Punjab-Haryana High Court
Sulbhi And Ors vs Bhavnesh Kumar on 7 January, 2025
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pe on on the ground that the child - Rehanshi born on 18.05.2019 is
ordinarily residing at Jalandhar (Punjab) and therefore, the Court did not
have territorial jurisdic on to entertain the pe on.
3.3 However, the Court of learned Civil Judge (Sr. Divn.)/Guardian
Judge, Chandigarh rejected the said applica on by way of the impugned
order dated 29.05.2024 (Annexure P-1). The reasoning given by Ld. Court is
that both father and mother of the child are residing in Chandigarh; that the
custody of a child below 05 years of age (especially female child) would
naturally lie with the mother and therefore, the deemed custody would be
with the mother, even if the actual custody was with the parents of the
mother. With this reasoning, the Court held that the Chandigarh Court has
the jurisdic on in the ma6er and as such, dismissed the applica on.
4. Assailing the aforesaid order by way of present pe on, it is
contended by Ld. Counsel for the pe oners i.e. mother of the child
alongwith her parents that as per the own case of the father, the child was
residing at Jalandhar ever since 12.06.2021. Learned counsel contends that
the said child is pursuing her studies for the last more than 03 years at
Jalandhar and therefore, in view of Sec on 9 of the Guardian and Wards Act,
1890, the ordinary place of residence of the child is Jalandhar and therefore,
the Court at Chandigarh do not have the jurisdic on to entertain the pe on.
Learned counsel has referred to FAO No.2294 of 2024, tled as "Rajesh v.
Komal" , decided by the Division Bench of this Court on 27.08.2024; "J K v.
NS", 2019: DHC: 3125-DB, a decision of the Division Bench of Delhi High
Court, besides "Ruchi Majoo v. Sanjeev Majoo" (2011) 6 SC 479.
5. Refu ng the aforesaid conten ons, it is urged by learned counsel
for the father of the child, i.e. respondent herein that both the par es, i.e.
father as well as mother of the child are residing in Chandigarh; that as per
the own conten on of the mother of the child, i.e. pe oner No.1 herein, the
child was removed from the custody of her ordinary residence of Chandigarh
on 12.06.2021 and therefore, such removal from the ordinary residence of
the child will not oust the jurisdic on of the Chandigarh Court. It is also the
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conten on of learned counsel that par es are under li ga on in numerous
cases, all of which are pending before the Chandigarh Courts. With these
submissions, he prays for dismissal of the present pe on.
6. I have considered submissions of both the sides and have
appraised the record carefully.
7. Sec on 9 of the Guardian and Wards Act, 1890 reads as under:-
"9. Court having jurisdic on to entertain applica on
(1) If the applica on is with respect to the guardianship of the person of the
minor, it shall be made to the District Court having jurisdic on in the place
where the minor ordinarily resides.
(2) If the applica on is with respect to the guardianship of the property of
the minor, it may be made either to the District Court having jurisdic on in
the place where the minor ordinarily resides or to a District Court having
jurisdic on in a place where he has property.
(3) If an applica on with respect to the guardianship of the property of a
minor is made to a District Court other than that having jurisdic on in the
place where the minor ordinarily resides, the Court may return the
applica on if in its opinion the applica on would be disposed of more justly
or conveniently by any other District Court having jurisdic on."
8. Sec on 6 of the Hindu Minority and Guardianship Act, 1956
reads as under:-
"6. Natural guardians of a Hindu minor.--
The natural guardian of a Hindu minor, in respect of the minor's person as
well as in respect of the minor's property (excluding his or her undivided
interest in joint family property), are--
(a) in the case of a boy or an unmarried girl--the father, and aAer him, the
mother:
provided that the custody of a minor who has not completed the age of five
years shall ordinarily be with the mother;
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(b) in case of an illegi mate boy or an illegi mate unmarried girl--the
mother, and aAer her, the father;
(c) in the case of a married girl--the husband: Provided that no person shall
be en tled to act as the natural guardian of a minor under the provisions of
this sec on--(a)if he has ceased to be a Hindu, or(b)if he has completely and
finally renounced the world by becoming a hermit (vanaprastha) or an
asce c (ya or sanyasi)."
9.1 A Division Bench of this Court in Rajesh vs. Komal's case (supra),
considered the same issue rela ng to the jurisdic on of the Court in the case
of custody of the minor child. AAer referring to the aforesaid provisions, i.e.
