[Cites 7, Cited by 0]
Bombay High Court
Sayma Mujahid Patel And Another vs Yusuf Khan Abdul Samad Khan on 22 January, 2026
2026:BHC-AUG:2839
(1) AO-66-2025
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPEAL FROM ORDER NO. 66 OF 2025
WITH
CIVIL APPLICATION NO. 8023 OF 2025
IN AO/66/2025
1. Sayma Mujahid Patel
Age: 32 years, Occu: Service,
R/o: Plot No.19, Near Madarsa,
Pardhade Road, Pachora,
Taluka Pachora, District Jalgaon
2. Mohammad Umar Yusuf Khan
Age: 10 years, Occu: Education,
(Under the guardianship of application no.1 - Mother)
(At present in the illegal custody of Respondent)
.....APPELLANTS/
Original Applicants
VERSUS
Yusuf Khan Abdul Samad Khan
Age: 34 years, Occu: Nil,
R/o: Plot No.58, Gut No. 109,
Renuka Mandir Kaman,
Beed Bypass Road,
Behind J.K. Medical,
Satara Parisar,
Chhatrapati Sambhajinagar ....RESPONDENT
Original Respondent
Mrs. Rani Bharuka - Bora, h/f. Mr. Mr. Satyajit S. Bora, Advocate for
Appellants
Mr. Ramiz K. Pathan, Advocate for Respondent
(2) AO-66-2025
CORAM : SHAILESH P. BRAHME, J.
RESERVED DATE : 17.01.2026
PRONOUNCED DATE: 22.01.2026
JUDGMENT :
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1. Taken up for final disposal with the consent of the parties.
2. Appellants are aggrieved by the order passed by the
learned Adhoc District Judge-1 at Jalgaon, rejecting the application for
the custody of the minor on the ground of territorial jurisdiction. It is
recorded that the minor is residing with his father at Aurangabad and
the District Court, Aurangabad would have the jurisdiction.
3. Appellant no.1 and the respondent contracted marriage
on 05.06.2011 and appellant no.2 - son was born on 01.01.2015 from
the wedlock. The marriage was dissolved on 14.09.2016. Appellants
are residing at Pachora, District Jalgaon and the respondent is residing
at Aurangabad. The minor was removed from the custody of appellant
no.1 on or about 13.03.2023 and he was taken to Aurangabad and
since then he is with the respondent who refused to hand over custody.
Appellants preferred Miscellaneous Civil Application No.128 of 2023
under Section 7 r/w 25 of the Guardians and Wards Act, 1890
(hereinafter referred to as "the Act") before District Court, Jalgaon.
4. Application is contested by the respondent. It is
(3) AO-66-2025
specifically stated that it was agreed between the parties that appellant
no.1 was to have custody of the minor till he attained the age of seven
years and thereafter the custody was to be handed over to the
respondent. Accordingly, it is handed over to him. It is further
contended that appellant no.1 contracted second marriage and has
suppressed material facts. It is further contended that she does not
reside at Pachora but resides at Kasabkheda, Taluka and District
Aurangabad.
5. Both parties have produced documentary evidence on
record to show that the custody of the minor is with them. Application
exhibit - 25 was presented by the respondent before District Court at
Jalgaon, for rejection of the petition on the ground of territorial
jurisdiction which was allowed by the impugned order.
6. Learned counsel Mrs. Rani Bharuka- Bora for the
appellants would submit that the ordinary place of the residence of the
minor son is at Pachora and she has adverted my attention to the
documentary evidence to show that he was being admitted in the
School at Pachora. His Adhar Card also discloses the same address. It is
further submitted that temporary custody of the minor with the
respondent is not a decisive factor and an error of jurisdiction has been
committed by the learned Judge. It is submitted that the minor was
being removed from ordinary place of residence and from the custody
of appellant no.1 under foul pretext and by deception. It is further
(4) AO-66-2025
submitted that the residence of appellant no.1 is not relevant for
deciding territorial jurisdiction. Impugned order is stated to be
perverse because the vital aspects of the matter have not been dealt
with by the learned Judge.
