Source: Allahabad High Court

Why in News?

As per the recent ruling by the Allahabad High Court, under Section 9(1) of the Guardians and Wards Act 1890, the concept of "ordinary residence" in relation to a minor does not include temporary living arrangements, even if the minor has temporarily relocated for educational reasons at the time of the custody petition under the Act.

• Section 9(1) of the Guardians and Wards Act 1890 specifies that petitions regarding the guardianship of a minor's person must be filed in the District Court having authority over the area where the minor typically resides.
• Sub-sections (2) and (3) of Section 9 define the jurisdiction in cases concerning the minor's property.

What was the Background of Dheeraj v. Smt. Chetna Goswami?

• Respondent-mother filed a custody petition under section 25 of the Guardians and Wards Act.
• Appellant-father, learning of the case through a newspaper notice, sought dismissal citing lack of jurisdiction in the Family Court at Ghaziabad, as the minor was studying in Bhiwani, Haryana.
• Appellant's application was rejected, affirming Family Court jurisdiction based on the father's ordinary residence in Ghaziabad and Section 9(1) of the Act.
• Petitioner's counsel argued the Family Court erred in disregarding the minor's residence in Haryana, stating that the determination of where the minor "ordinarily resides" required an inquiry into both fact and law.
• The appeal filed by the father was dismissed.

What were the Court’s Observations?

• Justice Vivek Kumar Birla and Justice Syed Qamar Hasan Rizvi held a bare perusal of section 9 (1) of the Guardians and Wards Act, 1890 makes it apparent that it is the ordinary place of residence of a 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 the petition's presentation. The fact that the minor is found actually residing at the place when the application for the guardianship of the minor is made does not determine the jurisdiction of the Court.
• The Allahabad High Court ruled that under Section 9(1) of the Guardians and Wards Act 1890, a minor's "ordinary residence" does not include temporary residences, even for educational purposes, when filing for custody.
• The Court stated that determining the ordinary residence of the ward involves assessing intention, constituting a factual inquiry.
• The Court ruled that a temporary residence at the time of filing a petition under the Act would not be regarded as the place where the minor ordinarily resides.
• It emphasized that resolving the legal aspect of "where the minor ordinarily resides" necessitates an inquiry into the factual circumstances of the case unless jurisdictional facts are conceded.

What are the Guardians and Wards Act, 1890?

• About
  • In India minors, due to their physical and mental immaturity, are unable to act independently, necessitating legislative provisions for guardianship.
  • Legislation pertaining to guardianship and wards in India
    • The Hindu Minority and Guardianship Act, 1956,
    • The Guardianship and Wards Act, 1890,
  • Laws derived from Islamic, Parsi, and Christian traditions.
  • The Guardians and Wards Act, 1890, enacted on July 1, 1890, serves to safeguard the interests and property of minors nationwide, consolidating and amending laws concerning guardianship and wards while respecting the diverse personal laws governing these matters.
• Feature of Guardians and Wards Act, 1890
  • The Guardians and Wards Act, 1890 empowers the District Court or relevant jurisdictional authority to appoint a guardian for a minor, tasked with overseeing the minor's welfare, property, or both.
  • Serving as umbrella legislation, the Act complements personal laws across various religions concerning guardianship matters, ensuring a comprehensive legal framework.
  • While primarily substantive law, the Act also incorporates procedural provisions that interface with personal laws in certain scenarios, facilitating a harmonized application within the broader legal context.

What is Section 9 of the Act ?

• About
  • Section 9 of the Guardians and Wards Act, 1890 delineates the court's jurisdiction regarding applications under the Act.
  • In matters concerning guardianship of minors, the court's jurisdiction extends to the location where the guardians of minors reside or are domiciled.
  • Regarding applications pertaining to the property of minors, the District Court may exercise jurisdiction either where the minor resides or where the property is situated.
• Legal Provision
  • Section 9 deals with court having jurisdiction to entertain application. It states that
    • If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.
    • If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property.
    • If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.

What is the Landmark Judgment cited in Dheeraj v. Smt. Chetna Goswami Case?

• Jagdish Chandra Gupta v. Dr. Ku. Vimla Gupta (2003):
  • In this case Allahabad High Court emphasized that the determination of a minor's ordinary residence hinges on whether the minor was primarily residing in a particular location, notwithstanding any temporary relocation due to special circumstances at the time of legal proceedings.
• Manish Sehgal v. Meenu Sehgal (2013):
  • The Supreme Court clarified that a minor's place of study does not constitute their ordinary residence, establishing a clear distinction between temporary educational arrangements and habitual residence.
• Jagir Kaur v. Jaswant Singh (1963):
  • The Supreme Court elaborated on the concept of "reside," affirming that it entails more than mere temporary or occasional presence, indicating a habitual or permanent dwelling.