As per case facts, the appellant challenged the Family Court's dismissal of his Order 7 Rule 11 CPC application, which sought to reject a child custody petition on jurisdictional grounds. ...
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
125+257+258 FAO-878-2025 (O&M)
Date of Decision: 28.04.2025
Rahul Lamba
....Appellant
Versus
Tanya Prashar
....Respondent
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MR. JUSTICE VIKAS SURI
----
Present:Mr. Anil Kumar Garg, Advocate for the appellant.
Mr. Vipin Mahajan, Advocate for the respondent.
****
Sureshwar Thakur, J. (Oral)
1. The instant appeal is directed against the impugned order
rendered on 30.01.2025 by the learned Principal Judge, Family Court,
Gurdaspur, wherebys became dismissed an application filed under Order 7
Rule 11 CPC, thus seeking the rejection of the petition in view of Section 9 of
the Guardian and Wards Act, 1890, (hereinafter in short to be referred as ‘the
Act of 1890’), wherebys became espoused, thus the restoration of the custody
of the minor child to the petitioner from the respondent.
2. Before proceeding to determine the justifiability of the passing of
the impugned order, it is relevant to extract, the provisions as embodied in
Section 9 of the Act of 1890. The said provision becomes extracted
hereinafter:-
“9. Court having jurisdiction to entertain application.—(1) If
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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.”
3. Readings of the provisions embodied in sub-Section 1 of Section
9 of the Act of 1890, unfolds that the test(s) qua assumption of valid
jurisdiction over an application filed by the aggrieved parent, thus, seeking
restoration of custody, viz-a-viz her/him from the opposite party, who has
purported illegal custody over the minor child, thus become(s) rested on an
able interpretation being made, viz-a-viz the legal coinage as carried therein
i.e. “where the minor ordinarily resides”.
4. Though the learned Family Court while making an interpretation
of the supra phrase, appertaining to the assumption of the jurisdictional, over a
petition filed under Section 25 of the Act of 1890, thus made a conclusion in
paragraph 4 thereof, para whereof becomes extracted hereinafter:-
“4. Having heard both the sides, it is not a disputed fact that
the petitioner is the wife of the respondent and has sought the
custody of the minor child from him. As per the date of birth of
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the minor child as mentioned in the petition, the child was born
on 03.08.2019. The present petition has been filed on 19.04.2024.
Meaning thereby, the child whose custody has been sought, was
aged less than 5 years at the time of filing the present petition
and she is in the custody of the respondent/father. It is not a
disputed fact that the child is presently with the
respondent/father. As per law, the petition for custody of the child
under Guardians and Wards Act can be maintained at the place
where the child ordinarily resides. However, Hon’ble Punjab &
Haryana High Court has held in case titled as “Akshay Gupta
Vs. Divya & Ors. 2021 (1) RCR (Civil) 722” that in case of
custody of the child aged less than 5 years, the mother is the
deemed natural guardian of the minor child at the time of
instituting the proceedings. Therefore, the natural custody would
also be presumed to be with the mother, regardless of the place
where the child is actually residing physically at that time.”
5. The said conclusion became rested upon the principle, that since
this Court in a judgment rendered in case “Akshay Gupta Vs. Divya & Ors.
2021 (1) RCR (Civil) 722”, declared, that in case the relevant contest is with
respect to the issue relating to the contentious custody of a child, who is below
5 years, thereupon the mother of the said minor child, rather is deemed to be
the natural guardian of the minor child, thus at the time of initiation of the
relevant proceedings. Consequently therebys, it was further declared, that the
natural custody of the minor child, but would be presumed to be with the
mother, but irrespective of the factum of the actual residence of the minor
child, rather at the relevant time. The said judgment was passed by the learned
Single Bench of this Court.
6. The said judgment fell for consideration before a Division Bench
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of this Court, upon it being seized with case titled as “Rajesh Vs. Komal”.
7. The controversy as setforth in the said decision appertains to the
respondent-wife therein, moving an application cast under Section 25 read
with Section 12 of the Act of 1890, thus before the Principal Judge, Family
Court Kaithal, whereby she claimed the custody of the minor child, whose
custody at the relevant time, was assumed by the respondent therein i.e. the
husband.