Sec ons 9 of the Guardian and Wards Act, 1890 and Sec on 6 of the Hindu
Minority and Guardianship Act, 1956 besides Sec on 12, 17 and 25 of the
Guardian and Wards Act, 1890; and Sec on 4 of the Hindu Minority and
Guardianship Act, 1956, this Court has held as under:-
"8. The ques on which is to be decided by this Court is interpreta on of the
expression "the place where the minor ordinarily resides" referred to in
Sec on 9(1) of the Guardian and Wards Act, 1890.
ANALYSIS OF JUDGMENTS REFERRED TO BY THE LEARNED COUNSEL FOR
THE RESPONDENT AND THE FAMILY COURT
1.Smt. Sarabjit Vs. Piara Lal and Another (2005(3) RCR (Civil) 213);
2. Amit Kashyap Vs. Pooja [2017(1) Law Herald)
3. Akshay Gupta Vs. Divya [2021(1) RCR (Civil) 7221
9. In all the above referred to judgments learned Single Bench of this Court
decided the ques on of jurisdic on by interpre ng the expression "minor
ordinarily resides" as used in Sec on 9 of the Guardian and Wards Act, 1890
to mean, for the children below 5 years of age to be residence of the mother
in view of Sec on 6 (a) of the Hindu Minority and Guardianship Act, 1956.
We find that all the above referred to decisions of learned Single Judge are
per-incuriam and Sec on 9 of the Guardian and Wards Act 1890, has been
wrongly interpreted.
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10. A perusal of the defini on of 'Guardian' shows that the guardian is the
person who is having the care of the person of a minor or his property or
both his person and property which includes natural guardians.
11. Sec on 6 defines natural guardian of the Hindu minor, as per which the
natural guardian of Hindu minor in respect of minor's persons as well as in
respect of minor's property is in case of boy or unmarried girl, the father and
aAer him, the mother. Proviso to this sec on states that the custody of
minor who has not completed the age of five years shall ordinarily be with
the mother.
12. By using the language "shall ordinarily be with the mother" the inten on
of the legislature is that since the child below 5 years is normally breast-
feeding child and requires love and affec on from the mother and since
mother gives birth to the child, the child is more comfortable in the lap of
the mother, therefore the inten on of the legislature is welfare and the
comfort of the child. For that the language is "shall ordinarily be with the
mother" and not "shall be with the mother". By using the words "shall
ordinarily be with the mother", the inten on of the legislature is to see the
welfare of the child. The custody of the minor cannot be with the mother
who is unchaste, insane, leading immoral life, insensi ve, leading to
estranged matrimonial rela onship with her husband (the father of the
child), sick, physically or mentally suffering from any disability, not
conducive for ideal upbringing of the child. Therefore, the inten on of the
legislature is that the proviso to Sec on 6(a) of the Hindu Minority and
Guardianship Act, 1956 is not mandatory but depends upon the welfare of
the child. If the inten on of the legislature under Sec on 6 of the Hindu
Minority and Guardianship Act, 1956 would have been that the natural
guardian of Hindu minor who has not completed the age of 5 years shall be
the mother, then the provisions under Sec ons 12, 17 and 25 of the
Guardian and Wards Act, 1890 would be redundant for the minor below the
age of 5 years.
13. A bare perusal of the provision of Sec on 17 of the Guardian and Wards
Act, 1890 shows that this is mandatory provision, which reads that in
appoin ng or declaring the guardian of a minor, the Court shall, subject to
the provisions of Sec on 17 of Guardian and Wards Act 1890, be guided by
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what, consistently with the law to which minor is subject, appears in the
circumstances to be for the welfare of the minor. It further reads that in
considering what will be for the welfare of the minor, the Court shall have
regard to the age, sex and religion of the minor.
14. Sec on 25 deals with the tle of guardian to custody of ward. It reads
that if a ward leaves or is removed from the custody of the guardian of his
person, the Court, if of the opinion that it will be for the welfare of the ward
to return to the custody of his guardian, may make an order for his return
and for the purpose of enforcing the order may cause the ward to be arres-
ted and to be delivered into the custody of the guardian.
15. A conjoint reading of all the above referred to statutory provisions shows
that the inten on of the legislature in Sec on 9 with respect to the jurisdic-
on is that applica on for the guardianship of the person of the minor shall
lie to the District Court having jurisdic on in the place where the minor is ac-
tually and physically residing and not as per the proviso to Sec on 6 (a) of
Hindu Minority and Guardians Act, 1956."
