[Cites 14, Cited by 0]
Delhi High Court
Sh Vipin Kaul vs Smt Kanta Deshwal on 12 March, 2026
Author: Amit Sharma
Bench: Amit Sharma
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 22nd January, 2026
Pronounced on: 12th March, 2026
+ CM(M) 2267/2024, CM APPL. 19991/2024
SH VIPIN KAUL .....Petitioner
Through: Mr. Vipin Raina, Advocate
versus
SMT KANTA DESHWAL .....Respondent
Through: Ms. Rachna Maheshwari and Mr.
Mannu Bansal, Advocates.
CORAM:
HON'BLE MR. JUSTICE AMIT SHARMA
JUDGMENT
AMIT SHARMA, J.
1. The present petition under Article 227 of the Constitution of India,
1950, seeks the following prayers: -
"a) Stay the operation of the impugned order dated 19.01.2024 and
order dated 28.02.2024 till the final disposal of the present petition,
in the interest of justice;
b) Set aside the impugned order under suit no. GP 42/2023 for
lack of territorial jurisdiction of the Hon'ble Ld. Family Court,
District Saket/South, in the interest of justice.
c) Pass any other or further orders which this Hon'ble court deems
fit, expedient and/or appropriate in the facts and circumstances of
this case.
d) Award the costs in favour of the Petitioner, in the interest of
justice."
2. The present petition has been filed assailing the impugned orders dated
19.01.2024 and 28.02.2024. Vide impugned order dated 19.01.2024, the
application under Section 9(1) of the Guardians and Wards Act, 1890 (for
short, 'Act'), filed on behalf of the petitioner was dismissed and he was
directed to file reply/written statement to the Guardianship petition, GP No.
42/2023, filed by the respondent under Section 25 of the Act for grant of
custody of Baby 'K', who is the granddaughter of the respondent.
3. The respondent is mother-in-law of the petitioner and maternal
grandmother (naani) of the child-'K'. The mother of the minor child-'K' is
stated to have passed away on 09.05.2021 due to corona virus. The subject
petition was filed by the respondent seeking custody of her granddaughter
wherein jurisdictional issue was raised by the petitioner and the same was
dismissed by the learned Family Court on 19.01.2024. Vide impugned order
dated 28.02.2024, the petitioner was granted last and final opportunity to file
reply/written statement to the application under Section 12 of the Act subject
to costs of Rs.5,000/-, to be paid to the respondent.
4. Learned counsel for the petitioner submits that vide the impugned order
dated 19.01.2024, the learned Family Court has erred in dismissing the
application under Section 9(1) of the Act inasmuch as the petitioner is
biological father of the minor child has been taking care and looking after his
child baby 'K' since June 2022 at his residential address G-19/2, 1st Floor,
DLF City-I, Sector-26, Chakarpur, Gurugram, Haryana. It is further submitted
that learned Family Court has wrongly concluded that the minor child was
born in Malviya Nagar, Delhi; however, as per birth certificate of the child
issued by SDMC, the place of birth has been mentioned as Apolo Cradle,
Nehru Enclave, Kalkaji, New Delhi. It is submitted that as per aadhar card of
the minor child, the address has been mentioned as Neb Sarai. Therefore, the
observation of the learned Family Court that the child was born in Malviya
Nagar is incorrect in view of the birth certificate of the child. It is further
submitted that minor child was in care and custody of the petitioner and is
ordinarily residing in Gurugram, Haryana, and, therefore, the learned Family
Court in Delhi has no jurisdiction to adjudicate upon the matter. It is the case
of the petitioner that he alongwith his wife, minor child and his father initially
used to reside at Neb Sarai, Delhi; however, in June 2022, they shifted to their
newly purchased house situated at the aforesaid address in Gurugram,
Haryana. It is submitted that there is no documentary evidence on record to
show that minor child used to reside in Malviya Nagar. Learned counsel for
the petitioner has placed on record photographs of the latter alongwith his
minor child and father.