8. During the pendency of the said petition, as has happened in the
instant case, the husband instituted an application cast under Order 7 Rule 11
CPC seeking therebys relief for rejecting the plaint supra. It is pertinent to
refer to the submissions addressed then, before this Court by the learned
counsel for the appellant, which dwell upon the factum, thus relating to the
fact that the order of dismissal passed therein, on the application cast under
Order 7 Rule 11 CPC, rather was an infirmly rendered order. The said
argument became premised in the groove, that since the minor son was
actually residing with the respondent-husband at Panchkula, and was also
prosecuting his studies in Manav Mangal School, Sector-11, Panchkula,
therebys since the minor son was with the appellant since 24.11.2022, date
whereof when is contemporaneous to the respondent-wife abandoning the
company of the husband, the appellant in the supra lis. Consequently, it was
argued that the order of dismissal as made on an application cast under Order
7 Rule 11 CPC, was an inapt order.
9. On the other hand, the learned counsel for the respondent therein
i.e. wife, had depended upon the judgments, which became rendered
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respectively, in case titled as “Smt. Sarabjit Vs. Piara Lal and another,
2005(3) RCR (Civil) 213; Amit Kashyap Vs. Pooja, 2017(1) Law Herald and
Akshay Gupta Vs. Divya, 2021(1) RCR (Civil) 722”, whereins, it was stated
that since the interpretation to employed qua the apposite statutory coinage
“ordinarily resides”, thus is qua, upon the minor child being aged 5 years, at
the relevant time, thereupon the mother being deemed to be the natural
guardian of the minor child, but irrespective of the actual residence of the
minor child, at the relevant time. In other words therebys, the mother of the
minor child was deemed to be holding vicarious custody over the minor child.
As such, in the said judgment(s) an exposition of law was made, that the
conferment of natural guardianship over the minor child aged about 5 years,
but viz-a-viz his/her mother, thus extends even to the territory, where the
minor child is actually and physically residing, even though, the actual and
physical residings of the minor child, at the relevant time rather being not with
the mother and may be being with the respondent-husband.
10. This Court in case bearing FAO No.2294 of 2024 t itled as
“Rajesh Vs. Komal”, had incisively analysed the provisions embodied in
Section 9 of the Act of 1890. More importantly, this Court had then made an
objective analysis of the word “where the minor ordinarily resides or to a
District Court having jurisdiction in the place where he has property”, rather
wherefroms, the assumption of valid jurisdiction over a child custody matter,
thus requires becoming tested. Furthermore, this Court then had also made an
incisive analysis of the provisions as embodied in Sections 12, 17 and 25 of
the Act of 1890, provisions whereof become extracted hereinafter:-
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“Section 12. Power to make interlocutory order for production
of minor and interim protection of person and property.—
(1) The Court may direct that the person, if any, having the
custody of the minor shall produce him or cause him to be
produced at such place and time and before such person as it
appoints, and may make such order for the temporary custody
and protection of the person or property of the minor as it thinks
proper.
(2) If the minor is a female who ought not to be compelled to
appear in public, the direction under sub-section (1) for her
production shall require her to be produced in accordance with
the customs and manners of the country.
(3) Nothing in this section shall authorise—
(a) the Court to place a female minor in the temporary
custody of a person claiming to be her guardian on
the ground of his being her husband, unless she is
already in his custody with the consent of her
parents, if any, or
(b) any person to whom the temporary custody and
protection of the property of a minor is entrusted to
dispossess otherwise than by due course of law any
person in possession of any of the property.
Section 17. Matters to be considered by the Court in appointing
guardian.—
(1) In appointing or declaring the guardian of a minor, the
Court shall, subject to the provisions of this section, be guided by
what, consistently with the law to which the minor is subject,
appears in the circumstances to be for the welfare of the minor.
(2) 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, the character and capacity of the proposed guardian and
his nearness of kin to the minor, the wishes, if any, of a deceased
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parent, and any existing or previous relations of the proposed
guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent
preference, the Court may consider that preference.
* * * * *
(5) The Court shall not appoint or declare any person to be a
guardian against his will.
Section 25. Title of guardian to custody of ward.—
(1) If a ward leaves or is removed from the custody of a
guardian of his person, the Court, if it is of 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 arrested and to
be delivered into the custody of the guardian.
(2) For the purpose of arresting the ward, the Court may
exercise the power conferred on a Magistrate of the first class by
section 100 of the 2Code of Criminal Procedure, 1882 (10 of
1882).
