IMPORTANT POINT
Territorial jurisdiction of Court – Minor may be in deemed custody of mother but for the purpose of determining jurisdiction, it is ordinary residence of minor that would be relevant.

JUDGMENT

Sanjeev Kumar J.—This appeal by one Sabahat Sanna filed under Section 19 of the Family Courts Act, 1984 is directed against an order dated 25th July, 2024 passed by the Principal Judge, Family Court, Jammu [“the trial Court”] in File No. G&W Act/4176/2023 titled ‘Sabahat Sanna vs Dr. Shabir Ahmed’ whereby the trial Court has returned the application filed by the appellant under Sections 12 and 25 of the Guardian and Wards Act, 1890 [“Act”] in terms of Order VII Rule 10 read with Rule 10-A CPC for its presentation before the competent Court of jurisdiction.

2. Briefly put the facts leading to filing of this appeal are that the appellant filed an application under Sections 12 and 25 of the Act to seek custody of her minor daughters, aged 5 years and 4 years respectively. The application was resisted by the respondent, who, at the outset, took a preliminary objection that in view of Section 9 of the Act, the trial Court lacked jurisdiction to entertain the petition as both the minors were putting up at village Parat, Tehsil Mendhar, District Poonch.

3. The trial Court, relying upon the provisions of Section 9 of the Act, came to the conclusion that the jurisdiction of the District Court for entertaining an application with respect to guardianship of person of the minor lies with the District Court having jurisdiction in the place where the minor ordinarily resides. The trial Court, thus, held that since both the minors, whose custody is sought by the appellant, were not ordinarily residing within the jurisdiction of the trial Court and, therefore, it had no jurisdiction to entertain the application. Consequently, the trial Court returned the application to the appellant to present it in the competent Court of jurisdiction. It is this order of the trial Court dated 25th July 2024 which is called in question before us in this appeal.

4. Having heard learned counsel for the parties and perused the material on record, the only question that was raised by learned counsel appearing for the appellant for determination in this appeal is as under:

“Whether ordinary residence of a minor for the purpose of jurisdiction in terms of Section 9 of the Act is the same as deemed custody of a minor with the mother, who, as per the Muslim Law, is entitled to custody of a minor daughter till she attains puberty ?”

5. Learned counsel for the appellant placed reliance upon Sections 6 and 17 of the Act to buttress her argument that while determining jurisdiction in terms of Section 9 of the Act, the Court must have regard to the personal law to which the minor is subject. Strong reliance was also placed on a judgment of Delhi High Court in the case of Akhtar Begum vs Jamshed Munir, decided on 05.4.1978 and a judgment of a Single Bench of Punjab and Haryana High Court rendered in CR No. 641 of 2019 titled ‘Akhshay Gupta vs Divya and others.

6. With a view to appreciating the issue raised by learned counsel for the appellant, it is necessary to set out the provisions of Section 9 of the Act hereunder:

“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; and,

(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.

7. From a plain reading of Section 9 of the Act, it is