5. Per contra, learned counsel for the respondent submitted that the
impugned order dated 19.01.2024 has been passed after noting all the relevant
judgment with respect to 'ordinary place of residence' and exercise of
discretion conferred under Section 9(1) of the Act. It is submitted that the
daughter of the respondent was staying with her when the birth of the minor
child-'K' had taken place, and thereafter, the daughter of the respondent got
diagnosed with corona virus and since then, till April 2023, the minor child
was ordinarily residing with the respondent in Malviya Nagar and was in
exclusive care and custody of the respondent. It is submitted that thereafter,
the minor child was looked after by the respondent herself and the petitioner
used to visit her occasionally at their home in Malviya Nagar. It is submitted
that aadhar card of the child issued on 14.08.2021 in Delhi mentions the
place of residence as Malviya Nagar, Delhi. It is submitted that the petitioner
has failed to place on record any documentary evidence to show that the child
was staying with him alongwith his family members in Gurugram prior to
filing of the Guardianship petition. It is further submitted that in February,
2023, in clandestine manner, the petitioner changed the residential address of
the minor child in her aadhar card, however, it is pointed out that the
photograph in the aadhar card remained the same as was originally captured.
It is further submitted that, in April 2023, the petitioner unlawfully without
the consent of respondent took the minor child out of the custody to his house
in Gurugram and did not return her. Regarding this, a complaint was filed
with SHO, P.S. Malviya Nagar on 18.05.2023 vide diary no. 294-BPC/2023.
Thereafter, the subject guardianship petition was filed seeking custody of the
minor child. Learned counsel for the respondent submitted that the petitioner
had shifted to Gurugram in 2022 after the purchase of the property; however,
the minor child was staying with the respondent after the demise of the
daughter of the respondent in Malviya Nagar. It is further submitted that a
contempt petition in GP No. 42/2023 was also filed by the respondent with
respect to non-compliance of impugned order dated 28.02.2024 whereby, the
petitioner was directed to bring the minor child to children room, Family
Court, Saket, Delhi, on every 3rd Saturday of the month for an hour from
11.00 AM to 12 noon for visitation so that the respondent/maternal grand
mother of the child could have a interaction with the child during the
pendency of the application under Section 12 of the Act. It is submitted that
the petitioner never turned up at the children room in Family Court, Saket in
compliance with the aforesaid direction. It is submitted that the said contempt
petition is pending sub-judice before the learned Family Court. After the
demise of the daughter of the respondent, the petitioner has re-married and is
started living with his second wife/step mother of the child, who has no love
and affection for minor child 'K',
6. It is further pointed out that the cost of Rs. 5,000/- imposed by learned
Family Court on the petitioner vide impugned order dated 28.02.2024 has not
been paid to the respondent. In these circumstances, it is prayed that the
present petition be dismissed.
7. In rejoinder, learned counsel for the petitioner has submitted that the
change of address in aadhar card in February, 2023 was for the purpose that
new address of the child could be updated in the formal documents. It is
further submitted that the petitioner had exclusive custody of the minor child
since her birth on 17.04.2021 and was looked after by the petitioner at their
residential address in Gurugram, Haryana, and therefore, the present petition
be allowed.
8. Heard learned counsels for the parties and perused the records.
9. Learned Judge, Family Court-01, South, Saket while dismissing the
application under Section 9 of the Guardianship and Wards Act, 1890, filed
by the petitioner raising issue of jurisdiction had observed as under: -
"12.Arguments heard from both the sides. Record perused and
considered.
13.lt is not in dispute that the minor child was born at Malviya
Nagar, Delhi on 17.04.2021. The mother of the minor child expired
due to Corona Virus on 09.05.2021 at Malviya Nagar, Delhi.
According to the respondent, the minor child has been residing at
Gurugram. Haryana with him since June, 2022. On the other hand,
the case of the petitioner is that the respondent deceitfully took away
the minor child in the month of April, 2023. The Aadhar Card of the
minor child was got prepared on 14.08.2021 at the address of
Malviya Nagar, Delhi. From this it is clear that the minor child has
been residing at Malviya Nagar, Delhi. The respondent is claiming
that the minor child has been residing at Gurugram, Haryana since
June. 2012 but there is no document to support it. The copy of
complaint made to SHO PS Malviya Nagar, Delhi dated 18.05.2023
in which the petitioner categorically stated that the respondent took
away the minor child in the month of April. 2023 to his house at
Gurugram, Haryana on the promise that he will return the custody.
of the minor child tb her after 2-3 days but he failed to return the
custody of the minor child to the petitioner. Hence, from the
material on record it is prim. facie established that since her birth on
17.04.2021 the minor child was residing in Delhi with the petitioner
at Malviya Nagar, Delhi till April, 2023. The present petition was
filed on 20.05.2023. · The Court has to see what was the ordinarily
place of residence of the minor child on the date when the petition
seeking custody of the minor child was filed. The minor child has
been residing with the petitioner since the date of birth i.e.