(3) The residence of a ward against the will of his guardian
with a person who is not his guardian does not of itself terminate
the guardianship.”
11. Moreover, this Court had also alluded to the definition of “minor”
and “guardian”, as embodied in Sections 4 and 6 of the Hindu Minority and
Guardianship Act, 1956 (hereinafter in short to be referred as ‘the Act of
1956’). The said provisions are extracted hereinafter:.
“Section 4. Definitions.—In this Act,—
(a) “minor” means a person who has not completed the age of
eighteen years;
(b) “guardian” means a person having the care of the person
of a minor or of his property or of both his person and
property, and includes—
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(i) a natural guardian,
(ii) a guardian appointed by the will of the minor’s
father or mother,
(iii) a guardian appointed or declared by a court, and
(iv) a person empowered to act as such by or under any
enactment relating to any Court of wards.
(c) “natural guardian” means any of the guardians mentioned
in section 6.
Section 6. Natural guardians of a Hindu minor.—The natural
guardians 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 after 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;
(b) in the case of an illegitimate boy or an illegitimate
unmarried girl—the mother, and after her, the
father;
(c) in the case of a married girl—the husband: Provided
that no person shall be entitled to act as the natural
guardian of a minor under the provisions of this
section—
(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 ascetic (yati or sanyasi).
Explanation.—In this section, the expressions “father” and
“mother” do not include a step-father and a step-mother.”
12. Consequently, this Court had framed the hereinafter extracted
substantial question of law.
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“8. The question which is to be decided by this Court is
interpretation of the expression “the place where the minor
ordinarily resides” referred to in Section 9(1) of the Guardian
and Wards Act, 1890.”
13. On the above formulated substantial question of law, this Court in
paragraph 15 thereof, after making a conjoint reading of all the supra alluded
to statutory provisions, thus declared that therebys the legislature, had
manifested its intention in Section 9 of the Act of 1890, appertaining to the
contentious jurisdictional aspect,
qua whether the application, rather for
assuming guardianship over the minor child, thus is to be cast before the
District Court, within whose jurisdiction the minor child is actually and
physically residing and or whether the said jurisdictional aspect is not to be
tested in terms of the proviso to Section 6(a) of the Act of 1956.
14. More especially in paragraph 18 thereof, para whereof becomes
extracted hereinafter, while making a connotative evaluation of the expression
“ordinary residence” as used in the Representation of the People Act, 1950,
proceeded to conclude, that the said expression i.e. ordinarily resides, but
denotes that it is primarily directed not to duration but to purpose.
“18. In Ruchi Majoo Vs. Sanjeev Majoo [2011(6) SCC 479],
para 3 of the judgement refers to the facts of the case, which is
reproduced as under:-
“3. The present happens to be one such case where legal
proceedings have engaged the parties in a bitter battle for the
custody of their only child Kush, aged about 11 years born in
America hence a citizen of that country by birth. These
proceedings included an action filed by the father-respondent in
this appeal, before the American Court seeking divorce from the
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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 notice based
on allegations of child abduction 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 petition filed under Sections 7, 8, 10, 11 of the
Guardians And Wards Act granting interim custody of the minor
to her. Aggrieved by the said order the father of the minor filed a
petition under Article 227 of the Constitution of India before the
High Court of Delhi. By the order impugned in this appeal the
High Court allowed that petition, 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
jurisdiction to entertain the same as the minor was not
ordinarily residing at Delhi - a condition precedent for the
Delhi Court to exercise jurisdiction. The High Court further
held that all issues relating 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 parties namely, the
parents of the minor and the minor himself were American
citizens. The High Court buttressed its decision on the principle
of comity of courts and certain observations made by this Court
in some of the decided cases to which we shall presently refer.”
Three questions were framed by the Hon’ble Supreme
Court for determination. In the present case only the first
question would be relevant “whether the High Court was
justified in dismissing the petition for custody of the minor on
the ground that the Court at Delhi had no jurisdiction to
entertain the same”
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Hon’ble Supreme Court in the case of Ruchi Majoo
(supra) while dealing with Section 9 of the Guardian and Wards
Act, 1890, held as under:-
“5. There is no gainsaying that any challenge to the
jurisdiction of the court will have to be seen in the context of the
averments made in the pleadings of the parties and the
requirement of Section 9 of the Guardian and Wards Act, 1890. A
closer look at the pleadings of the parties is, therefore, necessary
before we advert to the legal requirement that must be satisfied
for the Court to exercise its powers under the Act mentioned
above.
