Case Note & Summary
This miscellaneous first appeal arose from an order dated 06.01.2026 passed by the III Additional Principal Judge, Family Court, Bengaluru in G & WC No.18 of 2025. The appellant was the mother of a minor son aged about four years ten months at the time of appeal. The respondent was the father. The parties were married on 06.07.2018 and had two sons; the younger son, born on 11.10.2021, was the subject of the custody dispute. The mother claimed that she was residing in Bengaluru with the children while the father was at Ilkal Taluk, Bagalkot District. On 03.09.2023, the father allegedly took the younger child from the mother's Bengaluru residence saying he would return him within fifteen days, but failed to do so. The mother approached the Child Welfare Committee, National Commission for Women, and the Women Police Station, Basavanagudi, issued a legal notice dated 09.05.2024, and filed W.P.(H.C.) No.94 of 2024 seeking custody, but custody was not restored and she was directed to approach the appropriate court. She also filed M.C.No.3149 of 2024 for divorce and Crl.Misc.No.976 of 2025 for maintenance, both pending before the III Additional Principal Family Court, Bengaluru. Thereafter, she instituted G & WC No.18 of 2025 under Section 7 of the Guardians and Wards Act, 1890, read with provisions of the Family Courts Act, 1984 and Section 151 CPC, seeking custody of the younger son, along with an application under Section 12 of the Guardians and Wards Act read with Section 26 of the Hindu Marriage Act and Section 151 CPC for interim custody. The father objected to jurisdiction, contending the child was residing with him in Bagalkot and therefore under Section 9 of the Guardians and Wards Act the court where the minor ordinarily resided alone had jurisdiction. The Family Court framed a point on ordinary residence and returned the petition, holding it had no jurisdiction because the father had taken the child to Bagalkot and custody with father could not be treated as unlawful at that stage. Aggrieved, the mother filed MFA No.1492 of 2026 under Section 47 of Guardians and Wards Act, Section 19(1) of Family Courts Act, Order XLIII Rule 1(A) read with Section 151 CPC. The High Court framed the issue whether the Family Court was justified in returning the petition solely because the child was with father in Bagalkot without considering the child's ordinary residence with mother in Bengaluru. The court observed that Section 9 used 'ordinarily resides' and not the place where the minor happens to be found or kept; ordinary residence is to be determined on facts including duration and circumstances of removal. It noted the child was residing with mother at Bengaluru and was subsequently taken away by father; such removal could not by itself change ordinary residence so as to defeat jurisdiction. The extracted text ends at paragraph 15 without recording the final operative direction.
Headnote
A) Family Law - Guardianship and Custody - Jurisdiction - Section 9 of Guardians and Wards Act, 1890 - The Family Court returned the mother's custody petition holding that the minor child ordinarily resided with the father at Ilkal Taluk, Bagalkot District because the father had taken the child there. The High Court observed that the statutory expression 'ordinarily resides' must be distinguished from the place where the child happens to be found or kept on the petition date. The court reasoned that mere removal of the child from Bangalore by the father could not, by itself, alter the ordinary residence so as to defeat the jurisdiction of the court at Bangalore. Held that the Family Court's approach required reconsideration of the circumstances of removal and the child's earlier residence (Paras 12-14).
Issue of Consideration
Whether the Family Court was justified in returning the mother's custody petition on the ground of lack of territorial jurisdiction without considering that the child was ordinarily residing with the mother at Bangalore, despite being later taken to Bagalkot by the father.
Law Points
- Section 9 of Guardians and Wards Act
- 1890 uses 'ordinarily resides' not 'presently resides'
- ordinary residence determined by facts including duration and circumstances of removal
- mere removal by father cannot change ordinary residence to defeat jurisdiction
- welfare of child is paramount in custody matters
Case Details
2026 LawText (KAR) (08) 44
Miscellaneous First Appeal No. 1492 of 2026 (FC)
D K Singh, H. Shanthi Bhushan
Naresh Kumar Jain, Shivananda Reddy R V
Sri. Prashanth D Veerapur
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Nature of Litigation
Miscellaneous first appeal against a Family Court order returning a custody petition for lack of territorial jurisdiction.
