The petitioner is before this Court seeking for the following

reliefs:

A.

Issue writ of certiorari quashing/modifying the

order, the petitioner challenging the order

dated 04.06.2019 in G and W 8/19 vide

Annexure-"J" passed by the Principal Judge,

Family Court, Dharwad, in the interest of

justice and equity.

B.

Pass any other order or direction as this

Hon’ble deems just and proper under facts

and circumstances of case including award of

cost in interest of justice and equity.

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G & W No.8/2019 had been filed by respondent No.1 herein

seeking custody of the minor son of respondent No.1 from

the petitioner.

It is contended that, earlier M.C.No.3630/2018 had been

filed, whereunder both parties had agreed to separate by

way of mutual consent and their marriage came to be

dissolved. However, contending that the said decree by

mutual consent was obtained by fraud, separate proceedings

have been filed challenging the said decree and as such, the

respondent No.1 mother filed the proceedings in G & W

proceedings seeking for custody of the minor child.

4.

In the said proceedings, an application came to be filed by

the petitioner objecting to the jurisdiction of the Court

contending that the petitioner and the minor son are residing

in Bengaluru and therefore in terms of Section 9 of the

Guardians and Wards Act,1890 (hereinafter referred to as

‘the Act’, for brevity), it is only the Court within whose

jurisdiction the minor ordinarily resides, which would have

the jurisdiction to decide the matter and therefore, it is

contended that the minor being in the custody of the

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petitioner and the petitioner residing in Bengaluru, it is the

Court at Bengaluru, which would have jurisdiction and not

the Court at Dharwad, where the petition has been filed by

respondent No.1.

5.

The Family Court after considering the matter dismissed the

said contention of the petitioner by holding that, by words

‘ordinarily residing’, what is meant is expected to reside. The

minor being less than two years of age, the trial Court held

that the minor was expected to reside with the natural

guardian mother and therefore, the Court at Dharwad would

have the jurisdiction, more so, when the allegation was that

the minor child was forcibly taken by the respondent therein,

without her willingness. It is this order, which is under

challenge before this Court.

6.

Smt. Sumangala Chakalabbi, learned counsel appearing for

the petitioner would submit that, the petitioner and the minor

child have ordinarily resided in Bengaluru for the last nearly

four years after the divorce was granted and therefore, it is

Bengaluru, which would have to be taken into consideration

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for determining the jurisdiction of the Court under Section 9

of the Act.

7.

Sri. Vishwanath S. Bichagatti, learned counsel appearing for

respondent No.1 would however, relied upon the decision of

this Court in CRP No.891/1992 in the case of K. C.

Sashidhar Vs. Roopa, more particularly, paragraphs 3 and

4 thereof, which are reproduced hereunder for easy

reference:

“3. It is submitted that since the child was residing with the

father, the jurisdictional Court would be at Bombay and not

at Mysore. So, the arguments centre round about as to

what is to be construed to the word 'ordinarily resides'. S. 9

of the Guardians and Wards Act, 1890 reads thus :--

"Court

having

jurisdiction

to

entertain

application. (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."

In Jeewanti v. Kishan (1982) 1 Kant LJ (SN)

13, Item No. 35, the Supreme Court in a

matter arising has dealt regarding out of Hindu

Marriage Act, the scope of the word "ordinarily

resides", it is held :--

"That the word "resides" must mean the actual

place of residence and not a legal or

constructive residence, it certainly did not

connote the place of origin. It was the actual

residence of the wife a