* * * * *
13. Section 9 of the Guardian and Wards Act, 1890 makes a
specific provision as regards the jurisdiction of the Court to
entertain a claim for grant of custody of a minor. While Sub-
section (1) of Section 9 identifies the court competent to pass an
order for the custody of the persons of the minor, sub-sections (2)
& (3) thereof deal with courts that can be approached for
guardianship of the property owned by the minor. Section 9(1)
alone is, therefore, relevant for our purpose. It says :
"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."
14. It is evident from a bare reading of the above that the solitary
test for determining the jurisdiction of the court under Section 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
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 the
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jurisdictional facts are admitted it can never be a pure question
of law, capable of being answered without an enquiry into the
factual aspects of the controversy. The factual aspects relevant to
the question of jurisdiction are not admitted in the instant case.
There are serious disputes on those aspects to which we shall
presently refer. We may before doing so examine the true purpose
of the expression 'ordinarily resident' appearing in Section 9(1)
(supra). This expression has been used in different contexts and
statutes and has often come up for interpretation. Since liberal
interpretation is the first and the foremost rule of interpretation 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 Dictionary as follows :
"Ordinary (Adj.) : Regular; usual; normal; common; often
recurring; according to established order; settled;
customary; reasonable; not characterised by peculiar or
unusual circumstances; belonging to, exercised by, or
characteristic of, the normal or average individual."
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 settle oneself or a thing in a place, to be
stationed, to remain or stay, to dwell permanently or
continuously, to have a settled abode for a time, to have one's
residence or domicile; specifically, 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 dictionary also the word 'reside' finds a similar
meaning, which may be gainfully extracted :
"1. To dwell for a considerable time; to make one's home;
live. 2. To exist as an attribute or quality with in. 3. To be
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vested: with in"
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 education and were
getting their education in England at the University of Oxford. A
case was, however, filed in the district Court of Chingleput for
the custody where according to the plaintiff the minors had
permanently resided. Repeating the plea that the Chingleput
Court was competent to entertain the application their Lordships
of the Privy Council observed :
"The district court in which the suit was instituted had no
jurisdiction over the infants except such jurisdiction as was
conferred by the Guardians and Wards Act 1890. By the
ninth Section of that Act the jurisdiction 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 left India with a view to
being educated in England and going to University had
acquired their ordinary 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
Section 488 Criminal Procedure Code and the question of
jurisdiction of the Court to entertain a petition for maintenance.
The Court noticed 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 particular place. The legal position 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 construction placed
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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 particular 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
Representation of People Act, 1950 fell for interpretation. This
Court observed : "
243. Lexicon refers to Cicutti v. Suffolk County Council
(1980)3 All England Reporter 689 to denote that the word
"ordinarily" is primarily directed not to duration but to
purpose. In this sense the question is not so much where
the person is to be found "ordinarily", in the sense of
usually or habitually and with some degree of continuity,
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 particular place.
245. The expression coined by joining the two words has to
be interpreted with reference to the point of time requisite
for the purposes of the provision, in the case of Section 20
of the RP Act, 1950 it being the date on which a person
seeks to be registered as an elector in a particular
constituency.
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 construction
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having the effect of a requirement of the person using a
particular place for dwelling always or on permanent
uninterrupted basis. Thus understood, even the
requirement of a person being "ordinarily resident" at a
particular place is incapable of ensuring nexus between
him and the place in question."
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 question whether
one is ordinarily residing at a given place depends so much on
the intention to make that place ones’ ordinary abode.”
15. Further, it is also declared therein, that in the said sense the
question is not so much where the person is to be found “ordinarily”, in the
sense of usually or habitually and with some degree of continuity, but whether
the quality of residence is “ordinary” and general, rather than merely for the
some special or limited purpose. Moreover, “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 at the particular place. The
expression coined by joining the two words, has to be interpreted with
reference, to the point of time requisite for the purposes of the provisions, as cast
under Section 20 of the Representation of the People Act, 1950, i.e. the
date
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whereons any person seeks to be registered as an elector in a particular
constituency. Therefore, it was concluded that residence is a concept that may
also be transitory. Even when qualified by the word "ordinarily" the word
"resident" would not result in a construction, rather having the effect, thus
enjoining the requirement qua the person always using a particular place for
dwelling or using it on a permanent or an uninterrupted basis. Thus
understood, even the requirement of a person being "ordinarily resident" at a
particular place is incapable of ensuring nexus between him and the place in
question.
