JUDGMENT :

VIVEK SINGH THAKUR, J.

1. Petitioner had approached the Family Court, Shimla by filing a petition under Section 25 of Guardian and Wards Act 1890 (in short ‘the Act’), against his wife and one other, for the custody of his minor son.

2. Learned District Judge/Family Court vide impugned order dated 3.11.2020 has returned the petition preferred by petitioner along with documents for its presentation before the appropriate Court of law with observation that matter is not within jurisdiction of his Court as minor son is not residing within jurisdiction of his Court. Reliance has also been placed by Family Court on a pronouncement of High Court of Allahabad in case of Dr.Vinay Samuel Arawattigi vs. Principal Judge, Family Court, Kanpur reported in AIR 2007 Allahabad 13.

3. Being aggrieved by aforesaid order passed by Family Court, Shimla, petitioner has approached this Court and has relied upon judgments passed by Apex Court in Ruchi Majoo vs. Sanjeev Majoo, reported in (2011)6 SCC 479; and also pronouncements of different High Courts in Ramesh Bhardwaj vs. Ram Saran Dass, reported in (1998-3) 120 P.L.R.35; Bhagyalakshmi and another vs. K. Narayana Rao reported in AIR 1983 Madras 9; and Hariom Ram Pratap vs. Sunil reported in AIR 2011 Rajasthan 138. He has also relied upon judgment of Allahabad High Court, in support of his plea, which has been relied upon by Family Court for returning the petition.

4. Impugned order has been passed at the initial stage without issuing notice to respondent. Therefore, I am of the opinion that in present petition also, issuance of notice to respondent is not necessary as no order has been passed by Family Court on merits, but, the petition filed by petitioner has been returned for its presentation before the appropriate Court of law.

5. Provisions of Section 9 of the Act, relevant to present case, prescribing jurisdiction to entertain the application are as under:-

“9(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”

6. Discussing the meaning and scope of expression “where the minor ordinarily resides”, the Supreme Court in Ruchi Majoo’ case (referred supra) has observed as under:-

“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. It may 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 an enquiry into the factual aspects of the controversy.

25. The factual aspects relevant to the question of jurisdiction are not admitted in the instant case. There are serious disputes on those aspects to which we shall presently refer.

26. We may before doing so examine the true purpose of the expression `ordinarily resident' appearing in Section 9(1) (supra). This expression has been used in different contexts and statutes and has often come up for interpretation. Since liberal interpretation is the first and the foremost rule of interpretation it would be useful to understand the literal meaning of the two words that comprise the expression. The word `ordinary' has been defined by the Black's Law Dictionary as follows:

"Ordinary (Adj.) :Regular; usual; normal; common; often recurring; according to established order; settled; customary; reasonable; not characterized by peculiar or unusual circumstances; belonging to, exercised by, or characteristic of, the normal or average individual."

The word `reside' has been explained similarly as under:

"Reside: live, dwell, abide, sojourn, stay, remain, lodge. (Western- Knapp Engineering C