Remedy Sought
Appellant-mother sought setting aside of the Family Court order dated 06.01.2026 and a direction that the Family Court at Bengaluru entertain the custody petition.
Filing Reason
Family Court returned the petition under Section 9 of the Guardians and Wards Act holding that the minor child ordinarily resided with the father at Ilkal Taluk, Bagalkot District, despite the child's earlier residence with the mother in Bangalore.
Previous Decisions
Family Court in G & WC No.18/2025 returned the petition to the petitioner to file before the proper court. Earlier W.P.(H.C.) No.94 of 2024 did not result in restoration of custody and directed the petitioner to work out remedy before the appropriate court; M.C.No.3149 of 2024 and Crl.Misc.No.976 of 2025 were pending before the III Additional Principal Family Court, Bangalore.
Issues
Whether the Family Court was justified in returning the mother's custody petition on the ground that the child was residing with the father in Bagalkot, without considering that the child was ordinarily residing with the mother at Bangalore.
Submissions/Arguments
Appellant contended that the child was ordinarily residing with her in Bangalore and was taken away by the respondent; the subsequent residence with the father cannot change ordinary residence to defeat jurisdiction; the respondent cannot rely on his own act of taking the child away; matrimonial proceedings were already pending in Bangalore; the paramount consideration is the welfare and best interests of the child.
Respondent contended that the minor child was presently residing with him at Ilkal Taluk, Bagalkot District; under Section 9 of the Guardians and Wards Act, the court where the minor ordinarily resides alone has jurisdiction; the custody of the child with the respondent could not be termed unlawful merely on the basis of the mother's allegations; the Family Court was justified in returning the petition for presentation before the appropriate court.
Ratio Decidendi
The expression 'ordinarily resides' in Section 9 of the Guardians and Wards Act, 1890 means the place where the minor regularly or normally resides, not where the minor is temporarily found or kept on the date of filing; a parent cannot defeat jurisdiction by unilaterally removing the child.
Judgment Excerpts
The expression used in the provision is “ordinarily resides” and not the place where the minor happens to be found or is kept on the date on which the petition is presented.
Such subsequent removal cannot, by itself, result in the ordinary residence of the child being changed so as to defeat the jurisdiction of the Court which otherwise had jurisdiction to consider the question of custody.
Procedural History
Parties married on 06.07.2018; two sons born, younger son born on 11.10.2021. On 03.09.2023, father took the younger child from mother's Bangalore residence promising to return within fifteen days but did not return. Mother approached Child Welfare Committee, National Commission for Women, Women Police Station Basavanagudi, and issued legal notice dated 09.05.2024. Mother filed W.P.(H.C.) No.94 of 2024 for custody; custody was not restored and she was directed to approach the appropriate court. Mother filed M.C.No.3149 of 2024 for divorce and Crl.Misc.No.976 of 2025 for maintenance before III Additional Principal Family Court, Bangalore. Mother filed G & WC No.18/2025 under Section 7 of Guardians and Wards Act, 1890 read with Family Courts Act and CPC, seeking custody and interim custody. Family Court returned the petition on 06.01.2026 holding no jurisdiction as child was with father in Bagalkot. Present MFA No.1492 of 2026 filed under Section 47 of Guardians and Wards Act, Section 19(1) of Family Courts Act, Order XLIII Rule 1(A) read with Section 151 CPC.
Acts & Sections
- Guardians and Wards Act, 1890: Section 7, Section 9, Section 12, Section 47
- Family Courts Act, 1984: Section 19(1)
- Code of Civil Procedure, 1908: Section 151, Order XLIII Rule 1(A)
- Hindu Marriage Act, 1955: Section 26