9.2 Hon'ble Division Bench of this High Court in Rajesh vs. Komal's
case (supra), further referred to "Rosi Jacob v. Jacob A. Chakramakkal" 1973
AIR Supreme Court 2090, and held as under:-
"17. A perusal of the above referred to judgment shows that the Hon'ble
Supreme Court while interpre ng Sec on 25 of the Guardian and Wards Act
held that the object and purpose of this provision being ex facie to ensure
the welfare of the minor child, which necessarily involved due protec on of
the right of his guardian to properly look aAer the ward's health,
maintenance and educa on, this sec on demands reasonably liberal
interpreta on so as to effectuate that object. It is further held hyper-
technicali es should not be allowed to deprive the guardian of the necessary
assistance from the Court in effec vely discharging his du es and obliga ons
towards his ward so as to promote the la6er's welfare."
18. In "Ruchi Majoo v. Sanjeev Majoo", 2011(6) SCC 479, para 3 of the
judgment refers to the facts of the case, which is reproduced as under:-
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"3. The present happens to be one such case where legal proceedings
have engaged the par es in a bi er ba le for the custody of their only
child Kush, aged about 11 years born in America, hence a ci zen of
that country by birth. These proceedings included an ac on filed by
the father-respondent in this appeal, before the American Court
seeking divorce from the respondent- wife and also custody of master
Kush. An order passed by the Superior court of California, County of
Ventura in America eventually led to the issue of a red corner no ce
based on allega ons of child abduc on levelled against the mother
who like the father of the minor child is a person of Indian origin
currently living with her parents in Delhi. The mother took refuge
under an order dated 4th April, 2009 passed by the Addl. District Court
at Delhi in a pe on filed under Sec ons 7, 8, 10, 11 of the Guardians
And Wards Act gran ng interim custody of the minor to her.
Aggrieved by the said order the father of the minor filed a pe on
under Ar cle 227 of the Cons tu on of India before the High Court of
Delhi. By the order impugned in this appeal the High Court allowed
that pe on, set aside the order passed by the District Court and
dismissed the custody case filed by the mother primarily on the
ground that the Court at Delhi had no jurisdic=on to entertain the
same as the minor was not ordinarily residing at Delhi - a condi=on
precedent for the Delhi Court to exercise jurisdic=on. The High Court
further held that all issues rela=ng to the custody of child ought to
be agitated and decided by the Court in America not only because
that Court had already passed an order to that effect in favour of
the father, but also because all the three par=es namely, the parents
of the minor and the minor himself were American ci=zens. The High
Court bu ressed its decision on the principle of comity of courts and
certain observa ons made by this Court in some of the decided cases
to which we shall presently refer."
Three ques ons were framed by the Hon'ble Supreme Court for determina-
on. In the present case only the first ques on would be relevant "whether
the High Court was jus fied in dismissing the pe on for custody of the
minor on the ground that the Court at Delhi had no jurisdic on to enter-
tain the same"
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Hon'ble Supreme Court in the case of Ruchi Majoo (supra) while dealing
with Sec on 9 of the Guardian and Wards Act, 1890, held as under:-
"5. There is no gainsaying that any challenge to the jurisdic on of the
court will have to be seen in the context of the averments made in the
pleadings of the par es and the requirement of Sec on 9 of the
Guardian and Wards Act, 1890. A closer look at the pleadings of the
par es is, therefore, necessary before we advert to the legal require-
ment that must be sa sfied for the Court to exercise its powers under
the Act men oned above.
* * * * *
13. Sec on 9 of the Guardian and Wards Act, 1890 makes a specific
provision as regards the jurisdic on of the Court to entertain a claim
for grant of custody of a minor. While Sub-sec on (1) of Sec on 9
iden fies the court competent to pass an order for the custody of the
persons of the minor, sub-sec ons (2) & (3) thereof deal with courts
that can be approached for guardianship of the property owned by
the minor. Sec on 9(1) alone is, therefore, relevant for our purpose. It
says:
"9. Court having jurisdic on to entertain applica on- (1) If the ap-
plica on is with respect to the guardianship of the person of the
minor, it shall be made to the District Court having Jurisdic on in
the place where the minor ordinarily resides."