7. Per contra, learned counsel for the respondent submits
that as per the Khulanama, the custody was voluntarily handed over to
the respondent and the minor is in his custody. It is further submitted
that in March 2022, appellant no.1 remarried and her husband is
having a daughter from his first marriage and therefore, it would be in
the welfare of the minor to be with the respondent. My attention is
adverted to the various documentary evidence to show that minor is
being admitted in a School at Aurangabad. It is vehemently contended
that appellant no.1 is residing at Kasabkheda and she cannot maintain
a petition before the District Court, Jalgaon. The application for
temporary custody preferred by appellant no.1 is stated to have been
rejected by the Court observing that the minor was being maintained
properly.
8. I have considered rival submissions of the parties. At the outset
it is made clear that the issue of territorial jurisdiction needs to be
decided. The merits of the matter need not be delve upon at this
juncture, which is left for consideration of competent jurisdictional
Court.
9. The marriage stood dissolved by Khulanama whereby it was
agreed between the parties that custody of the minor boy up to 7 years
(5) AO-66-2025
should be with appellant no. 1. Accordingly, minor was in the custody
of appellant no. 1. There is no recital in the Khulanama that custody
was to be handed over to the respondent after seven years. It is his
defence that custody was handed over to him after completion of
seven years. Further, there is no evidence to show that such custody
was ever handed over to the respondent.
10. There is no material on record except bare statement in the say
of the respondent that the custody of the minor has been handed over
to the respondent amicably and peacefully. On the contrary, the
application shows that he was being removed from the custody under
false pretext. The respondent was not responsive for handing over
custody. The custody of minor is with the respondent from 13.03.2023
and in all probabilities he might have been admitted in the school at
Aurangabad thereafter.
11. The appellants have placed on record bona fide certificates of a
school from Pachora and Aadhar card of the minor to show that he
was admitted in the school at Pachora. By way of affidavit in reply
respondent has brought on record that minor has been admitted in
Scholar English School, Aurangabad. The certificates produced by the
respondent including bona fide certificate indicate that he was
admitted in the school in the year 2023-2024. Presently, he is at
Aurangabad staying with the respondent.
12. As per Section 9 of the Act, the ordinary place of residence of
the minor is the only relevant factor for deciding territorial
(6) AO-66-2025
jurisdiction. Minor was not staying all the while with the respondent
rather he was with the appellant-mother and going by the averments
of the plaint he was being removed from her custody deceitfully. The
physical custody of the minor at the time of filing application under
Section 7 is not relevant.
13. Learned counsel Mrs. Bora has relied on judgment of Delhi High
Court in the matter of Manish Sehgal Vs. Meenu Sehgal; 2013 DHC
3633. In that case also territorial jurisdiction of the competent Court
was questioned. The application seeking custody of the minor
daughter was filed by mother in Court at Delhi. Father filed similar
application for custody in Court at Lucknow. It was the case of mother
that place of permanent residence of her parents was the ordinary
place of residence of the minor. It is contended by father that due to
his transferable job minors were admitted in school at Lucknow. After
considering various judgments, following conclusions are drawn:
"15. It is settled law that the place of residence at the
time of the filing of the application under the Act does
not help to ascertain whether a particular court has
jurisdiction to entertain the proceedings or not. The
moving of minors from one place to another and
consequently from one jurisdiction to another does not
help the party who raises the plea of jurisdiction. The
main question i.e. whether the minors were ordinarily
residing in any particular place has to be primarily
decided on the facts of the particular case.
(7) AO-66-2025
16. In view of the above said facts and
circumstances as explained earlier, I am of the view
that the impugned order cannot be interfered with. In
view of facts stated in the petition, it is clear that the
place where the children have gone to study cannot be
presumed to be place of their ordinary residence. The
children were residents of Delhi and were studying in
Delhi prior to starting of matrimonial dispute. The
removal of children by either side to Lucknow cannot
be established permanent home of the children.
Further, the divorce petition filed by the petitioner at
Lucknow has been ordered to be transferred from
Lucknow to Family Courts at Saket, Delhi by the
Supreme Court in the respondent's Transfer Petition
No. 163/2013 decided on 27th May, 2013 as Divorce
Petition No. 2501/2012. In view of the above, the
revision petition is hereby dismissed. No costs."
