The central legal point established in the judgment is that the jurisdiction of the court under Section 9 of the Guardians And Wards Act, 1890 is determined by the ordinary residence of the minor, and this must be established based on factual circumstances.

Rajiv Joshi, J.

This appeal under Section 19 of the Family Court Act has been filed against the order dated 5.12.2015 passed by the Principal Judge, Family Court Agra, whereby the preliminary objection as raised vide application/objection (Paper No. 17 C) has been rejected.

2. The necessary facts for consideration of this appeal, are as under:

The appellant-wife, Smt. Jyotsna Singh, was married with the respondent Saurabh Singh on 3.5.2009 as per the hindu rites and rituals. A male child namely, Surya, was born on 2.12.2011 out of their wedlock at Ghaziabad. Subsequently, the wife along with her minor child, started living at Bhopal w.e.f. 28.12.2011 at her parents' house.

3. An application was filed by the respondent-husband on 29.5.2013 under section 25 of the Guardians And Wards Act, 1890 before the Family Court, Agra registered as Case No. 858 of 2013 with the relief that the custody of the person of minor child, namely, Surya be given to the husband by declaring him as natural guardian.

4. It is stated in the application that the relation between the husband and wife became so strained and after three weeks from the date of the birth of the child, the wife shifted to his parents' house at Bhopal and started residing there. The husband several times approached the wife but she refused to live with him.

5. The appellant-wife raised a preliminary objection vide application (Paper No. 17 C) about the maintainability of application for appointment of Guardian on the ground that the Family Court at Agra has no jurisdiction.

6. In response to the application (Paper No. 17 C), the husband in his objection stated that he is permanent resident of Agra and the same is also the permanent residence of his son and therefore, the application for appointment of guardians of the minor filed before Family Court at Agra is within jurisdiction.

7. The Principal Judge, Family Court, Agra vide order dated 5.12.2015 rejected the preliminary objection of the appellant-wife by recording that since the husband is permanent resident of Agra, therefore, it is presumed that the permanent residence of the minor child is also at Agra and the Family Court of Agra is having jurisdiction to entertain the application filed under Section 25 of the Guardians & Wards Act, 1890. The said order dated 5.12.2015 passed by the Principal Judge, Family Court, Agra is under challenged by the appellant-wife in this appeal.

8. We have heard Sri Y.K. Srivastava, counsel for the appellant and Sri Ishtiyak Ali, Advocate, holding brief of Sri Ali Hasan, counsel for the respondent.

9. Counsel for the appellant submitted that while deciding preliminary objection with regards to the jurisdiction as raised by the appellant-wife, the Family Court failed to consider the provisions of Section 9 of the Guardians & Wards Act, which clearly provides that the suit for custody of the person of the minor child can be instituted only at the place, where the child ordinarily resides and since, the child is residing at Bhopal, the Family Court at Agra will have no jurisdiction to entertain the said case.

10. On the other hand, counsel for the respondent refuted the submission as raised by the counsel for the appellant and supported the impugned judgment. It is submitted by the respondent that the father of the child is a permanent resident of Agra and therefore, his minor child should be treated to be a permanent resident of Agra and the application filed by him for the custody of the person of the minor child at Agra is very well maintainable as the Family Court, Agra has got the jurisdiction.

11. He further submits that the residence of appellant Smt. Jyotsna Singh at her parental house at Bhopal is only temporary and cannot be said to be a permanent as she is in service in Bhopal unit of BHEL, which is transferable in nature. She can be transferred anytime outside Bhopal.

12. It is further submitted by the counsel for the respondent that Smt. Jyotsna Singh filed two transfer ap