Minor Ordinarily Resides; Test for Determining Ordinary Residence

According to Section 9 of the Guardian and Wards Act, when an application with respect to guardianship of a minor is concerned, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.

Therefore the application with respect to the guardianship must be presented within the jurisdiction of the court where the minor ordinarily resides.

It means that Section 9(1) signifies dwelling in a place for some continuous period. “Ordinarily resides” therefore has the meaning to something more than a temporary residence.

A close analysis of Section 9(1) explains that the period of such temporary or short residence has some difference with the place where the minor generally resides, which would be residing under special circumstances for a short period than the place where the minor ordinarily resides.

Parents living separately and minor is not residing with them

Where the parents are living separately and minor is not residing with them, the primary question is which is the place where the minor “ordinarily resides”. The words used in Section 9 of the Guardian and Wards Act is “where the minor ordinarily resides”.

Section 9 of the Guardians and Wards Act reads as follows:

9. Court having jurisdiction to entertain application – (1) 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.

(2) 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.

(3) 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”.

Privy Council had the occasion to discuss the term ‘ordinarily resides’ in Mrs. Annie Besant V. Narayaniah (AIR 1914 PC 41) which was referred in Ruchi Majoo V. Sanjeev Majoo case (AIR 2011 SC 1952).

A similar position was discussed by the Apex Court in Pooja Bahadur V.Uday Bahadur ( AIR 1999 SC 1741) where the children were residing with father at Delhi and mother at Chandigarh.

The Kerala High Court in Prakash V. Padmakumari (2013 (3) KLT SN 18 (case No.16) held that “in a case of this type where both parents are living separately, the place of residence of the parents can be taken as the place of residence of minors. “Mere temporary residence” will not make it “ordinary residence” and something more than that including an intention to remain at the place is necessary”.

The word “ordinarily resides” has been discussed by the division Bench of Allahabad High Court in Jagdish Chandragupta V. Vimla Gupta (AIR 2003 ALL 317) paragraphs 19 ad 20 read as follows:-

Even though the period of such temporary residence may be considerable, the place where the minor generally resides and would be expected to reside but for special circumstances must be taken to be the place denoting a place where the minor ordinarily resides.

The other aspect which cannot be ignored is that when a person leaves a place where he had been residing as permanent resident for good ie with no intention to come back and goes to some other place to live there, the former place where he used to live ceases to be the ordinary place of residence and the latter place becomes his ordinary place of residence.

The question of residence is largely a question of intention. However, in cases of the minor no question of intention can arise. But the court will have to take into consideration all the relevant facts as brought on record to determine the actual place of residence looking the attendant circumstances.

The past above for however a long period as may be, can cease to be a place where the minor can be said to be ordinarily residing depending upon the facts and circumstances of each case and the nature and duration of the residence.

The mere fact that a minor is found actually residing at a place at the time of the application is made by itself is not sufficient to determine the jurisdiction.

Minor Ordinarily Resides

The expression ordinarily resides and residing at the time of the application are not synonymous and stipulate different situations which are not interchanged. The place where the minor ordinarily resides indicates a place where the minor is expected to reside but for the special circumstances.

It excludes places to which the minor may be removed at or about the time of the filing of the application for the enforcement of the guardianship and custody of the minor.

The place has to be determined by finding out as to whether the minor was ordinarily residing and where such residence would have continued but for the recent removal of the minor to different place”.

Apex Court in Ruchi Majoo V. Sanjeev Majoo (AIR 2011 SC 1952) held as follows:-

“Section 9 of the Guardians and Wards Act, 1890 makes a specific provision as regards the jurisdiction of the Court to entertain a claim for grant of custody of a minor.

It is clear from a bare reading of the above decision that the solitary test for determining the question of jurisdiction of the court under Section 9 of the Act is the ordinary residence of the minor. The expression used under Section 9 of the Act is “whether the minor ordinarily resides”.

In certain situation when parents are living separately the residence of the parents can be taken as the ordinary residence of the minor. In that situation, which is the place where a minor ordinarily resides is the primary question of fact. Unless the jurisdictional facts are admitted by a party, it is difficult to answer the question without a proper enquiry into the factual aspect of the controversy.

Having regard to the object of the above section, a proper enquiry is necessary. A person resides in a place, it may be his permanent or temporary residence. When he chose a particular place as his ordinary residence, then only that can be considered as the ordinary residence.

The Kerala High Court in a latest judgment dated 3rd March 2015 Reegan Jayakumar Vs. Shami Shahul in the light of the above decisions of the Privy Council in Mrs. Annie Besant V. Narayaniah (AIR 1914 PC 41), and apex court in Pooja Bahadur V.Uday Bahadur ( AIR 1999 SC 1741) & Ruchi Majoo V. Sanjeev Majoo (AIR 2011 SC 1952) viewed that when parents are residing separately in two different places and the minor is studying in a school at Pune and resides there, the District Court, Pune where the minor ordinarily resides will get the jurisdiction according to the word “ordinarily resides”.