17.04.2021 till April, 2023. The present petition has been filed on
20.05.2023. Thus, the ordinarily place of residence of the minor child
was/is Malviya Nagar, Delhi and not Gurugram, Harya.t1a as
claimed by the respondent.
14.In Amal Saha v. Smt. Basana Saha passed by Guhati High Court
decided on 08.04.1987 held in para no.8 as under:-
8. The language of Sub-section (1) of Section 9 of the Act is
clear und there is no ambiguity. In order to give 1he trial
Court jurisdiction under the Act, the minor must be ordinarily
resident within the local limits of the Jurisdiction of the Court
in view of the provisions contained in the above sub-section.
In other word!; the condition precedent for the purpose of
exercising jurisdiction by the Court is circumscribed by the
condition that the minor must be ordinarily resident within the
jurisdiction of the concerned Court and this is a question of
fact But in deciding this question the Court has to bear in mind
the following principles namely (I) it has to be decided on the
basis of facts available on records. (2) as the expression
'ordinarily resident' has a different meaning than "residence at
the time of application" the Court has to ignore recent removal
if any, from a place where the minor ordinarily resides; if this
fact of recent removal is taken into consideration, the
provisions o{ the Ad will be rendered nugatory: (3) there is no
presumption that the minor is deemed to reside at the place
where his natural guardian resides as tile place of residence of
natural guardian is not the determining factor in deciding the
question of jurisdiction of the Courl However, in deciding, the
place where minor ordinarily resides. The Court comes to a
finding that the minor was residing with any one of his parents.
The question of constructive custody may arise depending on
the circumstances of the case and (4) if the minor has no
permanent abode, he must deemed to reside where he actually
resides.
15. As per the ruling Amal Saha v Smt Basana Saha (Supra) while
considering the ordinary place of residence of a child the Court has
to see what are the facts available on record, the ordinary place of
residence has a different meaning than the residence at the time of
filing of application under the Guardianship and Wards Act, the
Court should not presume that the minor is deemed to reside at the
place where his natural guardian resides and if the minor has no
permanent abode, he must be deemed to reside where he actually
resides. In the case in hand the material available on record clearly
show that the minor child was residing with the petitioner at Delhi.
At the time of filing of the present petition/application the minor
child was residing at Gurugram, Haryana but the same carmot be
considered her ordinary place of residence as she was taken to
Gurugram, Haryana only in the month of April, 2023. Just on the
basis of admission of the minor child in a school at Gurugram,
Haryana and Aadhar Card of the minor child was re-issued at
Gurugram, Haryana it cannot be presumed that the minor child
ordinarily resides at Gurugram, Haryana.
16.In K.C Sashidhar v. Roopa 1993 0 AIR(Kar) 120; 1992 0 IRL(Kar)
2791 the Hon'ble Karnataka High Court has held in para 4 of the ruling:-
4. Invariably, a minor child that too l/1 the age of 10 to 11
months is expected to be with the custody of the mother. So the
words "ordinarily resides'' should be construed as the place
where the mother resides before the presentation of the
petition. It is an admitted fact that in the instant case, the
mother was residing at Mysore when she presented the petition
at Mysore seeking custody of the child. Further; it is to be
noted that she has alleged in her petition circumstances under
which the child was forced to be left in the custody of the
father. When such is the case, the place of residence has to be
construed as the place where. mother resided before presenting
the petition. In view of that, the finding given by the Court
below that the petition filed by the petitioner, namely the
mother, at Mysore, having jurisdiction does not suffer from any
legal infirmities. In Mst. Firoza Begum v. Akhtaruddin
Laskar AIR 1963 Assam 193 wherein the Assam High Court
observed (at p. 194 of AIR):-
"It is contended by Mr. Chose that the expression
"ordinarily resides". does not mean casual or factual
residence of the minors at the time of the application being
made and that normally the residence of the minor should
be taken as the place where the legal guardian is
residing.... That the expression where the minor
"ordinarily resides" appears to have been deliberately
used to exclude places to which the· minor may be removed
at or about the time of the filing of the application for the
enforcement of the guardianship and custody of the minor
and that the phrase "ordinarily resides" indicates ordinary
residence even at the time of the presentation of the
application under Section 25 of the Act, and that the
emphasis is undoubtedly on the minor's ordinary place of
residence."
