Parshant Chanana V/s Mrs. Seema Alias Priya (P&H HC) (C.R. No 2027 of 2009)
Section 9(1) makes it clear that it is the ordinary place of residence of minor which determines the jurisdiction of a particular Court to entertain an application for guardianship of the minor. Such jurisdiction cannot be taken away by temporary residence elsewhere at the date of presentation of the challan. The term 'residence' is an elastic word of which an exhaustive definition cannot be given. It is differently construed according to the purpose for which enquiry is made into meaning of the term. The sense in which it should be used is controlled by reference to the objector. A reasonable meaning of 'residence' would mean dwelling in a place for some continuous time. The word 'ordinarily resides' in sub Section 1 ...9 means mere a temporary residence, even though, it will be of such temporary residence may be considerable. Word ordinarily resides would mean a regular, normal, a settled home or a regular place of abode, which can be distinguishable from a temporary or a forced stay. If a minor child has been removed either by stealth or by compulsion and kept at a different place than the house of a natural born, the same cannot be said to be a place where the child 'ordinarily resides.' The respondent has in her petition for the custody of the child specifically mentioned and actually admitted that the child has been taken to Lucknow. She also explained the circumstances that the child had been snatched from her when she was residing at Mohali, where the couple had shifted after three years of marriage. In the petition for custody of the child, the address of the petitioner has been shown to be House No.1433, Sector 34-C, Chandigarh i.e., the house of his parents and another address of Sector 38-D. If the averments in the petition are carefully perused, it is apparent that the place where the child at present is staying is not a permanent place of residence of the child. It appears to be temporary and transitory. It is a place where the child has been sent to someone who is not the natural guardian. The child cannot be said to be ordinarily residing at Lucknow, especially when the respondent claims that child has been forcibly and against her wishes sent to a near relation of her husband. Even if it is presumed that the child had been sent with the consent of the respondent to the house of sister of the petitioner at ...10 Lucknow, on account of she being issueless lady, the same will not tantamount to a conclusion that the temporary place of residence would be a place where the child ordinarily resides. The child is said to ordinarily reside at a place where he is expected to be ordinarily found with his natural guardian but when against the wishes of one of the parents, the child has been sent to a person related, it will not tantamount to a presumption that the place where the child 'ordinarily resides' has been shifted. Generally, the matrimonial house or the house of the parents is considered the family residence of a minor unless and until there are extra ordinary reasons to arrive at a conclusion that the place of ordinary residence has been shifted. The circumstances under which a child has been compelled to reside at another place cannot be said to be a regular, normal or settled home. It cannot be laid down as a hard and fast rule that a minor child will be deemed to be permanently residing at a place where there is matrimonial home but depending on the circumstances, under which he has been removed from the matrimonial home will have to be considered to arrive at a conclusion whether the place where he has been shifted can be said to be a place where he ordinarily resides for the purpose of Section 9 of the Guardians and Wards Act.