Case Note & Summary
The appellant, Shri Prakash Balkrishna Naidu, filed a petition under Sections 7, 12 and 25 of the Guardians and Wards Act, 1890 before the Family Court No. 2, Nagpur, seeking guardianship, interim protection and custody of his minor daughter aged about 7 years. The Family Court returned the petition on 12.09.2017 holding that it lacked jurisdiction and that the petition should be presented before the District Court, Rajamundry, Andhra Pradesh, where the respondent and the minor were residing at the time of filing. The appellant appealed against this order. The appellant contended that the minor had been residing in Nagpur since birth and was pursuing her education there until she was unilaterally and illegally removed from his custody by the respondent on 21.11.2016. He argued that under Section 9(1) of the Guardians and Wards Act, 1890, jurisdiction is determined by the ordinary residence of the minor, which was Nagpur. The respondent argued that the minor was residing with her in Rajamundry and that the Family Court at Nagpur had no jurisdiction. The court analyzed Section 9(1) of the Act, which provides that the petition shall be presented to the District Court having jurisdiction in the place where the minor ordinarily resides. The court noted that the minor had been living in Nagpur since birth and was removed only a few months before the petition was filed. The court held that the ordinary residence of the minor was Nagpur and that the Family Court at Nagpur had jurisdiction. The court allowed the appeal, set aside the impugned order, and directed the Family Court to proceed with the petition on its merits.
Headnote
A) Family Law - Guardianship - Jurisdiction - Section 9(1) of Guardians and Wards Act, 1890 - The jurisdiction to entertain a guardianship petition is determined by the ordinary residence of the minor at the time of filing the petition. Temporary removal of the minor by one parent does not alter the ordinary place of residence. The Family Court at Nagpur has jurisdiction as the minor had been residing in Nagpur since birth and was only removed unilaterally by the respondent on 21.11.2016. (Paras 4-6)
Issue of Consideration
Whether the Family Court at Nagpur has jurisdiction to try a petition under Sections 7, 12 and 25 of the Guardians and Wards Act, 1890 seeking guardianship and custody of a minor child.
Final Decision
Appeal allowed. Impugned order dated 12.09.2017 passed by Family Court No. 2, Nagpur is quashed and set aside. The Family Court is directed to proceed with the petition on its merits in accordance with law.
Law Points
- Jurisdiction under Section 9(1) of Guardians and Wards Act
- 1890 is determined by ordinary residence of minor
- not by temporary removal by one parent
- Family Court has jurisdiction to try guardianship petition if minor ordinarily resides within its territorial limits
