IMPORTANT POINT
The jurisdiction for guardianship applications under the Guardians and Wards Act, 1890 is determined by the minor's ordinary residence, which requires factual inquiry and cannot be solely based on temporary educational locations.

JUDGMENT :

Syed Qamar Hasan Rizvi, J.

1. This Appeal under Section 19 of the Family Courts Act, 1984 arises out of the judgment and order dated 18.03.2024 passed by the Additional Principal Judge, Family Court No. 4, Ghaziabad in Misc. Case No. 15/2021 under section 25 of the Guardians and Wards Act, 1890 (Smt. Chetna Goswami versus Dheeraj).

2. The grievance of the appellant is that the learned Court below, vide impugned order dated 18.03.2024, has rejected his application filed under Order VII Rule 11 of the Code of Civil Procedure, 1908.

3. The relevant facts of the case, in brief, are that the respondent, Smt. Chetna Goswami filed a petition having Case No. 15 of 2021 under section 25 of the Guardians and Wards Act, 1890, before the learned Family Court at Ghaziabad seeking custody of her child, namely, Master Kunj having date of birth as 18.08.2013.

4. The case of the appellant as narrated in the writ petition is that after coming to know about the case through Court Notice published on 22.10.2021 in the newspaper ‘Rastriya Sahara’, he preferred an application under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure, 1908, in Case No. 15 of 2021 pending before the Court of Additional Principal Judge, Family Court No. 4, Ghaziabad, inter alia, praying for the dismissal of the aforesaid case filed by the respondent under Section 25 of the Guardians and Wards Act, 1890. The ground taken by the Appellant in the said application filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 was that Family Court at Ghaziabad lacks territorial jurisdiction to entertain the said case, as the minor is currently studying at K.M. Public School (Senior Secondary), Bhiwani, Haryana.

5. The learned Court below on the basis of the averments made in the application under Order VII Rule 11 of the Code of Civil Procedure, 1908, passed a detailed order dated 18.03.2024 whereby the application filed by the appellant was rejected. For a ready reference, extract of the said order dated 18.03.2024 passed by the Additional Principal Judge, Family Court, Court No. 4, Ghaziabad is being reproduced below:

7- Section 9(1) Guardians and Wards Act, 1890 deals with Court having jurisdiction to entertain application. It confers that if the application 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. Being aggrieved by the aforesaid order dated 18.03.2024, the appellant preferred the instant appeal. While pressing the appeal, the learned Counsel for the appellant most emphatically argued that the learned Court below, without taking into consideration the fact that when on 25.10.2023, the application under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure, 1908 was filed raising the question of territorial jurisdiction on account of the fact that the child lives in Bhiwani, Haryana and is receiving his education there. As such, petition under section 25 of the Guardians and Wards Act, 1890 could not be filed or entertained in the Court having its jurisdiction at Ghaziabad.

7. It has further been pleaded that on 18.03.2024, the learned Family Court has dismissed the application filed under Order 7 Rule 11 of the Code of Civil Procedure, 1908 on the ground that the jurisdiction for filing the Case shall be ascertained from the permanent residence, which does not mean permanent address of the ward. The appellant has further submitted that the Family Court has misinterpreted the provisions of Section 9 (1) of the Guardians and Wards Act, 1890 and has misconstrued the expression “where the minor ordinarily resides”. It has further been submitted that the question vested in the expression “where the minor ordinarily resides” is a mixed question of fact and law and the same cannot be answered without holding enquiry into the factual aspect of the controversy.

8. Heard Sri Satyendra Narain Singh, learned co