Ordinary residence of minor children shifts to new place when children have resided and attended school there since filing; transfer to that jurisdiction was held justifiable.

ORDER

The transfer petition has been filed by the wife of the respondent seeking transfer of G.O.P.No.1717 of 2025 pending before the Family Court, Ernakulam to the Family Court, Tirur. G.O.P. No.1717 of 2025 has been filed by the respondent seeking permanent custody of minor children. The petitioner and the respondent were married on 20.02.2020. On 27.12.2020, the petitioner gave birth to two children. The petitioner and children were residing in Kalamassery. According to the petitioner, due to harassment by the respondent including physical assault, the petitioner started living separately from 26.06.2025 onwards. It is stated that on 28.06.2025, the petitioner went over to the residence of the respondent with Police protection and took the children with her and she is presently residing at Perumbadappu in Ponnani along with her parents. The petitioner has preferred M.C.No.72 of 2025 before the Judicial First Class Magistrate Court, Ponnani and O.P.No.1310 of 2025 before the Family Court, Tirur for return of gold ornaments. It is in the above circumstances that this transfer petition has been filed.

2. The respondent entered appearance and filed a counter affidavit contending that the transfer petition has been filed without any bona fides. It is stated that the minor children were ordinarily residing within the territorial jurisdiction of the Family Court, Ernakulam, prior to the unilateral removal by the petitioner and a unilateral removal by one parent cannot alter the ordinary residence of the children or defeat the jurisdiction of the Family Court under Section 9 of the Guardians and Wards Act, 1890. Documents have been produced to show that the children were admitted in Heavens Pre-school in Aluva, before they were taken away by the petitioner.

3. Reliance is placed on the judgment of the Hon'ble Supreme Court in Ruchi Majoo v. Sanjeev Majoo [(2011) 6 SCC 479] to submit that 'ordinary residence' refers to the place where the child normally and habitually resides, and that jurisdiction cannot be created or defeated by unilateral acts of the parents.

4. Even though allegations and counter allegations have been made regarding the incidents that happened which led to the petitioner living separately from the respondent and photographs have been produced by either side, the same are not being gone into in these proceedings since they would have to be considered after a proper trial by the concerned court. Admittedly, the children were residing in Kalamassery till 28.06.2025 and thereafter they have been residing in Perumpadappu in Ponnani. The children have also been admitted on 19.07.2025 in KMM English School and Junior College, Perumpadappu where they are presently studying. The only question is whether the children should be treated to be ordinarily residing in Kalamassery or in Tirur.

5. Section 9(1) of the Guardians and Wards Act, 1890 says that 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. The application in this case was filed by the respondent in September 2025 and the application itself shows that the minor children were residing with the petitioner at the time of its filing. 'Ordinarily resides' cannot be extended to mean where the child resided prior to the separate residence of the parents. Whether or not the petitioner was justified in taking the children along with her and residing separately, are matters which have to be decided after trial. The fact remain