14. It is evident from a bare reading of the above that the solitary test
for determining the jurisdic on of the court under Sec on 9 of the Act
is the 'ordinary residence' of the minor. The expression used is "Where
the minor ordinarily resides". Now whether the minor is ordinarily
residing at a given place is primarily a ques on of inten on which in
turn is a ques on of fact. It may at best be a mixed ques on of law
and fact, but unless the jurisdic onal facts are admi ed, it can never
be a pure ques on of law, capable of being answered without an
enquiry into the factual aspects of the controversy. The factual
aspects relevant to the ques on of jurisdic on are not admi ed in the
instant case. There are serious disputes on those aspects to which we
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shall presently refer. We may before doing so examine the true
purpose of the expression 'ordinarily resident' appearing in Sec on
9(1) (supra). This expression has been used in different contexts and
statutes and has oCen come up for interpreta on. Since liberal
interpreta on is the first and the foremost rule of interpreta on it
would be useful to understand the literal meaning of the two words
that comprise the expression. The word 'ordinary' has been defined by
the Black's Law Dic onary as follows:
"Ordinary (Adj.) Regular; usual; normal; common; oCen recurring,
according to established order; se led; customary: reasonable;
not characterised by peculiar or unusual circumstances; belonging
to, exercised by, or characteris c of. the normal or average indi-
vidual."
15. The word 'reside' has been explained similarly as under:
"Reside live, dwell, abide, sojourn, stay, remain, lodge. (Western-
Knapp Engineering Co. V. Gillbank, C.C.A. Cal., 129 F2d 135,
136.) To se le oneself or a thing in a place, to be sta oned, to re-
main or stay, to dwell permanently or con nuously, to have a
se led abode for a me, to have one's residence or domicile; spe-
cifically, to be in residence, to have an abiding place, to be
present as an element, to inhere as quality, to be vested as a
right. (State ex rel. Bowden v. Jensen Mo., 359 S.W.2d 343,
349.)"
16. In Websters dic onary also the word 'reside' finds a similar mean-
ing, which may be gainfully extracted:
"1. To dwell for a considerable me; to make one's home; live.
2. To exist as an a ribute or quality with in. 3. To be vested:
within"
16A. In Mrs. Annie Besant v. Narayaniah AIR 1914 Privy Council 41
the infants had been residing in the district of Chingleput in the
Madras Presidency. They were given in custody of Mrs. Annie Besant
for the purpose of educa on and were geKng their educa on in Eng-
land at the University of Oxford. A case was, however, filed in the dis-
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trict Court of Chingleput for the custody where according to the
plain ff the minors had permanently resided. Repea ng the plea that
the Chingleput Court was competent to entertain the applica on their
Lordships of the Privy Council observed:
"The district court in which the suit was ins tuted had no jurisdic-
on over the infants except such jurisdic on as was conferred by
the Guardians and Wards Act 1890. By the ninth Sec on of that
Act the jurisdic on of the court is confined to infants ordinarily
residing in the district.
It is in their Lordship's opinion impossible to hold that the infants
who had months previously leC India with a view to being edu-
cated in England and going to University had acquired their ordin-
ary residence in the district of Chingleput."
17. In Mst. Jagir Kaur and Anr. v. Jaswant Singh, AIR 1963 Supreme
Court 1521, this Court was dealing with a case under Sec on 488
Criminal Procedure Code and the ques on of jurisdic on of the Court
to entertain a pe on for maintenance. The Court no ced a near
unanimity of opinion as to what is meant by the use of the word
"resides" appearing in the provision and held that "resides" implied
something more than a flying visit to, or casual stay at a par cular
place. The legal posi on was summed up in the following words:
"...... Having regard to the object sought to be achieved, the
meaning implicit in the words used, and the construc on placed
by decided cases there on, we would define the word "resides"
thus: a person resides in a place if he through choice makes it his
abode permanently or even temporarily, whether a person has
chosen to make a par cular place his abode depends upon the
facts of each case....."
18. In Kuldip Nayar & Ors. v. Union of India & Ors., 2006(7) SCC 1,
the expression "ordinary residence" as used in the Representa on of
People Act, 1950 fell for interpreta on. This Court observed:"
243. Lexicon refers to CicuJ v. Suffolk County Council (1980)3 All
England Reporter 689 to denote that the word "ordinarily" is
primarily directed not to dura on but to purpose. In this sense the
ques on is not so much where the person is to be found "ordinar-
ily", in the sense of usually or habitually and with some degree of
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con nuity, but whether the quality of residence is "ordinary" and
general, rather than merely for some special or limited purpose.
