In a significant judgment, the Jammu & Kashmir and Ladakh High Court dismissed an appeal challenging the jurisdictional ruling of the Family Court, Jammu. The case dealt with the custody of two minor daughters, with the court reiterating that the “ordinary residence” of the minors determines jurisdiction under the Guardian and Wards Act, 1890, and not the place where the natural guardian resides.
Case Background:
The appellant had filed a petition under Sections 12 and 25 of the Guardian and Wards Act, 1890, seeking custody of two minor daughters. However, the Family Court in Jammu, in its order dated July 25, 2024, returned the application, ruling that it lacked jurisdiction as the minors were residing outside its territorial jurisdiction. The appeal to the High Court sought to overturn this decision.
Legal Issues Involved:
The primary legal question before the High Court was whether the ordinary residence of the minors should be interpreted based on their actual place of residence or if the jurisdiction should consider the mother’s deemed custody under Muslim personal law, which entitles her to the custody of minor daughters until they attain puberty.
Counsel for the appellant argued that under Muslim law, a mother has the right to the custody of minor daughters until puberty, and therefore, the minors should be considered to reside with their mother in Jammu for jurisdictional purposes. To support this argument, reliance was placed on Sections 6 and 17 of the Guardian and Wards Act and earlier judgments, including Akhtar Begum vs Jamshed Munir and Akshay Gupta vs Divya.
The respondent contended that the children had been residing elsewhere, and thus the Family Court in Jammu lacked the necessary jurisdiction to entertain the petition.
Court’s Analysis and Decision:
The Bench, comprising Justice Sanjeev Kumar and Justice Rajesh Sekhri, dismissed the appeal and upheld the Family Court’s decision. In its judgment, the court emphasized the importance of determining the minors’ “ordinary residence” as stipulated under Section 9 of the Guardian and Wards Act, 1890.
The court observed: “The ordinary residence of a minor for the purpose of jurisdiction is not synonymous with the deemed custody of the natural guardian under personal law. It is the actual place where the minor resides ordinarily that determines jurisdiction, not the residence of the parent.”
The judgment cited the Supreme Court’s decision in Ruchi Majoo vs Sanjeev Majoo (2011) 6 SCC 479, which clarified that “ordinary residence” refers to the regular and usual place where the minor lives and cannot be altered by temporary shifts in residence. The court further noted that the minors in this case had never resided in Jammu and had been living elsewhere prior to and during the filing of the petition.
Rejecting the appellant’s argument based on personal law, the court observed: “Ordinary residence of a minor is distinct from the legal custody rights of the natural guardian under personal law. The fact that Muslim law grants the mother custody of minor daughters until puberty does not override the requirement to establish actual ordinary residence for jurisdictional purposes.”
The court also addressed precedents cited by the appellant, particularly Akshay Gupta vs Divya, ruling that it did not correctly interpret the distinction between the residence of the minor and the guardian. The court remarked: “The distinction between the ordinary residence of a minor and that of the mother claiming custody must be drawn carefully for determining jurisdiction.”
The High Court, in its detailed ruling, upheld the Family Court’s decision to return the petition for presentation in the appropriate jurisdiction, concluding that there was no legal infirmity in the lower court’s decision. The appeal was found to be without merit and was dismissed accordingly.
