Jurisdiction | “Ordinarily Resides” U/S 9 Guardians & Wards Act Doesn't Concern Time Spent At A Particular Place But Intention To Reside: MP High Court

The Madhya Pradesh High Court, Indore Bench recently reiterated that the term “ordinarily resides” under Section 9 of the Guardians and Wards Act has to be determined based on the intent of the person concerned residing at a particular place upon reaching there. Section 9 of the Guardians and Wards Act (“the Act”) deals with the jurisdiction of Court with respect to certain applications. The bench comprising Justice Subodh Abhyankar further observed that the term “ordinarily resides” has nothing to do with the time spent at a particular place. Facts of the case were that the Petitioner and the Respondent were married to each other and were living in Nagda. Due to matrimonial discord, the Petitioner left Nagda and took her daughter with her to Nagpur. So as to get the custody of his daughter, the Petitioner moved the lower court under Section 7, 10 and 12 of the Act. In response to the same, the Petitioner moved an application under Section 9 of the Act, contending that the said trial court did not have jurisdiction to entertain the application moved by the Respondent since the minor child was residing in Nagpur. However, after considering the decision of the Apex Court in Ruchi Majoo v. Sanjeev Majoo, the trial court rejected the application moved by the Petitioner. Aggrieved, the Petitioner moved the Court. The Petitioner submitted before the Court that the court below did not properly appreciate the mandate under Section 9 of the Act and the findings of the Supreme Court in Ruchi Majoo case. It was argued that after leaving Nagda, her daughter was admitted to a school at Nagpur. Thus, it was asserted that it cannot be said that the child was making a flying visit to Nagpur for a temporary period. Therefore, it was prayed that the impugned order be set aside. Per contra, the Respondent submitted that prior to the Petitioner moving to Nagpur, their daughter was studying in Nagda. It was submitted that merely because their daughter was enrolled in a school at Nagpur did not mean that she was now ordinarily residing in Nagpur. Examining the submissions of parties and documents on record, the Court found force in the arguments put forth by the Petitioner. Placing reliance on the Ruchi Majoo case, the Court observed- From the aforesaid dictum of the Supreme Court, it is apparent that the word 'ordinarily resides' has nothing to do with the time spent by a persons at a particular place but his intention to reside at a particular place after reaching there is to be seen. And, in the case at hand, the daughter was residing with her father the respondent no.2 until 12.07.2020, on which date, she took off with her mother to Nagpur. In Nagpur, her mother got her admitted in Aaditya Birla Public School, Nagda. It clearly leads to one and the only conclusion that after reaching Nagpur, the minor intended to reside at Nagpur only and in such circumstances, taking note of the decision rendered by the Supreme Court in the said case of Ruchi Mazoo (supra), this court is of the considered opinion that the minor intended to reside at Nagpur only which also gives rise to the presumption that she is the ordinarily residing at Nagpur only and not at Nagda, where her father has filed the application. With the aforesaid observations, the Court set aside the impugned order passed by the trial court. Consequently, the application moved by the Petitioner under Section 9 of the Act was allowed, corollary to which the application moved by the Respondent under Section 7, 10, and 12 before the trial court was dismissed for want of jurisdiction. However, the Respondent was granted liberty to pursue the matter at Nagpur. Accordingly, the petition was allowed. Case Title: Kalyani Saraswat v. Gajendra & Ors.Citation: 2023 LiveLaw (MP) 18Click Here To Read/Download Judgment

Jurisdiction | “Ordinarily Resides” U/S 9 Guardians & Wards Act Doesn't Concern Time Spent At A Particular Place But Intention To Reside: MP High Court

Zeeshan Thomas

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