Child cannot be deemed to be ordinarily residing with parent having deemed custody: Jammu & Kashmir High Court

The Jammu & Kashmir and Ladakh High Court recently ruled that 'ordinary residence of the minor' in a custody case under the Guardian and Wards Act cannot be equated to the natural guardian's residence just because he or she may be having deemed custody of the minor under personal law.

A Division Bench of Justice Sanjeev Kumar and Justice Rajesh Sekhri made the observation while rejecting a contention that since under Muslim personal law, a mother is deemed to be in custody of a minor girl till she attains puberty, therefore the child should be deemed to be ordinarily residing with her.

The Court in this regard disagreed with a Punjab and Haryana High Court ruling that said even if a minor below five years may not be in physical custody of the mother, the child's custody would be deemed to be at a place where the mother is residing.

It said the Punjab and Haryana High Court had not laid down the correct position of law by failing to distinguish between between 'the ordinary place of residence of a minor' and 'the ordinary place of residence of the applicant (mother) claiming custody'.

"The minor may be in deemed custody of the mother, but for the purpose of determining jurisdiction, it is the ordinary residence of the minor that would be relevant," the Court said.

The Bench was hearing an appeal under Section 19 of the Family Courts Act challenging an order passed by a family court at Jammu which had rejected a mother's plea for custody of her minor daughters, aged 5 years and 4 years, due to lack of jurisdiction.

The woman's husband had objected to the plea as both the minors were with him in Poonch district. The trial court agreed with him, observing that jurisdiction of the District Court for entertaining an application with respect to guardianship of the minor lies with the court having jurisdiction in the place where the minor ordinarily resides.

Considering the case, the High Court at the outset read Section 9 of the Guardian and Wards Act which is the provision on courts competent to pass an order with respect of guardianship of a minor.

"For determination of territorial jurisdiction of the Court under Section 9 of the Act, the expression “where the minor ordinarily resides” is a significant point for consideration. Ordinary residence of a minor is primarily a question of intention which, in turn, is a question of fact," it said.

The Court added Section 9(1) of the Act makes it clear that it is the ordinary place of residence of the minor which determines the jurisdiction of the Court for entertaining an application for guardianship of the minor.

Such jurisdiction cannot be taken away by temporary residence elsewhere on the date of presentation of the application, it emphasised.

Looking at the facts of the present case, the Court found that the children were never residing with the mother at Jammu. It also noted that that it was not even the case that the minors had been taken away by the father.

"In the instant case, the minors never remained in Jammu, nor at any point of time intended to make Jammu as their ordinary abode."

Thus, the plea was rejected and the trial court order was upheld.

Advocate Deepika Pushkar Nath appeared for the appellant.

Advocate HA Siddiqui appeared for the respondent.

[Read Judgment]