16. In consequence therebys, it was concluded that the word/coinage
“ordinarily resident”, on well interpretation thereofs, becoming made therebys,
there would be valid conferment of adjudicatory jurisdiction upon the learned
Family Court concerned, to receive and to make an adjudication upon an
application relating to the custody of a minor child. Nonetheless, the supra
conjunct does not require, the actual/physical residing of the minor child, thus
being at a place where the parent resides alongwith him or her, but as a further
necessity, there has to be prima facie a sense of permanence of habitation of
the minor child. In other words, the said coinage may not have an implication,
that therebys the person concerned, is required to be holding a permanent
residence, thus on an uninterrupted basis. Tritely, thus for making any
pragmatic valid interpretation thereofs, the relevant point of time, but is of
conspicuous interpretation.
17. In the said judgment i.e. Ruchi Majoo’s case, all the supra made
interpretations are purveyed to a similar besides an analogous to the instant
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case, thus the expression “ordinarily resides”. It is from the supra
interpretation(s), that the jurisdictional competence of the Family Court, both
to entertain and to decide the child custody application, rather is to be gauged.
Therefore, in the judgment delivered in Ruchi Majoo’s case, thus on an
interpretation becoming afforded to the statutory expression supra, which is
analogous to the statutory expression carried in the instant case i.e. “ordinarily
resides”, that inferences became drawn (a) that the person concerned holding a
permanent residence, thus on an interrupted basis at the place concerned,
rather for therebys, their occurring conferment of adjudicatory jurisdiction (b)
the concept/coinage “ordinarily resides”, rather is a concept that may also be
transitory, besides the fact whether the quality of residence either is ordinary
or general, rather than being merely for some special or limited purpose, but is
of grave importance, more especially, the impartings of interpretations thereto,
but is dependent on the intention to make the place “ones ordinary abode”.
18. The said analogical applications, thus to the facts at hand, though
is both apt and tenable. Furthermore, for applying the said interpretation onto
statutes carrying a similar thereto coinage. Consequently, for the supra
interpretation becoming employed, thus to a similar phrase, cast in the instant
statute i.e. the coinage “ordinarily resident”, insofar as, the same requiring, an
interpretation thereofs being made viz-a-viz the determination of the
adjudicatory jurisdiction of a Family Court concerned, upon child custody
application, thus this Court considers that the coinage “ordinarily resident”,
does require, that a more incisive analysis be made but bearing in mind the
relevant facts attached theretos.
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19. The importance of evaluating such attendant facts, as pertinent to
the minor child being declared to be ordinarily resident, thus are:
a) A minor child having no independent volition, and or, but
having a limited volition to choose a place of his residing
with one or the other parent;
b) The natural corollary thereof being that a child being
amenable to be removed by one of his parents from the
custody of the other parent, which whom he was earlier to
his being removed, rather was residing.
c) As such therebys, a minor child, thus cannot be construed
to be holding at any place concerned, thus at the relevant
time, rather any permanent residence nor therebys, a minor
child can be stated to be ordinarily resident, at any place
concerned, especially when he/she is prima facie deprived
of exercising an independent volition, rather is prima facie
under the dominant control of the parent, who assumes
custody over him/her.
20. Moreovers, the manner of removals of the apposite custody, but
is also of grave importance inasmuch as, appertaining to the removal of the
child from the custody of the parent with whom he or she rather was ordinarily
residing, especially when removals of custody of a minor child aged below 5
years, if is made, through force or compulsion and or is made, rather without
the consent or in the absence of the parent, thus with whom the minor child
was earlier residing at the relevant time. Consequently, the compulsive
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manners qua removal of a minor child from the custody of the parent with
whom he/she was earlier residing, especially when then a minor child, thus
has no independent volition, but thus to the considered mind of this Court, has
a material bearing, upon the conferment of adjudicatory jurisdiction upon the
Family Court concerned, where before whom, an application is laid by the
parent, who compulsively acquires custody of a minor child, and the
conferment of adjudicatory jurisdiction over the Family Court concerned, but
is contended to be a lawful conferment, on the ground of actual physical
residence of the minor child, thus in contemporaneity to the filing of the
application.