17. The Hon'ble Karnataka in K.C Sasidhar v. Roopa (supra) held that
the words "ordinarily resides" should be construed as the place where the
mother resides before the presentation of the petition. The mother was
residing at Mysore when she presented that petition a Mysore seeking
custody of the child. She also stated in the petition the circumstances
under which the child was forced to be left in the custody of the father
and in such a case the place of residence for the minor child has to be
construed at the place where the mother resides. K.C Sashidhar (Supra) is
squarely applicable to the facts of the present case as in the case in hand
also the minor child was residing with the her nani/petitioner since birth
and it was only in the month of April, 2023 the custody of the child was
taken by the respondent, therefore, the ordinary place of residence of the
minor child is Delhi where the petitioner is residing.
18. In Sunaina Chowdhary v. Vikas Chowdhary 2013 0 AIR (P H) 147:
2012 4 Law Herald 2971 Hon'ble Punjab & Haryana High Court has
held in para 15 as under:-
"15. In a recent judgment reported as Prashant Chanana v.
Mrs. Seema alias Priya (2010) 1 RCR (Civil) 400, it has been
held by a single judge of this court that the permanent
residence is an elastic word which the exhaustive definition
cannot be given. It was held to the following effect:-
"12. Section 9(1) makes it clear that it is the ordinary place
of residence of minor which determines the jurisdiction of a
particular Court to entertain an application for
guardianship of the minor. Such jurisdiction cannot be
taken away by temporary residence elsewhere at the date of
presentation of the challan (plaint sic). The terms
'residence' is an elastic word of which an exhaustive
definition cannot be given. It is differently construed
according to the purpose for which enquiry is made into
meaning of the term. The sense in which it should be used is
controlled by reference to the objector. A reasonable
meaning of 'residence' would mean dwelling in a place for
some continuous time. The word 'ordinarily resides' in sub
Section 1 means mere a temporary residence, even though,
it will be of such temporary residence may be considerable.
Word ordinarily resides would mean a regular normal a
settled home or a regular place of abode, which can be
distinguishable from a temporary or a forced stay. If a
minor child has been removed either by stealth or by
compulsion and kept at a different place than the house of a
natural born, the same cannot be said to be a place where
the child 'ordinarily resides'. The respondent has in her
petition for the custody of the child specifically mentioned
and actually admitted that the child has been taken to
Lucknow. She also explained the circumstances that the
child had been snatched from her when she was residing at
Mohali, where the couple had shifted after three years of
marriage."
19. The Punjab & Haryana High Court in Sunaina Chowdhary v. Vikas
Chowdhary (Supra) has held that the word "ordinarily resides" would
mean a regular, normal, a settled home or regular place of abode which
can be distinguishable from a temporary or a forced stay. In the case in
hand, the regular, normal, settled home of the minor child is in Delhi and
she was temporarily residing at Gurugram, Haryana.
20. The rulings relied upon by the learned counsel for the respondent are
not to any help of the respondent because the ordinarily place of
residence of the minor child was Malviya Nagar, New Delhi at the time
of filing of the present petition.
21. In view of the above discussions and considering the facts of the case
it is clear that the ordinary place of the residence of the minor child is
Malviya Nagar, Delhi where the petitioner was/is residing with the minor
child. There is no merit in the application U/s 9(1) of the GW Act and the
same is dismissed."
(emphasis supplied)
10. Perusal of the record shows that, as per birth certificate of the minor
child 'K' dated 31.05.2021 issued by SDMC, the date and place of birth of the
child is stated to be 17.04.2021 and Apolo Cradle, R-2, Nehru Enclave,
Kalkaji, New Delhi, respectively. It is the case of the respondent that after the
birth of minor child she has been in custody and care of the respondent at her
residential address in Malviya Nagar, Delhi. It is further the case of the
respondent that the petitioner had unlawfully taken the child out of her
custody in May 2023, and never returned the child regarding which a
complaint was filed with SHO, P.S. Malviya Nagar. The Aadhar card of the
child 'K' prepared on 14.08.2021 reflects the address of Neb Sarai, Delhi. It is
the case of the petitioner that he had relocated with the minor child to
Gurgaon in June 2022. The Aadhar card, on which the petitioner placed
reliance on, reflecting the updated address of Gurugram, Haryana, was
prepared in February 2023. Relying on the aforesaid Aadhar card, it is the
case of the petitioner, that the learned Family Court erred in holding that the
child was living with the respondent at her residential address in Malviya
Nagar, Delhi. It is pertinent to note that the documents relied upon by the
petitioner were to the effect that the child was born in Delhi, and the address
given was of petitioner while he was living in Delhi. Even if, the argument of
learned counsel for the petitioner is accepted, the jurisdiction will not change
from Delhi to Gurugram. It is the contention raised on the behalf of the
petitioner was that the complaint filed by the respondent at P.S. Malviya
Nagar does not bear any details demonstrating as to when the same was
actually filed. It is pertinent to note that the said complaint is bearing diary
No.294-BPC/2023 and is dated 18.05.2023 and the subject guardianship
petition was filed on 20.05.2023.
