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 circumstances.

Headnote:(A) Guardian and Wards Act, 1890 - Sections 9, 17, 25 - Hindu Minority and Guardianship Act, 1956 - Section 6 - Jurisdiction in child custody disputes - Court lacks jurisdiction to hear custody petition when child resides elsewhere, ruling that ordinary residence dictates jurisdiction (Paras 6, 12, 16).

(B) Custody of minors - The welfare principle emphasizes that custody decisions should not solely be dictated by statutory presumptions but should also consider the child's actual circumstances, involving intent and physical presence (Paras 12, 19).

Facts of the case:
Parents, in contentious marital discord, disputed custody of minor child residing with maternal grandparents since 12.06.2021; petition for custody was filed by the father in Chandigarh, while the mother argued for Jalandhar's jurisdiction where the child resides (Paras 2, 3.1).

Findings of Court:
Court identified that the proper jurisdiction lies where the child ordinarily resides, emphasizing statutory interpretation of the relevant laws governing custody (Paras 9.1, 9.2).

Issues: The court examined jurisdiction based on the child's ordinary residence; it questioned whether the custody petition could be heard in Chandigarh given the child’s residence in Jalandhar (Paras 3.2, 4).

Ratio Decidendi: Court determined jurisdiction rests with where the child is ordinarily residing, and parental disputes cannot override the child's established residency. The court found that non-compliance with jurisdictional requirements invalidates the custody petition (Paras 10-12, 16).

Result: Petition allowed, previous order set aside.

Table of Content
1. jurisdiction concerns of the court regarding child custody. (Para 1)
2. factual background of custody dispute. (Para 2)
3. arguments regarding jurisdiction of court. (Para 4 , 5)
4. court's reasoning on jurisdiction principles. (Para 6 , 10 , 11 , 12 , 13 , 14 , 15 , 16)
5. court's observations on statutory provisions related to jurisdiction and custody. (Para 7 , 8 , 9)
6. conclusion on court's jurisdiction ruling. (Para 17)

JUDGMENT :

Deepak Gupta, J.

The dispute pertains to territorial jurisdiction of the court to entertain a petition for child custody, when the parents of said child are fighting legal battle due to their acrimonious relationship.

2. XXXX (petitioner No.1 herein) and XXXX (respondent herein) were married on 30.09.2017 as per Hindu rites and ceremonies. They were blessed with a daughter, named XXXX on 18.05.2019. Said daughter is presently residing at Jalandhar (Punjab) with petitioner Nos.2 and 3 herein, who are the parents of XXXX ever since 12.06.2021.

3.1. On 01.11.2022, the father of the child, i.e. XXXX respondent filed a petition [Annexure P-2] under Section 7 read with Section 17 & 25 of the Guardian and Wards Act, 1890 (in short ‘Act of 1890) and Section 6 & 13 of the HINDU MINORITY AND GUARDIANSHIP ACT , 1956 (in short ‘Act of 1956) seeking the grant of custody/visitation rights of the minor child- XXXX against his wife and parents-in-law i.e., petitioners herein. Said petition was filed before Guardian Judge, Chandigarh.

3.2. The mother of the child — XXXX i.e. petitioner No.1 herein moved an application under Order VII Rule 11 CPC for rejection of the petition on the ground that the child — XXXX born on 18.05.2019 is ordinarily residing at Jalandhar (Punjab) and therefore, the Court did not have territorial jurisdiction to entertain the petition.

3.3. However, the Court of learned Civil Judge (Sr. Divn.)/Guardian Judge, Chandigarh rejected the said application by way of the impugned order dated 29.05.2024 (Annexure P-1). The reasoning given by Ld. Court is that both father and mother of the child are residing in Chandigarh; that the custody of a child below 05 years of age (especially female child) would naturally lie with the mother and therefore, the deemed custody would be with the mother, even if the actual custody was with the parents of the mother. With this reasoning, the Court held that the Chandigarh Court has the jurisdiction in the matter and as such, dismissed the application.

4. Assailing the aforesaid order by way of present petition, it is contended by Ld. Counsel for the petitioners i.e. mother of the child alongwith her parents that as per the own case of the father, the child was residing at Jalandhar ever since 12.06.2021. Learned counsel contends that the said child is pursuing her studies for the last more than 03 years at Jalandhar and therefore, in view of Section 9 of the Guardian and Wards Act, 1890, the ordinary place of residence of the child is Jalandhar and therefore, the Court at Chandigarh do not have the jurisdiction to entertain the petition. Learned counsel has referred to FAO No.2294 of 2024, titled as “ Rajesh v. Komal ” , decided by the Division Bench of this Court on 27.08.2024; “ J K v. NS ”, 2019: DHC: 3125-DB, a decision of the Division Bench of Delhi High Court, besides “ Ruchi Majoo v. Sanjeev Majoo ” , 2011(2) Marriage L.J. (SC) 481] : (2011) 6 SC 479.

5. Refuting the aforesaid contentions, it is urged by learned counsel for the father of the child, i.e. respondent herein that both the parties, i.e. father as well as mother of the child are residing in Chandigarh; that as per the own contention of the mother of the child, i.e. petitioner No.1 herein, the child was removed from the custody of her ordinary residence of Chandigarh on 12.06.2021 and therefore, such removal from the ordinary residence of the child will not oust the jurisdiction of the Chandigarh Court. It is also the contention of learned counsel that parties are under litigation in n