Kerala High Court: The question before a 2-Judge Bench comprising of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ., was to determine the jurisdiction of Court, whether Court can entertain a matter related to guardianship of a minor or not where the expression “the place where the minor ordinarily resides” in Section 9(1) of the Guardians and Wards Act, 1890 was to be interpreted.
The facts leading to the instant petition are that the appellant (mother of minor) filed a petition in family court for the custody of her minor child. The respondent (father of the minor) contested the above petition by challenging the jurisdiction of Court on grounds that by virtue of Section 9(1) of the Act Court had no jurisdiction to try this matter as the correct jurisdiction would be where the minor ordinarily resides. Court thereby ordered appellant to file the petition before the court having jurisdiction. This order of the court is challenged before the High Court in the instant petition. The High Court referred case of Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479 where Apex Court held that test to determine the jurisdiction of Court to entertain the application of guardianship of minor is the place of ordinary residence of a minor. Appellant pleaded that under Section 6 of Hindu Minority and Guardianship Act, 1956 custody of a minor who is below five years of age is with the mother and since minor was less than five years old appellant would be the natural guardian of the minor thus her residence would be the ordinary residence of minor. Court rejected this pleading and cleared that it is the ordinary residence of the minor which is going to decide the jurisdiction of the Court and not the residence of natural guardian.
Therefore, Court found no error in the finding of lower court that it had no jurisdiction to try this matter as minor was not ordinarily residing within its jurisdiction. [Divya J. Nair v. S.K. Sreekanth,2018 SCC OnLine Ker 3375, dated 12-09-2018]
