The ordinary place of residence of the minor children determines the jurisdiction of the court in custody disputes, and the court of that area retains jurisdiction even if the children are removed from that place.

M.M.S. BEDI, J.

1. Appellant-wife had filed a petition under Sections 7 and 27 of the Guardian and Wards Act, 1890 read with Section 6 of the Hindu Minority and Guardianship Act at Gurgaon for custody of her two minor children namely Master Jeet and Master Aayush alleging that both the minors had been in custody of the petitioner-husband since birth and were residing in Gurgaon.

2. She claimed that she was beaten by her husband in March 2011 by her husband. She remained hospitalized for some time. Again in the month of October 2013 the appellant was beaten by her husband and without any reason similar occurrence took place on July 2014 on account of demand of dowry of the respondent having not been fulfilled. After she was beaten up on 2.2.2015 by her husband and family members the appellant came back to her parental home and has been residing in her parent’s house in Gurgaon.

3. The respondent-husband had taken up a plea in the reply admitting that he had been staying in Gurgaon being an employee of Ravi Security Services but on account of appellant having abandoned two minor children in biting cold on 2.2.2015, he shifted his residence from Gurgaon to Village Khairthal, Alwar, Rajasthan.

4. The Family Court, taking into consideration the said fact passed the following order on 26.2.2016 dismissing the application for appointing the appellant as guardian of the minors and for custody of the children:

“Both the parties have appeared today and respondent has produced his two minor children of the parties namely Jeet and Aayush. Undersigned has spoken to the children and both of them are unwilling to speak to the petitioner. Younger child even did not identify the petitioner. Elder child is able to identify the petitioner as his mother and refused to speak to her. He has stated that he does not want to talk about his mother at all and does not like her. It has been brought to the notice of this court that two children are currently living in Khairthal, Alwar, Rajasthan and both are studying in school there for the past more than a year. Since ordinary place of children is village Khairthal, Alwar, Rajasthan, this court has no jurisdiction to entertain this petition. Learned counsel for the petitioner has stated that he does not wish to withdraw this petition. Since this court has no jurisdiction to entertain this petition, same is hereby dismissed for want of jurisdiction. File be consigned to record room.”

5. Perusal of above order dated 26.02.2016 indicates that on the basis of the information supplied to the Court that the children had been shifted to District Alwar, Rajasthan, the ordinary place of residence of the children would be Alwar, Rajasthan, as such, the Court at Gurgaon did not have the jurisdiction. The trial Court failed to appreciate the fact that even if the averment of the respondent-husband is admitted to be correct i.e. children having been shifted to Alwar, Rajasthan on 2.2.2015, it could not be ignored that the petition for custody of the children had been filed on 16.5.2015. Merely taking away of the minor children from their ordinary place of residence three months prior to the filing of the petition by opposite party, will not debar the jurisdiction of the Guardian Judge to adjudicate the claim of a party.

6. As per Section 4 of the Guardian and Wards Act, the definition of “Court” in Section 4(5) reads as follows:

“4. Definitions. - In this Act, unless there is something repugnant in the subject or context

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(5) . "the Court" means–

(a) the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian; or

(b) where a guardian has been appointed or declared in pursuance of any such application–

(i) the Court which, or the Court of the officer who, appointed or declared the guardian or is under this Act deemed to have appointed or declared the guardian, or

(ii) in any matter relating to the person of the ward the Dis