Jurisdiction for guardianship applications is determined by the minor's ordinary residence, requiring careful evidence assessment.

J U D G M E N T

C.K. Abdul Rehim, J:

Respondent in OP No.1477/2013 on the files of the Family Court, Thiruvananthapuram, is the petitioner herein. The original petition before the court below was instituted by the respondent herein seeking permanent custody of the minor child born out the wedlock between the parties. The petitioner herein resisted the application, inter alia contending that, the Family Court, Thiruvananthapuram has no jurisdiction to entertain the petition under Section 9 (1) of the Guardian and Wards Act, 1890. He had also filed an interlocutory application as IA No.2454/2013 requesting the court below to consider the question of jurisdiction as a preliminary issue, based on the above contention. The Family Court passed an order on 23-04-2014 observing that, in order to determine the question of jurisdiction, taking evidence will be necessary and directed the parties to adduce evidence on the question of jurisdiction. Thereafter the petitioner herein filed an application seeking revision (review) of the above said order, which was also dismissed by the court below. The matter was taken up before this court in OP (FC) No.357/2013, which was also dismissed by this court. Subsequently evidence was adduced before the court below by both side, on the question of jurisdiction. On consideration of the evidence so adduced, the Family Court had passed Ext.P11 order, dated 12-11-2015 holding that the said court has got jurisdiction to proceed with the case on the basis that the mother of the child, who is the petitioner before the court below, is an ordinary resident of Kannanthura in Thiruvananthapuram. It is aggrieved by the said order that the petitioner is approaching this court by invoking the supervisory jurisdiction vested under Article

227 of the Constitution of India.

2. Contention of the petitioner is that the court below had failed to consider the issue on its real perspective based on the provisions contained under Section 9 (1) of the Guardian and Wards Act, 1890. It is pointed out that the conclusions arrived by the court below that the Family Court, Thiruvananthapuram has got jurisdiction to entertain the application because the respondent herein is ordinarily residing within the jurisdiction of the said court and that her place of residence will have to be considered as the place of ordinary residence of the ward, is totally illegal, is the contention. Merely because the mother of the ward is residing somewhere, it cannot be presumed that it is the ordinary place of residence of the ward. It is contended that the court below had not adjudicated the matter properly, based on the evidence adduced.

3. Heard; counsel appearing for the respondent also.

Section 9 (1) of the Guardian and Wards Act, 1890 provides that the application with respect to guardianship of the person of a minor should be made to the District Court having jurisdiction “in the place where the minor ordinarily resides” (emphasis supplied). Evidently the court below had relied upon 2 decisions of this court which are basically holding the ratio that the place where the minor ordinarily resides need not be the place to which the minor has been temporarily shifted. On the other hand, the question with respect to jurisdiction need to be decided based on the place where the minor ordinarily resides. Discussions contained in the impugned order is only to the effect that the respondent ordinarily resides within the jurisdiction of the Family Court, Thiruvananthapuram. But there is no findings arrived to the effect that the minor ward ordinarily resides at the same place. Evidence is to the effect that the minor ward was taken by the petitioner from the custody of the respondents and he is residing along with ward at Bangalore. Contention of the petitioner is that it was with full consent of the respondent that the ward was taken to Bangalore. The crucial aspect which need to be considered is as to which is the place where the minor is ordinarily re