244. The words "ordinarily" and "resident" have been used
together in other statutory provisions as well and as per Law
Lexicon they have been construed as not to require that the
person should be one who is always resident or carries on
business in the par cular place. 245. The expression coined by
joining the two words has to be interpreted with reference to the
point of me requisite for the purposes of the provision, in the
case of Sec on 20 of the RP Act. 1950 it being the date on which a
person seeks to be registered as an elector in a par cular
cons tuency.
246. Thus, residence is a concept that may also be transitory.
Even when qualified by the word "ordinarily" the word
"resident" would not result in a construc=on having the effect of
a requirement of the person using a par=cular place for dwelling
always or on permanent uninterrupted basis. Thus understood,
even the requirement of a person being "ordinarily resident" at
a par=cular place is incapable of ensuring nexus between him
and the place in ques=on."
19. Reference may be made to Bhagyalakshmi and Anr. v. K.N.
Narayana Rao, AIR 1983 Madras 9, Aparna Banerjee v. Tapan
Banerjee, AIR 1986 Punjab and Haryana 113, Ram Sarup v. Chimman
Lal and Ors., AIR 1952 Allahabad 79, Smt. Vimla Devi v. Smt. Maya
Devi & Ors., AIR 1981 Rajasthan 211, and in re: Dr. Giovanni Marco
Muzzu and etc. etc., AIR 1983 Bombay 242, in which the High Courts
have dealt with the meaning and purport of the expressions like
'ordinary resident' and 'ordinarily resides' and taken the view that
the ques=on whether one is ordinarily residing at a given place
depends so much on the inten=on to make that place ones ordinary
abode."
AAer above referred to discussion the Hon'ble Supreme Court answered the
ques on in nega ve."
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9.3 AAer observing as above, the Division Bench of this Court in
Rajesh vs. Komal's case (supra), held that it is the Court at the place, where
the child was ordinarily residing, which will have the jurisdic on in the
ma6er.
10. Similarly, J K v. N S (cited supra), a Division Bench of Delhi High
Court was considering the same ques on and it was held as under:-
"71. We would now decide on the issue of interplay between Sec on 9 of
GWA and Sec on 6 of HMGA. Sec on 9 of the GWA vests jurisdic on in a
Court where the minor ordinarily resides. Sec on 6 of HMGA deals with
natural guardians of a Hindu minor and 6 (a), more par cularly, deals with
the custody of a minor who is below 5 years of age and provides that
ordinarily the custody would be with the mother. We have already
quoted Sec on 9 of GWA and Sec on 6(a) of HMGA in the earlier part of the
judgment.
a. In the case of Sarbjit (supra), the Punjab & Haryana High Court had
held that under Sec on 6(1) HMGA, it is mandatory that the custody
of a child below five years of age should be with the mother and the
expression "where the minor ordinarily resides" was held to mean the
residence of the mother and thus the residence of the child would
follow the residence of the mother. However, we find that the said
judgment was categorically dissented to by the High Courts of Andhra
Pradesh, Himachal Pradesh, Gujarat and Rajasthan respec vely in the
cases which have referred to above. What has been held in these
judgments is that Sec on 6(a) of HMGA and Sec on 9 of GWA
operate in different fields. Both are independent of each other.
While Sec on 6 deals with natural guardian of a Hindu Minor, Sec on
9 lays down the rules with respect to territorial jurisdic on of the
Court in which the applica on for custody of the child has to be filed.
The ordinary residence of a child would determine the jurisdic on of
the Court under Sec on 9 and thus, the natural guardianship of a
minor will not determine the jurisdic on 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
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have used this expression in Sec on 9. However, this is not
how Sec on 9 reads. Thus, in our view, HMGA of 1956 does not make
any overriding provision, and therefore, provision of Sec on 6 cannot
be imported to interpret Sec on 9 of GWA..... "
11. Calcu6a High Court in "Smt. Soumi Mukherjee v. Manas
Mukherjee", AIR Online 2019 Cal 431 considered the similar ques on and
held that requirement of the statute is where the ward for the me being
ordinarily resides. It does not require that a father or mother must ordinarily
reside with the ward and that such ques on may be raised at the me of final
hearing of the applica on under Sec on 25 of the said Act. It will be relevant
to reproduce the observa ons made by the Calcu6a High Court in this
regard:-
"29. Mr. Bardhan tries to impress upon this Court that the minor child of the
par es actually does not reside under the care and protec on of his mother,
the pe oner herein, because the pe oner is an employee of Eastern Coal
Fields Limited and works as a nurse at Sanctoria Hospital near Asansol. Since
the pe oner does not ordinarily reside at Makhla in the district of Hooghly
with the minor child, the said residence cannot be treated as ordinary
residence of the minor. I cannot accept such submission made by Mr.
