The ordinary residence of a minor for the purpose of determining jurisdiction under Section 9(1) of the Guardians and Wards Act, 1890, is the place where the minor has a regular, normal, and settled home, not a temporary or forced one.

T.S. Doabia, J.

1. What would be the "ordinary residence" of a three year old child-a male child in this case? Can a minor of this tender age exhibit his "intention" to reside at a particular place or express a desire as to where he would like to reside. One way to look at this question would be to link his residence with the natural guardian. The minor in this case is not residing with father but with parents of the father. Mother has custody of a female child, she is seeking custody of her minor son. A petition has been preferred under section 7 of the Guardians and Wards Act, 1890 (hereinafter referred to as the Act). An objection has been taken to the maintainability of the petition. It is pleaded that courts at Gwalior have no jurisdiction and the petition should be filed at Delhi where the minor is said to be staying with his grand parents. The trial Court found no merit in the objection so taken by the father and grand parents of the minor. Dissatisfied with the same, they have preferred this petition.

2. Some other facts which are relevant for the purposes of this petition be also noticed.

3. The respondent mother is having custody of a female child of two years. She has also taken proceeding against her husband under sections 498A and 506B of the Indian Penal Code. The father is residing at Dewas in the State of Madhya Pradesh. The grand parents as noticed above, are residing at New Delhi. To repeat minor is said to be at present with petitioner 2 and 3, that is the grand parents.

4. The question as to where a petition for seeking custody of a minor would lie is to be determined by taking note of section 9 of the Act. For facility of reference this section be noticed. It 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.

(2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a district court having jurisdiction in a place where he has property.

(3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if, in its opinion, the application would be disposed of more justly or conveniently by any other district court having jurisdiction".

A perusal of section 9(1) of the Act makes it apparent that it is the ordinary place of residence of minor which determines the jurisdiction of the Court for entertaining an application for guardianship of the minor. Such jurisdiction cannot be taken away by temporary residence elsewhere on the date of presentation of the petition. The fact that the minor is found actually residing at a place when the application for the guardianship of minor is made does not determine the jurisdiction of the Court. There can again be no dispute that the term "residence" is an elastic word of which an exhaustive definition cannot be given. It is to be construed differently as per the purpose for which an enquiry is made. Section 9(1) uses the words "Ordinarily resides" and this means more than a temporary residence. These words indicate a regular, normal and settled home and not a place where the minor is on account of compulsion. The concept of 'residence' has been explained and taken note of in Corpus Juris Secundum Vol. 77, The relevant paragraphs in this regard be noticed :

"It has been said that the word "residence" indicates permanency of occupation or abode, as distinct from lodging or boarding, or temporary occupation, and the position has been taken that a permanent abode is necessary to constitute a residence, and that a residence must be fixed and permanent abode