Jurisdiction for custody of minors is determined by their place of ordinary residence, emphasizing that where the child lives, not the parents, governs jurisdiction under the Guardians and Wards Act.

ORDER

The petitioners are, defendants in G & W.C.No.49 of 2021, they are before this Court calling in question an order dated 03-02-2023 passed by the III Additional Principal Family Judge, Mysuru rejecting the application filed by the petitioners under Order VII Rule 10 r/w Section 151 of the Code of Civil Procedure seeking return of the plaint to be presented before an appropriate Court.

2. Heard Sri. Mohammed Tahir, learned counsel appearing for the petitioners and Sri H.A. Purushothama Prasanna, learned counsel appearing for the respondent.

3. The facts, in brief, are as follows:-

The petitioners are the parents-in-law of the respondent. Daughter of the petitioners and the respondent got married and from the wedlock a child is born. The daughter of the petitioners who is the wife of the respondent dies on 16-05-2021 and since then it is the case of the petitioners that minor child is in their custody. The respondent, father of the minor child, registers G & W.C. petition before the Family Court at Mysuru in G & W.C. No.49 of 2021 on 21-12-2021 seeking custody of the minor child claiming that the child should be with the father. The petitioners - the defendants file an application seeking return of the plaint and transfer of the case to a Court of appropriate jurisdiction. The concerned Court, by its order dated 03-02-2023, rejected the application filed by the petitioners. It is the rejection that has driven the petitioners/defendants to this Court in the subject petition.

4. The learned counsel Sri. Mohammed Tahir appearing for petitioners submits that the child is a resident at Yelandur, Chamarajnagar District staying with grandparents/petitioners herein. The respondent is a resident of Mysuru. The learned counsel would submit that where the child resides would be the jurisdiction of the Court and not where the relatives or the father or the mother would reside. It is, therefore, his contention that the concerned Court has erred in rejecting the application filed by the petitioners.

5. Per-contra, the learned counsel appearing for the respondent would refute the submissions to contend that the biological father resides in Mysuru. Merely because the child is in the custody of the petitioners, after the death of their daughter, would not clothe jurisdiction to the Court at Mysuru. He would further contend that the application is filed by the defendants, which would not be maintainable in terms of Order VII Rule 10 of the CPC. Therefore, on the said ground, he seeks dismissal of the petition contending that the order does not warrant any interference.

6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

7. The issue lies in a narrow compass. The afore-narrated facts are a matter of record. The respondent registers G & W.C case in G. & W.C. No.49 of 2021 seeking custody of the child who is presently with the petitioners. After receipt of the notice from the hands of the concerned Court, the petitioners/defendants preferred an application in I.A.No.VII under Order VII Rule 10 r/w 151 of the CPC for return of the petition for want of territorial jurisdiction. The contentions are as narrated hereinabove. The concerned Court, by its order dated 03-02-2023 rejects the application by the following order:

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8. As far as contention of respondents that as per Sec.9 of Guardian and Ward's Act this petition has to be fled before the court within jurisdiction of which the minor is residing is concerned, the case of respondent is not sustainable and sec.9 of Guardian and Ward's Act is not applicable to case on hand. Sec.9 of Guardian and Ward's