Bardhan. Requirement of the statute is "where the ward for the me being
ordinarily resides". It does not require that the father or mother must
ordinarily reside with the ward. Such ques on may be raised at the me of
final hearing of the applica on under Sec on 25 of the said Act. The
opposite party may raise the ques on, if the said minor normally gets love
and affec on, care and protec on of the mother or not. In the instant
proceeding, we are concerned with the ques on as to whether the minor
ordinarily resides at Makhla in the district of Hooghly or not. In view of
uncontroverted facts and circumstances, irresis ble answer to the ques on
is in the affirma ve."
12. Thus, the legal posi on which emerges is that Sec on 6 (a) of
HMGA and Sec on 9 of GWA operate in different fields, independent of each
other. While Sec on 6 of 1956 Act deals with natural guardian of a Hindu
Minor, Sec on 9 of 1890 Act lays down the rules with respect to territorial
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jurisdic on of the Court, in which the applica on for custody of the child has
to be filed. The ordinary residence of a child would determine the jurisdic on
of the Court under Sec on 9 of 1890 Act and thus, the natural guardianship
of a minor will not determine the jurisdic on 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 Sec on 9 of 1890 Act. However, this is not so and therefore,
provision of Sec on 6 of 1956 Act cannot be imported to interpret Sec on
9 of 1890 Act. It is further clear that jurisdic on of the court to decide
custody ma6er of the child is where the ward/child for the me being
ordinarily resides. It does not require that a father or mother must ordinarily
reside with the ward and that such ques on may be raised at the me of final
hearing of the applica on under Sec on 25 of the said Act.
13. Learned counsel for the respondent-father of the child has
referred to "Akshay Gupta v. Divya & Ors." 2021(1) R.C.R. (Civil) 722,
wherein it was held that even though minor below 05 years may not be in
physical custody with the mother, but her/his custody would be deemed to
be at place where mother is residing for purpose of jurisdic on the Court.
14. I am afraid that the above judgment rendered by the Single
Bench is indirect contrast to the decision of the Division Bench of this Court
in Rajesh's case (supra) and so it does not advance the case of the
respondent. For the same reason, "Tejbir Singh v. Baljit Kaur", Law Finder
Doc ID # 1501557, relied by the counsel for the respondent is not applicable
to the facts of this case.
15. Learned counsel for the respondent has also argued that in
order to adjudge the point of jurisdic on being mixed ques on of law and
fact, it cannot be decided summarily and that while dealing with the
applica on for rejec on of the pe on on the ground of jurisdic on, the
Court has only to consider the averments made in the plaint/pe on as a
whole. Learned counsel for the respondent has also referred to "Dr. Arun
Kant v. Rekha Tanwar", 2017(4) PLR 192.
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Neutral Citation No:=2025:PHHC:000299
CR No.3925 of 2024 (O&M) 2025:PHHC:000299
16. There can be no dispute to the aforesaid proposi on, but in this
case also, it is the admi6ed posi on that ever since June 2021, the child is
residing at Jalandhar at the place of her maternal grandparents. This pe on
was filed in November 2022, i.e. aAer 1-1/2 years from the me, when the
child started residing at Jalandhar. It would be ques on of trial, whether the
child was removed from the custody, as is alleged by the husband; or
whether the wife was compelled to take away the custody of the child to her
parents. The fact remain that the child is residing at Jalandhar with her
maternal grandparents since June, 2021 and is studying there in the school.
The pe on has been filed aAer 1-1/2 year from the date when the child
started residing at Jalandhar. Thus, for all intents and purposes, it is the
courts at Jalandhar, where the child presently ordinarily resides within the
meaning of Sec on 9 of the Guardian and Wards Act, 1890 and therefore,
relying upon the legal posi on as explained in Rajesh's case (supra) and also
by Hon'ble Supreme Court in Rosi Jacob's case (supra), this Court comes to
the conclusion that the impugned order as passed by the trial Court cannot
be sustained. The Court at Chandigarh would not have the jurisdic on to
entertain the pe on.
17. The pe on is allowed accordingly and the impugned order is
hereby set aside.
January 07, 2025 (DEEPAK GUPTA)
Sarita JUDGE
Whether speaking/reasoned? Yes
Whether reportable? Yes
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