Advocates:
Advocate Appeared:
For the Appellant :Mr. Anil Kumar Garg, Advocate
For the Respondent:Mr. Vipin Mahajan, Advocate

JUDGMENT :

Sureshwar Thakur, J.

The instant appeal is directed against the impugned order rendered on 30.01.2025 by the learned Principal Judge, Family Court, Gurdaspur, wherebys became dismissed an application filed under Order 7 Rule 11 CPC, thus seeking the rejection of the petition in view of Section 9 of the Guardian and Wards Act, 1890, (hereinafter in short to be referred as 'the Act of 1890'), wherebys became espoused, thus the restoration of the custody of the minor child to the petitioner from the respondent.

2. Before proceeding to determine the justifiability of the passing of the impugned order, it is relevant to extract, the provisions as embodied in Section 9 of the Act of 1890. The said provision becomes extracted hereinafter:-

(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.

(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. '

3. Readings of the provisions embodied in sub-Section 1 of Section 9 of the Act of 1890, unfolds that the test(s) qua assumption of valid jurisdiction over an application filed by the aggrieved parent, thus, seeking restoration of custody, viz-a-viz her/him from the opposite party, who has purported illegal custody over the minor child, thus become(s) rested on an able interpretation being made, viz-a-viz the legal coinage as carried therein i.e. 'where the minor ordinarily resides'.

4. Though the learned Family Court while making an interpretation of the supra phrase, appertaining to the assumption of the jurisdictional, over a petition filed under Section 25 of the Act of 1890, thus made a conclusion in paragraph 4 thereof, para whereof becomes extracted hereinafter:-

'4. Having heard both the sides, it is not a disputed fact that the petitioner is the wife of the respondent and has sought the custody of the minor child from him. As per the date of birth of the minor child as mentioned in the petition, the child was born on 03.08.2019. The present petition has been filed on 19.04.2024. Meaning thereby, the child whose custody has been sought, was aged less than 5 years at the time of filing the present petition and she is in the custody of the respondent/father. It is not a disputed fact that the child is presently with the respondent/father. As per law, the petition for custody of the child under Guardians and Wards Act can be maintained at the place where the child ordinarily resides. However, Hon'ble Punjab & Haryana High Court has held in case titled as 'Akshay Gupta Vs. Divya & Ors. 2021 (1) RCR (Civil) 722' that in case of custody of the child aged less than 5 years, the mother is the deemed natural guardian of the minor child at the time of instituting the proceedings. Therefore, the natural custody would also be presumed to be with the mother, regardless of the place where the child is actually residing physically at that time. '

5. The said conclusion became rested upon the principle, that since this Court in a judgment rendered in case 'Akshay Gupta Vs. Divya & Ors. 2021 (1) RCR (Civil) 722', declared, that in case the relevant contest is with re