14. Further reliance is placed on the judgment of Dheeraj Vs. Chetna
Goswami; AIR 2024 All 188. It is relevant to refer to paragraph nos.
14 and 29:
"14. Further, in the case of Manish Sehgal versus Meenu
Sehgal reported in MANU/DE/2252/2013: (2013) 202 DLT
87, rendered by the High Court of Delhi and affirmed by the
Hon'ble Supreme Court of India vide its order dated
30.01.2014 In Manish Sehgal versus Meenu Sehgal, S.L.P.
(8) AO-66-2025
(Civil) No(s). 1590-1590 of 2014; it has been held as follows:
"16. It is settled law that the place of residence at the
time of the filing of the application under the Act does
not help to ascertain whether a particular court has
jurisdiction to entertain the proceedings or not. The
moving of minors from one place to another and
consequently from one jurisdiction to another does
not help the party who raises the plea of jurisdiction.
The main question i.e. whether the minors were
ordinarily residing in any particular place has to be
primarily decided on the facts of the particular case.
17. In view of the above said facts and circumstances
as explained earlier, I am of the view that the
impugned order cannot be interfered with. In view of
facts stated in the petition, it is clear that the place
where the children have gone to study cannot be
presumed to be place of their ordinary residence."
29. The question, whether the minor is ordinarily residing
at a given place is primarily a question of fact which cannot
be decided without an enquiry into the factual aspects of the
case. Moreover, the residence by volition or by compulsion
within the territorial jurisdiction of the Court cannot be
treated as place of ordinary residence. The words "ordinarily
resides are not identical and cannot have the same meaning
(9) AO-66-2025
as residence at the time of filing of the application for grant
of custody. The purpose of using the expressions "where the
minor ordinarily resides is perhaps to avoid the mischief that
minor may be forcibly removed to a distant place, but still the
application for minor's custody could be filed within the
jurisdiction of the Court from whose jurisdiction he had been
removed or in other words where the minor would have
continued to remain but for his removal."
15. It is tried to be urged by the respondent that even appellant
no. 1 does not reside at Pachora. Her residence is of no consequence
to decide territorial jurisdiction. A reliance is placed for that purpose
on the judgment of Sulbhi and others Vs. Bhavnesh Kumar; 2025
PHHC 299, decided by High Court of Punjab and Haryana. It is
relevant to refer paragraph no. 12 of the judgment:
"12. Thus, the legal position which emerges is that
Section 6 (a) of HMGA and Section 9 of GWA operate
in different fields, independent of each other. While
Section 6 of 1956 Act deals with natural guardian of a
Hindu Minor, Section 9 of 1890 Act lays down the
rules with respect to territorial jurisdiction of the
Court, in which the application for custody of the child
has to be filed. The ordinary residence of a child would
determine the jurisdiction of the Court under Section 9
of 1890 Act and thus, the natural guardianship of a
( 10 ) AO-66-2025
minor will not determine the jurisdiction and the two
cannot be superimposed. If the legislature intended
that the residence of the mother should determine the
ordinary residence of the child, it would have used this
expression in Section 9 of 1890 Act. However, this is
not so and therefore, provision of Section 6 of 1956
Act cannot be imported to interpret Section 9 of 1890
Act. It is further clear that jurisdiction of the court to
decide custody matter of the child is where the
ward/child for the time being ordinarily resides. It
does not require that a father or mother must
ordinarily reside with the ward and that such question
may be raised at the time of final hearing of the
application under Section 25 of the said Act."
16. Considering the legal position as is obtainable from above
judgments, I find that impugned order is unsustainable. I, therefore,
pass following order:
ORDER
(i) Appeal from Order is allowed.
(ii) Impugned judgment and order is quashed and
set aside and matter is relegated to District Court
Jalgaon to decide Civil Misc. Application No.
128/2023 on its own merits, expeditiously.
( 11 ) AO-66-2025
(iii) The parties shall appear before the District
Court Jalgaon on 04.02.2026.
(iv) Pending Civil Application is disposed of.
( SHAILESH P. BRAHME, J. )
mkd/-
