The Punjab and Haryana High Court has clarified that a child's "ordinary residence" under Section 9 of the Guardian and Wards Act, 1890 does not have to be a permanent or uninterrupted residence. The Court explained that the term “ordinarily resides” is based on factual circumstances and does not require permanence.
According to Section 9 of the Act, an application for guardianship of a minor must be filed in the District Court where the child ordinarily resides. This provision plays a crucial role in determining which court has the authority to hear custody disputes.
“The expression ‘ordinarily resides’ does not mean the child must have a permanent home at that place. It can be transitory. What matters is whether the child is generally and regularly living there, even if temporarily,”
– Justices Sureshwar Thakur and Vikas Suri
The Court highlighted important points to understand the concept of ordinary residence for a minor:
- A minor child usually does not have full freedom to decide where to live.
- A parent may remove the child from the custody of the other, altering the child’s place of stay.
- Therefore, a child may not have a permanent residence in the true sense and cannot be treated as ordinarily residing in one fixed place if he/she is under the influence or control of one parent.
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“A child under the dominant control of one parent cannot be presumed to have chosen a residence. Hence, their place of stay at any given time must be examined with care,”
– Punjab & Haryana High Court
This observation came during the hearing of an appeal challenging a Family Court’s order. The appellant had filed an application under Order 7 Rule 11 CPC, requesting rejection of a custody petition on the grounds that the Family Court lacked jurisdiction under Section 9 of the Act.
The main dispute involved whether the Family Court had the proper authority, based on the child’s ordinary residence at the time of filing. The Court reviewed the statutory framework and confirmed that Section 9 determines jurisdiction for guardianship applications, depending on the actual living situation of the child.
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The appellant also raised the issue of Section 6(a) of the Hindu Minority and Guardianship Act, but the Court focused on the factual context to define jurisdiction, rather than strictly applying legal definitions.
“Whether the court has jurisdiction depends on the real and practical facts of the child’s stay—not just legal assumptions,”
– Punjab & Haryana High Court
The High Court ruled that the husband’s application under Order 7 Rule 11 CPC was premature and lacked sufficient legal basis. Since the issue of jurisdiction required factual evidence, the Trial Court had correctly dismissed the application.
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As a result, the appeal was dismissed, and the Family Court was directed to proceed with the custody case and complete the trial within six months.
Counsel:
- Mr. Anil Kumar Garg, Advocate for the appellant
- Mr. Vipin Mahajan, Advocate for the respondent
“The legal issue of a child’s ordinary residence must be tested on facts. Courts cannot reject cases merely on technical terms without assessing evidence,”
– High Court Observation
Title: RXXXXX v. XXXX
FAO-878-2025 (O&M)
