Punjab & Haryana HC: Child’s “Ordinary Residence” for Guardianship Jurisdiction Is Fact-Based, Not Permanent

The Punjab & Haryana High Court has clarified that, when deciding its jurisdiction under the Guardians and Wards Act, a child’s “ordinary residence” need not be a permanent or uninterrupted one—it depends on the facts of each case.

Under Section 9 of the Act, any application concerning guardianship of a minor must be filed in the district where the child “ordinarily resides.” In a recent judgment authored by Justices Sureshwar Thakur and Vikas Suri, the Court explained that “ordinarily resides” does not imply a fixed, continuous habitation. Instead, it refers to a place that serves as the child’s habitual abode, even if only temporarily, so long as it is not for a special or purely limited purpose. Crucially, this determination hinges on the intention behind making that location the child’s regular dwelling.

The Court outlined several considerations specific to minors:

1. Lack of Independent Choice: A young child cannot decide on their own where to live; they reside with whichever parent has custody.

2. Potential for Removal: A parent may unilaterally relocate the child from the other parent’s custody, meaning the child’s residence with one parent can change abruptly.

3. No Permanent Residence: Because of their dependence and lack of volition, a minor cannot be said to possess a permanent residence; their “ordinary residence” at any given time is simply the place where they live under a parent’s care.

In the case before it, the husband had moved to dismiss his spouse’s custody petition under Order 7, Rule 11 of the Civil Procedure Code, arguing that the Family Court lacked jurisdiction under Section 9 of the Guardians and Wards Act. He contended that the child’s ordinary residence lay elsewhere. The High Court rejected this attempt, finding that questions of jurisdiction based on residence are fact-intensive and cannot be decided without evidence.

Having reviewed the relevant statutes—especially the distinction between guardianship jurisdiction under the Guardians and Wards Act and residence assessments under the Hindu Minority and Guardianship Act—the Court held that the Family Court was correct to allow the custody case to proceed. It noted that if a child is moved forcibly, the timing and manner of that removal bear directly on where the child is ordinarily resident for jurisdictional purposes.

Dismissal of the husband’s application was therefore upheld, and the High Court ordered that the custody trial go forward and be completed within six months.

Representing the Parties

• For the Appellant: Mr. Anil Kumar Garg

• For the Respondent: Mr. Vipin Mahajan