Jurisdiction in custody cases must consider the child's current residence and welfare, not solely past residence, as per Section 9 of the Guardians and Wards Act.

ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

1 Heard the learned counsels appearing for the respective parties. With consent of the learned advocates appearing for the respective parties, the First Appeal No. 1268 of 2023 is taken up for final hearing today.

2 Admit. Both the learned counsels for the respective parties waive service of notice of admission.

3 First Appeal No. 1268 of 2023 has been filed by the appellant, Amit Dhansing Jagtap & Anr, wherein, challenge is to the order dated 11.10.2022 passed by the Principal Judge, Family Court, Navsari, in Exh.14 preferred by the appellants in Civil Miscellaneous Application No. 12 of 2022. The Exh.14 application of the appellants questioning the jurisdiction of the Navsari Court was rejected. Civil Miscellaneous Application No. 12 of 2022 was filed by the appellant of First Appeal No. 4464 of 2023 praying for custody of minor child Varad before the Navsari Court. In the custody application, since the Family Court by its order dated 12.06.2023 did not give custody of the child to the father, hence First Appeal No. 4464 of 2023, is filed by the father challenging the order refusing the interim custody.

4 We have heard First Appeal No. 1268 of 2023 as it involves consideration of an order below Exh.14, by which, the Court at Navsari held that it had jurisdiction to entertain the custody application.

5 In the main application for custody filed by the father, Chandrashekhar Uttamrao Shinde, under Sec.9 of the Guardians & Wards Act, 1890, it was the case of the father that he was engaged as an Assistant Professor at Navsari Agricultural University since 02.03.2013. He entered into matrimony with the deceased Mayuriben on 26.04.2016. The marriage took place at Baramati, Maharashtra. The father in his application for custody of the minor son Varad stated that out of the wedlock, Varad was born on 12.08.2017. During the currency of the marriage, the wife and the son kept on traveling between Navsari and their hometown at Baramati. Unfortunately, on 15.09.2021, Mayuriben, the wife committed suicide. The application further states that on the next day i.e. on 16.09.2021, the family of Mayuriben, i.e. the appellants of First Appeal No. 1283 of 2023, the family of Mayuriben which included the appellants, came to Navsari and took away the child together with the body of the mother to their village Pandare, i.e. the maternal home of the deceased mother. The last rites took place on 17.09.2021. The application for custody further states that the custody of the child Varad was forcibly taken away by the in-laws and it is in that context that the child was taken to Baramati, whereas, prior thereto, i.e. the death of his wife and the mother of the child, the child continued to be residing with the father at Navsari. It is in the background of these facts that the application for custody of the child Varad was made before the Navsari court.

5.1 It is thereafter, that the appellants of the First Appeal No. 1268 of 2023, the maternal uncle and maternal grand parents of the child made an application Exh.14 disputing the jurisdiction of the Navsari Court. In the application so filed, it was the case of the appellants of this appeal that the child Varad was actually residing at Pandhare, Taluka: Baramati, that is in Pune. Being a resident of the State of Maharashtra, the Navsari Court would have no jurisdiction. The Court rejected the application.

5.2 Before the Family Court, as is evident from the impugned order, two Aadhar Cards were produced. One by the father Chandrashekhar Uttamrao Shinde showing an address of Koparde, Taluka: Khandala, District: Satara and the other Aadhar Card produced by the appellants (maternal grand parents) showing the address in the Aadhar Card of the child at Village: Pandare, Taluka: Baramati, District: Pune. Perusal of the impugned order by which the application for jurisdiction was rejected by the Trial Court would indicate that after taking into consideration th