11. Moreover, admittedly, in the present petition, the petitioner has made
the following averments: -
"14. That while the petitioner was occupied with caring for his late
wife, Mrs. Priyanka, both at home and at Lady Harding Hospital in
Delhi, and later to perform the rituals following her demise on
09.05.2021, the minor child was briefly taken care by the sister-in-law of
the Respondent.
15. That after the passing of the minor child's biological mother, The
Petitioner used to make flying visits to Respondent's house to ensure her
wellbeing, during these visits, the petitioner observed that after the
demise of respondent's daughter, the respondent became excessively
obsessed with the minor child so much so that the respondent even
contemplated calling upon the spirit of her late daughter. The respondent
is grappling with mental health challenges following the loss of her
husband and daughter."
Thus, the petitioner admits the fact that the child was at one time in the
custody of the respondent. In these circumstances, complaint dated
18.05.2023 filed by the respondent at Police Station Malviya Nagar becomes
relevant to demonstrate that the child was ordinarily residing with respondent
before being taken away in April 2023, and thus, at the time of filing of
guardianship petition.
12. At this stage, it is apposite to the refer to the judgment of Hon'ble
Madhya Pradesh High Court in Adesh Gupta v. Sadhna Gupta1, by Hon'ble
Mr. Justice Alok Aradhe, as his lordship then was, wherein, while dealing
with the issue of territorial jurisdiction under Section 9 of the Guardians and
Wards Act, 1890, it was observed and held as under: -
"7. It is well settled in law that while dealing with the application under
Order 7, Rule 11 of the Civil Procedure Code, only the averments made
in the plaint alone are to be seen See : Saleem Bhai v. State of
Maharashtra, 2003 (2) MPLJ (S.C.) 320 : (2003) 1 SCC 557. In the case
of Ruchi Majoo, supra, the Supreme Court while considering section 9(1)
of the Act has held that solitary test for determining the jurisdiction of
the Court under section 9 is ordinary residence of the minor. The
expression used in section 9(1) of the Act is "where the minor ordinarily
resides". Whether the minor is ordinarily residing at a given place is
primarily a question of intention which in turn is a question of fact.
It may at best be mixed question of law and fact. It has further been
held that unless jurisdictional facts are admitted, it can never be
pure question of law capable of being answered without an enquiry
into the factual aspects of the controversy.
8. Thus, from the aforesaid enunciation of law by the Supreme Court, it
is apparent that 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. Besides that it is relevant to
mention here that residence by volition or by compulsion within
territorial jurisdiction of the Court cannot be treated as place of ordinary
residence. Similarly, the words "ordinarily resides" are not identical and
cannot have the same meaning 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 probably 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
2012 SCC OnLine MP 135: (2012) 1 MP LJ 406
removed or in other words where the minor would have continued to
remain but for his removal. Similar view has been taken
in Konduparthi Venkateshwarlu v. Ramavarapu Viroja Nandan, AIR
1989 Orissa 151. If the averments made by the respondent in paragraphs
4, 11, 15 and 16 of the petition filed by her are seen, it is apparent that
the children have been removed from Chhattarpur without her consent.
The jurisdictional facts are not admitted and the petition, contains
the averment that the Court at Chhattarpur has the territorial
jurisdiction to try the petition. The question whether the Court at
Chhattarpur has territorial jurisdiction to try the petition is a mixed
question of law and fact, as the same is dependent on the question
whether the minors are residing within the territorial jurisdiction of
the Court. The aforesaid question cannot be determined without
holding enquiry into the factual aspects of the controversy. The
scope of scrutiny at the stage of consideration of an application
under Order 7, Rule 11 of Civil Procedure Code is confined only to
the averments made in the petition. Thus, the question whether the
Court has territorial jurisdiction being mixed question of law and
fact cannot be decided by way of an application under Order 7, Rule
11 of Civil Procedure Code."