21. If so, the facts as averred in paragraphs 3 and 4 of the application
filed under Section 12 of the Act of 1980, and in paragraph 7 of the
application filed under Section 25 read with Sections 7 and 8 of the Act of
1980, do assume grave importance. The said paragraphs becomes extracted
hereinafter:-
“3. That, the respondent has taken the minor daughter
with him after locking his rental accommodation at Chandigarh.
When, he took minor with him, she was just 4 years old. The
respondent is not allowing the applicant to meet with the minor
since 13.11.2023. The minor is fully depended upon the applicant
as she is only 5 years old. The respondent having knowledge that
the applicant is having great love and affection towards the
minor and he has kept the minor in his illegal custody against the
wishes and desire of the applicant and the minor just to
pressurize the applicant. Moreover, the applicant observed in
Mediation Proceedings that the minor was emotionally distressed
and threatened as the minor continuously requesting the
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applicant to take her along with her.
4. That, the applicant also approached the Child
Welfare Committee on 10.01.2024 followed by multiple
reminders till July 2024 to know the whereabouts of the minor
daughter Manasvi. Then, the CWC has also sent representation
to the SSP, Pathankot.
7. That, on 29.12.2022 with intervention of
respectable petitioner and respondent and his family members
agreed to allow the petitioner to reside at her matrimonial home
and on 12.01.2023 compromise was executed between petitioner
and respondent in the light of compromise petitioner and
respondent started residing separately from the family members
of respondent at rental accommodation at Sector 44,
Chandigarh, but even after compromise respondent started
harassing the petitioner again for not fulfilling demand of more
dowry. It is worthwhile to mention here that parents of
respondent used to instigate the respondent against
applicant/petitioner. The respondent started beating the
petitioner whenever she tried to raise an objection to his undue
demand of more dowry and cash then respondent started
threatening petitioner to leave her matrimonial home.”
22. In the face of the grave importance being assumed, rather by the
said averments, whereupons, thus they did require a pointed rebuttal theretos,
thus becoming rendered whereafter, issues were to be struck thereovers by the
learned Family Court concerned, besides subsequent thereto, necessarily
cogent evidence thereons was required to be adduced by the litigant
whereupons, whom the evidence adducing discharging of onus, rather became
cast.
23. Resultantly, without awaiting for the entire supra process
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becoming undertaken or being undergone, yet the application under Order 7
Rule 11 CPC seeking rejection of the petition, rather became filed. Though
therebys, prima facie the said application was prematurely filed, as therebys
the said application derogates from the settled position of law, thus governing
the makings of valid adjudication(s) upon an application filed under Order 7
Rule 11 CPC, exposition of law whereofs clearly state, that until and unless at
the very threshold, there is clear cogent categorical evidence suggestive, that
the institution of the apposite application before the learned Court concerned,
is barred by law or to the extent, that the Court wherebefore whom, such an
application is filed, has evidently at the very threshold, thus no jurisdiction to
make an adjudication thereovers, that only thereupons, an application under
Order 7 Rule 11 CPC may be considered to be allowed.
24. Be that as it may in the instant case, thus with the said averments
being cast in the apposite application, and which required theirs being proven,
therebys, at this stage, it could not have been stated, as aptly done by the
learned Trial Judge concerned, that there was complete want of adjudicatory
jurisdiction over the relevant application.
25. After finding no merits in the instant appeal, the same is
dismissed.
26. The learned Family Court, concerned, is directed to forthwith
proceed with the trial of the instant petition. The trial of the instant petition be
ensured to be concluded within six months from today. In case, any
application is filed by any of the contesting litigants before the learned Family
Court concerned, seeking therebys the conferment of visitation rights or
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interim custody, over the minor child, thereupon the said application shall be
lawfully considered and shall also be ensured to be most expeditiously
decided. It is further clarified that in making the apposite adjudication, the
prima donna requirement, of the welfare of the minor child being keenly
discerned from the material adduced on record, rather shall be throughout
borne in mind. The gravity qua primacy viz-a-viz the supra requirement being
borne in mind, ensues from the stark factum, that the Family Court is required
to be functioning as parens patriae towards the minor child.
27. Pending applications, if any, also stand disposed of.
(SURESHWAR THAKUR)
JUDGE
(VIKAS SURI)
April 28, 2025 JUDGE
Varinder
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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