Allahabad High Court
Mayank Srivastava vs Smt. Meenakshi Srivastava on 10 September, 2025
Author: Rajnish Kumar
Bench: Rajnish Kumar, Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:54646-DB
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
FIRST APPEAL DEFECTIVE No. - 162 of 2025
Mayank Srivastava
.....Appellant(s)
Versus
Smt. Meenakshi Srivastava
.....Respondent(s)
Counsel for Appellant(s)
:
Madhav Om, Gursimran Kaur, Samir Om
Counsel for Respondent(s)
:
Court No. - 10
HON'BLE RAJNISH KUMAR, J.
HON'BLE RAJEEV SINGH, J.
C.M.Application No.1 of 2025
Heard, Shri Madhav Om, learned counsel for the appellant and learned A.G.A.
This is an application for condonation of delay in filing the appeal.
The office has reported a delay of thirteen days in filing the appeal, whereas learned counsel for the appellant submits that there is delay of only one day as some time was consumed in correction of the order as there was some discrepancy in the order.
On due consideration of the submissions and the grounds shown in the affidavit filed in support of the application for condonation of delay, the grounds are sufficient to condone the delay. The application is allowed. The delay in filing the appeal is condoned.
In Re;First Appeal
1. Learned counsel for the appellant submits that the suit for custody of the minor child filed by the appellant has wrongly and illegally been dismissed by the Family Court on the ground of territorial jurisdiction, whereas the permanent residence of the respondent is in Raebareli, who is mother of the minor, which is within the jurisdiction of the Family Court, Raebareli.
2. We have considered the submissions of learned counsel for the parties and perused the record.
3. The suit for custody of child was filed by the appellant as there is a matrimonial discord between the appellant and the respondent and divorce has taken place. Thereafter the respondent married with one Piyush Kumar Srivastava and residing with him at Kanpur. The minor child is residing with his mother and also studying at Kanpur. Section 9 of the Guardians and Wards Act, 1890 provides the jurisdiction to entertain the application, which is extracted here-in-below:-
"9. 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. (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."
4. Sub-Section (1) of Section 9 provides that the application with respect to the guardianship of the person of the minor shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. "Ordinarily resides" has been dealt with by a Division Bench of this court in the case of Jagdish Chandra Gupta Versus Dr.Ku.Vimla Gupta; (2003) SCC Online All 292. The Division Bench has held that the expression "ordinarily resides" as used in Section 9(1) of the Act signifies dwelling in a place for some continuous time. "Ordinarily resides", therefore, has to be some thing more than a temporary residence. Relevant paragraph 19 is extracted here-in-below:-
"18. It has been urged that the expression ?ordinarily resides? as used in Section 9(1) of the Act signifies dwelling in a place for some continuous time. ?Ordinarily resides? therefore, has to be some thing more than a temporary residence. Even though the period of such temporary residence may be considerable, the place where the minor generally resides and would be expected to reside but for special circumstances may be taken to, be the place denoting a place where the minor ordinarily resides. The other aspect which cannot be ignored is that when a person leaves a place where he had been residing as permanent resident for good i.e., with no intention to come back and goes to some other place to live there, the former place where he used to live, ceases to be his ordinary place of residence and the later place becomes his ordinary place of residence. The question of residence is largely a question of intention. However, in cases of the minor no question of intention can arise but the Court will have to take into consideration all the relevant facts as brought on record to determine the actual place of residence looking the attendant circumstances. The past abode for however a long period it may be, can cease to be a place where the minor can be said to be ordinarily residing depending upon the facts and circumstances of each case and the nature and duration of the residence. The mere fact that a minor is found actually residing at a place at the time of the application is made by itself is not sufficient to determine the jurisdiction."
5. Adverting to the facts of the present case, admittedly the appellant and respondent were married on 09.02.2009. Out of the said wedlock a son, namely, Shubh Srivastava was born on 24.06.2010. On account of some matrimonial dispute between the parties a divorce petition was filed on 23.01.2014 before the Principal Judge, Family Court, Haridwar, which was transferred to the Family Court, Raebareli by means of order dated 16.11.2015 passed in Civil Writ Petition (Transfer) No.703 of 2015 filed by respondent Smt.Meenakshi Srivastava, which was registered as Regular Suit No.1070 of 2015 and by means of the judgment and decree dated 13.10.2017 the decree of divorce was passed. Thereafter the respondent Smt. Meenakshi Srivastava was married to Piyush Kumar Srivastava on 24.02.2018 and the marriage was registered on 26.02.2018. Since then she is residing at her in-laws house at Kanpur with the son of the parties Master Shubh Srivastava. As per the findings recorded in the impugned order dated 05.07.2025 it is born out from the pleadings of the parties before the Family Court that the name of Master Shubh Srivastava has been got changed as Master Achintaya Kumar Srivastava, who was admitted in Class-III in the Session 2018-19 in All Bright Global School, Kanpur on 09.04.2018. The fact of residing of the minor child of the parties in Kanpur after 24.02.2018 has not been disputed by the appellant. Thus it is apparent that the minor child is ordinarily residing at Kanpur with his mother, where he is studying. Merely because the parental house of the respondent may be at Raebareli, it cannot be said that the minor child ordinarily resides at Raebareli, even if he occasionally goes to Raebareli. The contention of learned counsel for the appellant is misconceived and liable to be rejected only and it is accordingly rejected.
6. In view of above, this appeal has been filed on misconceived and baseless grounds, which is liable to be dismissed.
7. The appeal is, accordingly, dismissed.
(Rajeev Singh,J.) (Rajnish Kumar,J.)
September 10, 2025
Banswar
