ORDER

1. This Miscellaneous Petition has been filed by the petitioner under Article 227 of the Constitution of India against the order dated 8.2.2021, passed in MJC-G.W./03/2020 by Additional District Judge, Nagda, District - Ujjain (MP), whereby the petitioner’s application filed under section 9 of the Guardian and Wards Act, 1890 (for short ‘the Act of 1890’) raising the ground of territorial jurisdiction to entertain the application filed by the respondent No.1/husband for guardianship and custody of their daughter has been rejected and it is held that Court at Nagda shall have the jurisdiction and not the Court at Nagpur where according to the petitioner, the daughter is residing.

2. In brief, the facts of the case are that the petitioner and the respondent No.1 are husband and wife and they had a dispute which led to the petitioner leaving her matrimonial house at Nagda along with her daughter in the month of April 2020, to Nagpur where her parents are residing. Since the petitioner did not return, therefore on 28.8.2020 the respondent No.1/husband filed an application under section 7, 10 and 12 of the Act of 1890, seeking his appointment as guardian of the minor girl and custody of the child who is aged about nine years at that relevant point of time. In the aforesaid proceedings, the application under section 9 of the Act of 1890 was filed as aforesaid with a prayer that the proceedings be cancelled and the respondent No.1/husband be directed to file the application for custody of the minor child in the Court at Nagpur. The learned Judge of the trial Court, after considering the judgment rendered by the Apex Court in the case of Ruchi Majoo v. Sanjeev Majoo reported in (2011) 6 Supreme Court Cases 479 has rejected the application holding that the daughter is residing ordinarily at Nagda only and thus, it is held that Court at Nagpur would not have the jurisdiction to entertain the same.

3. Counsel for the petitioner submits that learned trial Court has not properly appreciated the reasons assigned by the apex Court in the case of Ruchi Majoo (supra), as also the mandate of section 9 of the Act of 1890 which clearly provides that only the Court where the minor child ordinarily resides would have jurisdiction, and admittedly, after leaving Nagda, the daughter of the petitioner has taken admission in the school at Nagpur, the receipt of which has also been placed on record and thus, it cannot be said that it was a flying visit of the child to Nagpur for a temporary period. Hence it is submitted that impugned order dated 8.2.2021 be set-aside and the application filed under section 9 of the Act of 1890 be allowed.

4. Per contra, counsel for the respondent-husband has opposed the prayer and it is submitted that no illegality has been committed by the learned trial Court in rejecting the application, as prior to her departure from Nagda, the daughter of the petitioner was studying at Aditya Birla Public School, Nagda which is an admitted fact and thus merely because the daughter of petitioner has taken admission in a school at Nagpur, it cannot be said that she is ordinarily residing at Nagpur only. Thus, it is submitted by counsel for the respondent that no illegality has been committed by the learned trial Court Judge.

5. In rebuttal, counsel for the petitioner has also submitted that even according to the respondent No.1/husband, who has filed the application for guardianship, in para-10 of the application, he has stated that since he is residing at Nagda, hence the application can be entertained by the Court at Nagda only.

6. Heard, learned counsel for the parties and perused the record, as also the decision relied upon by the counsel for the petitioner.

7. So far as the decision rendered in the case of Ruchi Majoo (supra), is concerned, although in this case a Habeas Corpus petition was filed by the Husband whereas, the wife had an interim order passed in her favour in respect of the custody of child under the Act of 18