Case Note & Summary
Background: The High Court of Karnataka heard a Miscellaneous First Appeal arising from an order of the Family Court, Bengaluru, which returned a guardianship petition for lack of territorial jurisdiction. The dispute concerned custody of a minor child aged 4 years 10 months between the mother and father. The court at the outset recognized that the deepest consideration for the welfare of the child was paramount. Facts: The mother and father were married on 06.07.2018 and had two sons; the elder was about six years old, and the younger was born on 11.10.2021. The mother resided at Bangalore with the children, while the father resided at Ilkal Taluk, Bagalkot District. On 03.09.2023, the father visited the mother's residence and took the younger child, promising to return him within fifteen days, but did not. The mother approached the Child Welfare Committee, National Commission for Women, and Women Police Station, Basavanagudi; issued legal notice dated 09.05.2024; and 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, Bangalore. She also filed W.P.(H.C.) No.94 of 2024 for custody, which did not result in restoration and directed her to work out her remedy before the appropriate court. Thereafter, she filed G & WC No.18 of 2025 under Section 7 of the Guardians and Wards Act, 1890, read with the Family Courts Act, 1984 and Section 151 CPC, seeking custody and interim custody under Section 12 read with Section 26 of the Hindu Marriage Act and Section 151 CPC. The father contested jurisdiction, contending the child ordinarily resided with him at Ilkal and that Section 9 governed. The Family Court by order dated 06.01.2026 returned the petition, holding the child was residing with the father and that ordinary residence was not Bangalore; it observed the allegation of forcible removal was not established at the initial stage and that any order by a court lacking jurisdiction would be a nullity. Legal Issues: The core question was whether the Family Court was justified in returning the petition solely on the ground that the child was physically residing with the father outside Bangalore, without considering that the child ordinarily resided with the mother at Bangalore and the circumstances of removal. Arguments: The mother contended that the child ordinarily resided with her at Bangalore; the father had taken the child away under a pretext, and such removal could not change ordinary residence to defeat jurisdiction. She relied on pending matrimonial proceedings at Bangalore and the paramount welfare of the child. The father argued that the child currently resided with him at Ilkal; Section 9 required the court of ordinary residence; and custody could not be termed unlawful merely on allegation. Court's Analysis: The High Court observed that Section 9 uses the expression 'ordinarily resides', not the place where the minor happens to be found or is kept on the date of filing. The ordinary residence of a minor must be determined from the facts and circumstances of each case, including the circumstances in which the child was residing at the earlier place and how the child came to be removed. The court reasoned that subsequent removal by the father could not, by itself, change the ordinary residence so as to defeat the jurisdiction of the court which otherwise had jurisdiction. The Family Court's approach of focusing on the child's current physical location was therefore considered erroneous; the welfare and earlier residence of the child with the mother were relevant factors that could not be ignored at the threshold. Decision: The available extracted text does not set out the final operative order. However, the High Court's reasoning indicated that the Family Court's order returning the petition was unsustainable and required reconsideration of jurisdiction with regard to ordinary residence and the welfare of the child.
Headnote
A) Family Law - Guardianship and Custody - Territorial Jurisdiction - Guardians and Wards Act, 1890, Sections 7 and 9 - The Family Court returned mother's guardianship petition on ground that child was residing with father outside Bangalore, without examining whether child's ordinary residence had changed by removal. The High Court observed that 'ordinarily resides' in Section 9 refers to habitual residence, not mere physical presence at filing, and the circumstances of the child's removal must be considered. Held that mere removal by father cannot defeat the jurisdiction of the court where child ordinarily resided with mother (Paras 7-9, 13-14). B) Family Law - Child Custody - Welfare Principle - Guardians and Wards Act, 1890, Section 12; Hindu Marriage Act, 1955, Section 26; Code of Civil Procedure, 1908, Section 151 - In proceedings for custody, the paramount consideration is the welfare and best interests of the minor, not the technical plea of jurisdiction based on current physical location. The mother contended that the child of tender years was in her care, she had approached multiple authorities, and matrimonial proceedings were pending before the same Family Court. The High Court emphasized that these circumstances, including the child's earlier residence and welfare, should be considered before returning the petition at the threshold (Paras 1, 10.3, 12, 14).
Issue of Consideration
Whether the Family Court was justified in returning the mother's petition for custody on the ground that the child was residing with the father outside Bangalore, without considering that the child ordinarily resided with the mother at Bangalore and the circumstances of removal.
Law Points
- In proceedings under Section 9 of Guardians and Wards Act
- 1890
- 'ordinarily resides' means habitual residence of the minor and not the place where the child happens to be found on the date of filing
- mere removal of child by one parent cannot alter ordinary residence to defeat jurisdiction
- welfare of child is paramount consideration
- court must consider circumstances of removal and earlier residence.
