Jurisdiction of the Family Court to entertain applications under the Guardians and Wards Act, 1890 is determined based on the ordinary residence of the minor and the court having territorial jurisdiction over the place where the minor ordinarily resides.

Prafullu C. Pant, J.

1. These two appeals, preferred under Section 19 of the Family Courts Act, 1984, are directed against order dated 22.11.2004 passed by learned Principal Judge, Family Court, Haridwar in Misc. Case No. 19 of 2004, Mrs. Sarita v. Vinod Goijal, whereby the Judge has rejected the objection raised by the appellant-husband challenging jurisdiction of the Family Court to entertain the application of the plaintiff-wife under the Guardians and Wards Act, 1890, and directed the appellant-husband to produce the child before the Court.

2. Brief facts of the case are that respondent-wife has filed an application under Sections 10 and 25 of the Guardians and Wards Act, 1890, seeking custody of minor child Kannu from the custody of the appellant-husband. The said application was registered as Case No. 19 of 2004, Smt. Sarita v. Vinod Goyal. As per the said application Sarita got married to Vinod Goyal on 19.4.2000 and out of their wedlock Master Kannu got born on 24.2.2001. It is alleged in the application that respondent was turned out of her matrimonial house in Saharanpur and Master Kannu is forcibly kept in his custody by the appellant at Saharanpur. It is further alleged that at present the respondent is residing with her parents at Haridwar. The appellant in his objection has stated that mother of Master Kannu has herself left the matrimonial house at her own will and his son is living and studying in Saharanpur. As such, the application filed by the respondent is beyond jurisdiction of the Family Court at Haridwar and is liable to be dismissed. Flowever, learned Principal Judge, Family Court rejected objection as to its jurisdiction and observed vide its order dated 22.11.2004 that as per the Hindu Minority and Guardianship Act, 1956, guardianship of a child below five years of age ordinarily rests with the mother of the minor and, as such, only by keeping the minor child below five years in his custody forcibly it cannot be said that minor is ordinarily residing with the appellant-father. In an another application dated 19.3.2004 filed by the respondent, learned Principal Judge, Family Court, Haridwar vide order dated 22.11.2004 directed the appellant to produce the minor in the Court. Aggrieved by said orders, these appeals have been filed alleging the orders to be illegal and against the provisions of law.

3. A counter affidavit has been filed on behalf of the respondent-wife in which it has been admitted that respondent got married to appellant on 19.4.2000 and it is also admitted that a male child was born out of their wedlock on 24.2.2001. It is alleged in the counter affidavit that the relations with the appellant and respondent did not remain cordial due to alleged bad behaviour on the part of family members of the appellant, and respondent had to leave her matrimonial house for no fault on her part. It is further stated in the counter affidavit that an F.I.R. was also lodged against the appellant at P.S. Kotwali, Saharanpur in case Crime No. 382 of 2003. It is further alleged that the answering respondent is deprived of the custody of her minor son.

4. We heard learned Counsel for the parties and perused the affidavit and counter-affidavit along with the annexures annexed thereto.

5. Shrot question for consideration before this Court is, whether the impugned order suffers from any illegality or not?

6. The Clause (1) of Section 9 of the Guardians and Wards Act, 1890, reads as under :

"9. Court having jurisdiction to entertain application.--

(1) If the application is 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."

7. Learned Counsel for the appellant drew attention of this Court to the principle of law contained in Harshadbhai Zinabhai Desai v. Bhavnaben Harshadbhai Desai, , wherein it

has been held that the question of ordinary residence of a minor is a matter of fact to be ascertained f