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HIGH COURT OF JAMMU AND KASHMIR
SABAHAT SANNA – Appellant
Versus
SHABIR AHMED – Respondent
JUDGMENT :
Sanjeev Kumar, J.
1. This appeal by one Sabahat Sanna filed under Section 19 of the Family Courts Act, 1984 is directed against an order dated 25th July, 2024 passed by the Principal Judge, Family Court, Jammu [“the trial Court”] in File No. G&W Act/4176/2023 titled "Sabahat Sanna vs Dr. Shabir Ahmed‟ whereby the trial Court has returned the application filed by the appellant under Sections 12 and 25 of the Guardian and Wards Act, 1890 [“Act”] in terms of Order VII Rule 10 read with Rule 10-A CPC for its presentation before the competent Court of jurisdiction.
2. Briefly put the facts leading to filing of this appeal are that the appellant filed an application under Sections 12 and 25 of the Act to seek custody of her minor daughters, aged 5 years and 4 years respectively. The application was resisted by the respondent, who, at the outset, took a preliminary objection that in view of Section 9 of the Act, the trial Court lacked jurisdiction to entertain the petition as both the minors were putting up at village Parat, Tehsil Mendhar, District Poonch .
3. The trial Court, relying upon the provisions of Section 9 of the Act, came to the conclusion that the jurisdiction of the
Jurisdiction for custody applications is determined by the minor's ordinary residence, not the deemed custody with the mother under personal law.
Territorial jurisdiction of Court – Minor may be in deemed custody of mother but for the purpose of determining jurisdiction, it is ordinary residence of minor that would be relevant.
Jurisdiction for custody petitions lies where the child ordinarily resides, not merely where parents are located; interpretation of relevant statutes must prioritize the child's actual living circums....
The custody applications are governed by the principle of 'ordinary residence'; mothers are deemed natural guardians of their minor children under five, irrespective of actual custody.
Minor's 'ordinarily resides' jurisdiction determined by stable residence, not temporary placement; welfare of the child paramount.
The jurisdiction for custody applications under the Guardian and Wards Act depends on the child's actual residence, distinct from natural guardianship provisions.
Jurisdiction in custody matters is determined by the ordinary residence of minors, which must be established based on current living arrangements rather than historical context.
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