(emphasis supplied)
13. Further, reference can be made to a judgment passed by learned
Division Bench of Hon'ble Allahabad High Court in Dheeraj v. Chetna
Goswami2, wherein it was observed and held as under: -
"11. From a bare reading of Section 9 of the Guardians and Wards Act,
1890, it is evident that sub-section (1) of Section 9 identifies the court
competent to pass an order for the custody of the minor. Sub-sections (2)
and (3) thereof deal with courts that can be approached for guardianship
of the property owned by the minor.
12. For determining the territorial jurisdiction of the court under Section
9 of the Guardians and Wards Act, 1890, the expression "where the
minor ordinarily resides" is the pivotal point for consideration. The said
(2024) 1 High Court Cases (All) 496: 2024 SCC OnLine All 1610
expression has been used in different contexts and has often come up for
interpretation before the courts of law. While reading the said expression
"where the minor ordinarily resides", it is imperative to see whether the
minor is ordinarily residing at a given place? This is primarily a question
of intention which, in turn, is a question of fact. It may at best be a
mixed question of law and fact but unless jurisdictional facts are
admitted, it can never be a pure question of law, capable of being
answered without any enquiry into the factual aspects of the
controversy.
**** **** ****
26. It is settled law that for invoking clause (d) of Order 7 Rule 11 of the
Civil Procedure Code, 1908, only the averments made in the plaint would
be relevant and thus, for this purpose, there cannot be any addition of
subtraction. The issue of merits of the matter would not be within the
realm of the court as the court at that stage will not consider any
evidence or enter a disputed question of fact or law. While dealing with
the application under Order 7, Rule 11 of the Civil Procedure Code,
1908, the averments made in the plaint alone are to be seen. It is also trite
that jurisdiction is a mixed question of law and fact, and a plaint should
not ordinarily be rejected on the ground of jurisdiction, without framing a
distinct issue and taking evidence.
**** **** ****
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 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.
30. In Ruchi Majoo v. Sanjeev Majoo [Ruchi Majoo v. Sanjeev
Majoo, (2011) 6 SCC 479 : (2011) 3 SCC (Civ) 396 : (2011) 2 SCC (Cri)
1033] , the Supreme Court while considering Section 9(1) of the
Guardians and Wards Act, 1890 has held that solitary test for
determining the jurisdiction of the court under Section 9 of the Guardians
and Wards Act, 1890 is ordinary residence of the minor. The expression
used in Section 9(1) is "where the minor ordinarily resides". Whether the
minor is ordinarily residing at a given place is primarily a question of
intention which in turn is a question of fact. It may at best be mixed
question of law and fact. It has further been held that unless
jurisdictional facts are admitted, the question "where the minor
ordinarily resides" can never be pure question of law, capable of being
answered without an enquiry into the factual aspects of the controversy."
(emphasis supplied)
14. In the present case, jurisdictional facts are not admitted. Thus, the issue
whether Delhi Court will have jurisdiction becomes a mixed question of law
and fact which cannot be determined without holding an enquiry whether the
child was residing in Delhi before being taken away to Gurugram as has been
claimed and pleaded in the guardianship petition. In these circumstances, this
Court does not find any ground to interfere with the impugned order dated
19.01.2024 in GP No.42/23 passed by learned Judge, Family Court-01, South,
Saket, Delhi, as the same can be considered to be preliminary in nature.
Needless to state that, in case, the petitioner takes an objection in the written
statement with regard to maintainability of the guardianship petition filed on
behalf of the respondent under Section 9 of the Act on the ground of lack of
territorial jurisdiction, the learned Judge, Family Court, shall decide the same
in accordance with law without being influenced by the aforesaid impugned
order.
15. Further, learned Judge, Family Court vide impugned order dated
28.02.2024 had granted one last and final opportunity to the petitioner to file
reply/written statement and reply to application under Section 12 of the Act,
subject to cost of ₹5000/- to be paid to the respondent and supply advance
copy to the opposite party. In view of the fact and circumstances of the
present case, aforesaid cost is waived off. The petitioner is directed to file
reply/written statement within a period of three weeks before the learned
Judge, Family Court, South, Saket, Delhi, with an advance copy to learned
counsel appearing on behalf of the respondent herein before learned Family
Court.
16. The present petition is disposed of in the aforesaid terms.
17. Interim order dated 04.04.2024 stands vacated.
18. Pending application(s), if any, also stand disposed of accordingly.
19. Copy of the judgment be sent to the learned Judge, Family Court-01,
Saket, South, Delhi, for necessary information and compliance.
20. Judgment be uploaded on the website of this Court, forthwith.
AMIT SHARMA
(JUDGE)
MARCH 12, 2026/bsr/ns
