by the respondent (father) before the competent Court at in Mumbai, but the same was filed before the learned Court below, which did not have jurisdiction to hear the above-said application, and thus, the same should have been returned to be filed before Court of competent jurisdiction.

3.1. It was further submitted that the expression “where the minor ordinarily resides” needs to be interpreted to mean the residence of the mother of the children of tender age; in the present case, the age being 3 & 6 years respectively, therefore such place would mean the residence of the mother, and thus, the application filed by the respondent (father) lacked jurisdiction; in furtherance, it was submitted that the respondent (father) had made improvements in his reply to the application filed by the petitioner (mother) by stating contrary to the application for the custody in question that the petitioner (mother) resided in Rani.

3.2. In order to fortify, the aforesaid submissions, reliance was placed on the following judgments:

(a) Simple Sharma v. Ishawar Prakash (S.B. Civil Transfer Appl. No.98/2020 decided on 08.04.2021) by a Coordinate Bench of this Hon’ble Court.

(b) Smt. Sarabjit v. Sh. Piara Lal & Anr., (Civil Misc. No. 3233CII of 2005 and another connected matter decided on 01.04.2005), by the Hon’ble High Court of Punjab & Haryana.

(c) K.C. Sashidhar v. Smt. Roopa (C.R.P. No. 891 of 1922 decided on 07.07.1992) by the Hon’ble High Court of Karnataka.

(d) Dandu Sridhar v. Pothamashetty Padma Priya (CMA No. 3985/2003 decided on 29.12.2003) by the Hon’ble High Court of Andhra Pradesh.

(e) Madhav Singh & Anr. v. Smt. Basanti (S.B. Civil Revision No. 134/2009 decided on 06.11.2013) by a Coordinate Bench of this Hon’ble Cour