Under Section 9(1) of the Guardians and Wards Act 1890, territorial jurisdiction is determined by where the minor ordinarily resides. Prior interim orders do not cure a fundamental lack of territorial jurisdiction if the minor does not reside within the court's jurisdiction.

Order(Oral)

Per: Arun Monga, J

1. The appellant–father seeks quashing of the judgment/decree dated 22.01.2026 passed by the learned Family Court, whereby his petition under Sections 10 & 25 of the Guardians and Wards Act for custody of the minor child was returned without being decided on merits for lack of territorial jurisdiction.

2. Brief facts of the case are that the appellant instituted a petition under Sections 10 and 25 of the Guardians and Wards Act, 1890 before the Learned Family Court No. 1, Bikaner on 30.04.2024, seeking guardianship and custody of the minor children. The marriage between the appellant and the respondent was solemnized on 30.10.2009 at Malsisar, Tehsil Sujangarh, District Churu, after which the parties resided together in Bikaner. Out of the wedlock, two children were born i.e. a daughter, Bhavana (born on 16.02.2012), and a son, Pankaj, born approximately one and a half years thereafter.

2.1. After a few years of marriage, matrimonial discord arose, and the respondent left the matrimonial home in Bikaner to reside at her parental house in Malsisar, Tehsil Sujangarh, District Churu. Prior thereto, the minor children had been residing and pursuing their education in Bikaner under the care and supervision of the appellant. However, the respondent took the children from Bikaner to Sujangarh without the knowledge or consent of the appellant.

2.2. The appellant’s repeated requests to meet the children were allegedly denied by the respondent, thereby compelling him to initiate guardianship proceedings for their welfare.

2.3. The Learned Family Court at Bikaner initially assumed jurisdiction on 03.05.2024 and issued notice to the respondent. It further allowed the appellant’s application under Section 12 of the Act vide order dated 31.05.2025, thereby granting interim protection concerning the minors. However, despite having exercised jurisdiction, the Learned Family Court, by the impugned order dated 22.01.2026, returned the petition on the ground of lack of territorial jurisdiction.

3. Hence, the instant appeal.

4. Learned counsel for the appellant submits that the impugned order dated 22.01.2026 is ex facie illegal and unsustainable in law. The Learned Family Court, having already entertained the guardianship petition and adjudicated the application under Section 12 of the Guardians and Wards Act, 1890 on 31.05.2025, had conclusively assumed territorial as well as subject-matter jurisdiction. After having applied its judicial mind and passed substantive orders affecting the rights of the parties, the Court could not subsequently return the petition on the ground of lack of territorial jurisdiction.

4.1. It is further contended that the Learned Family Court erred in ignoring material evidence on record demonstrating that the minors were ordinarily residing at Bikaner on the date of institution of the petition. The school records and certificates clearly establish their continuous education and settled residence at Bikaner, reflecting stability and integration into the local environment. It is a settled principle of law that “ordinary residence” is determined by continuity, duration, and the intention of the lawful guardian, and not by temporary presence or unilateral removal by one parent. Any forcible or unauthorized relocation cannot divest a competent court of jurisdictio