The Punjab & Haryana High Court has ruled that the “ordinary residence of a child” determines which court has jurisdiction in custody cases under the Guardianship & Wards Act, not the child’s “natural guardianship.” The court emphasized these two concepts cannot be mixed.
Under Section 9 of the GWA, custody applications must be filed where the minor ordinarily resides. Meanwhile, Section 6 of the Hindu Minority and Guardianship Act names the father as guardian for unmarried minors, followed by the mother, with children under five typically staying with mothers.
Justice Deepak Gupta clarified that Section 6(a) of HMGA and Section 9 of GWA operate independently. While HMGA addresses natural guardianship of Hindu minors, GWA focuses on court jurisdiction for custody cases based on the child’s ordinary residence.
“The legislature could have specified mother’s residence as determining the child’s ordinary residence in Section 9 of 1890 Act if that was intended. However, this wasn’t done, so Section 6 of 1956 Act cannot be used to interpret Section 9 of 1890 Act,” the court noted.
“The court’s jurisdiction depends solely on where the child ordinarily resides. Neither parent needs to reside with the ward – such matters can be addressed during final hearings under Section 25,” the court added.
In this case, the father sought custody of their daughter under Section 6 HMGA and GWA before a Guardian Judge in Chandigarh. The mother challenged the court’s jurisdiction since the child lived in Jalandhar. The Civil Judge rejected her plea, noting both parents lived in Chandigarh and that a child under 5 years should be with the mother, making Chandigarh the jurisdiction. The mother then approached the high court.
The court emphasized that under Section 9 of GWA, jurisdiction lies where the minor physically resides, not as per Section 6(a) of HMGA. Regarding Section 6 HMGA, the court explained that “shall ordinarily be with the mother” considers that children under 5 need maternal care and comfort, focusing on the child’s welfare rather than making it mandatory.
The court clarified that custody may not be granted to a mother who is unchaste, insane, immoral, insensitive, estranged from her husband, or suffering from disabilities affecting childcare. This shows Section 6(a) of HMGA is discretionary based on child welfare.
The judge noted that if Section 6 HMGA mandated mother’s guardianship for children under 5, it would make Sections 12, 17, and 25 of GWA redundant for such cases.
The court concluded that jurisdiction lies where the child ordinarily resides. In this case, since June 2021, the child had been living and studying in Jalandhar with maternal grandparents. Whether the child was wrongfully removed or the wife was forced to leave would be determined at trial. Since the father filed his plea in November 2022, 1.5 years after the child began living in Jalandhar, the court set aside the trial court’s order.
Facts of the Case
- A minor child was born on May 18, 2019.
- The parents of the child are embroiled in custody disputes.
- The mother contends that the child has been residing with her maternal grandparents in Jalandhar since June 12, 2021, where the child is also attending school.
- The father argued that both parents reside in Chandigarh and that the child’s removal to Jalandhar should not oust the jurisdiction of the Chandigarh Court.
- The learned Civil Judge in Chandigarh initially held that jurisdiction lies with Chandigarh, as both parents reside there and custody of a child under five years ordinarily lies with the mother.
Legal Provisions Involved in the Case
- Section 9, Guardian and Wards Act, 1890: Jurisdiction based on the “ordinary residence” of the minor.
- Section 6(a), Hindu Minority and Guardianship Act, 1956: Custody of children below five years is ordinarily with the mother.
- Judicial precedents from cases such as:
> Ruchi Majoo v. Sanjeev Majoo (2011)
> Rajesh v. Komal (2024)
> Rosi Jacob v. Jacob A. Chakramakkal (1973)
Arguments by the Petitioner and the Respondent
Petitioner (Mother and Grandparents)
- Claimed that the child’s “ordinary residence” is in Jalandhar due to continuous residence there since June 2021.
- Referred to Section 9 of the Guardian and Wards Act, emphasizing jurisdiction based on where the child “ordinarily resides.”
- Cited precedents where jurisdiction was determined by the child’s current living arrangements.
Respondent (Father)
- Asserted that both parents reside in Chandigarh, making it the appropriate jurisdiction.
- Contended that the child’s removal to Jalandhar did not alter the child’s “ordinary residence.”
- Highlighted the ongoing litigation between the parties in Chandigarh, making it convenient for the court to exercise jurisdiction.
Court’s Observation
- The court analyzed Section 9 of the Guardian and Wards Act, 1890 and concluded:
- “Ordinary residence” is determined by where the child is physically and regularly living, not where the parents reside.
- “The ordinary residence of a child would determine the jurisdiction of the Court… the natural guardianship does not decide jurisdiction.”
- The court emphasized the precedence of welfare:
- Quoting Rosi Jacob v. Jacob A. Chakramakkal, it stated, “The object of this provision is to ensure the welfare of the minor child.”
- “Jurisdiction must align with the current residence of the child for effective adjudication.”
- Setting aside the Chandigarh court’s jurisdiction, the judgment declared:
- “For all intents and purposes, it is the courts at Jalandhar where the child presently ordinarily resides within the meaning of Section 9 of the Guardian and Wards Act, 1890.”
Comments from the Author of the Website
The mother’s unilateral relocation of the child to Jalandhar raises concerns about how such actions might sideline fathers’ roles and influence jurisdictional outcomes.
The judgment, while rooted in child welfare, highlights systemic challenges fathers face in custody battles, particularly under laws and societal norms that may favor mothers.
Read Complete Judgement Here
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