1. Kindly read S. 9 of GWA for understanding Jurisdiction of Court in GWA matters once issues are framed.
2. In connection with the term '' ordinary residence'' as appearing in Section 9 , Lord Denning MR has made the following observations:-
"So long as the father and mother are living together in the matrimonial home, the child's ordinary residence is the home, and it is still his ordinary residence, even while he is away at Boarding School. When father and mother are at Variance and living separate and apart, and by arrangement the child resides in the house of one of them, then that home is the ordinary residence, even though the other parent has access and the child goes to him from time to time. Quite generally, I do not think a child's ordinary residence can be changed by one parent without the consent of the other or by other's acquiescence.''
3. In JAGDISH CHANDRA GUPTA VS. VIMLA GUPTA,AIR 2003 ALL 317 it hasbeen held that:-
"The expression 'ordinarily resides' signifies something more than a temporary residence. 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 may be taken to be the place denoting a place where the minor ordinarily resides.''
4. Another relevant provision which deserved to be looked into at this juncture is section 6 of Hindu Minority & Guardianship Act 1956 which runs as under:-
Natural guardians of a Hindu Minor:-
The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are
a) in the case of a boy or an unmarried girl- the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
b)in case of an illegitimate boy or an illegitimate unmarried girl- the mother, and after her, the father;
c)in the case of a married girl- the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
a) if he has ceased to be a Hindu, or
b) if he has completely and finally renounced the world by
becoming a hermit or an ascetic.
5. The conjoined reading of both the statues , specifically shows that the jurisdiction to file petition U/s 25 Guardianship & Ward Act lies only with the court where the minor in question ordinarily resides. So as to ascertain as to what is the place where the minor can be adjudged to be ordinarily residing is dependent on various circumstances. These circumstances have been elaborately dealt with by Hon'ble Delhi High Court in case title RAMJI LAL YADAV vs. DILIP KUMAR YADAV 6(1998),DLT 526. Hon'ble High Court while summing up the relevant consideration has observed :-
''while ascertaining the residence of the minor, one has to see all the circumstances, the place where the child is living , the relation who is having the custody, the person who has preferential claim of the custody or in natural care, age of the child, welfare of the child, qualification or disqualification of the preferential natural guardian and place of residence of such guardian to decide constructive and deemed residence of the minor. Each factor is equal important and subservient to the ultimate purpose of over all welfare of the child.''
6. In case title Eugenia Archetti Abdulla Vs. State of Kerala 2005 (1) RCR Civil 259 , Division Bench of Hon'ble Kerala High Court observed,
'' the lap of the mother is the natural cradle where the safety and welfare of these twins under the age of three year can be assured and there is no substitute for the same. Mother's protection for such children is in dispensable. As held by the full bench : we can not think of any other protection which will be equal to in measure and substance to that of the mother.''
7.In Seema @ Preeti Vs. Parmod Chanderkant Verneker 2005 (1) RCR Civil 258 Hon'ble Karnatka High Court observed that :
''it is well settled that while considering the application for transfer of matrimonial proceedings , the convenience of the wife has to be looked into as laid down by the Supreme Court in the case of Sumita Singh Vs. Kumar Sanjay and another AIR 2002 SC 396.''
8. In case title Smt. Sarabjeet Vs. Pyara Lal and others 2005 (3) RCR Civil 213 Hon'ble Punjab and Haryana High Court while discussing the term ''
MINOR ORDINARILY RESIDES'' observed that :
Section 6 A of the Hindu Minority and Guardianship Act in unmistakable term has provided that the mother as against the father is entitled to the custody of the child up to the age of 5 years which is a mandatory provision. Thereafter parties being the mother and father may apply for the custody which would be decided by the court by keeping in view the paramount consideration of welfare of the child........ once
U/s 6 a , it is mandatory that a child below the age of 5 years has to reside ordinarily with the mother , then the expression '' where the minor ordinarily resides'' has to be interpreted to
mean the residence of the mother. In other words the residence of the mother would follow the residence of the son ..... the tender age of the child below five years would necessarily require the natural love and affection which the child is likely to get in the lap of his mother .......the custody of such a child with the mother would facilitate his proper growth .''
9.In another case title Bharat Bhushan Vs. Madhu 2005 (3) RCR Civil 206 Hon'ble Punjab and Haryana High Court Observed,
'' there can not be two opinions that mother is always in a better position to look after and cater to the biological needs of a female child.''
10.In case title Anita Krishan Kumar Kachba Vs. Krishan Kumar Ram Chander Kachba AIR 2003 Bombay 273, DB of Hon'ble High Court ,
''in the formative years, it is the mother who can look after the physical , biological, psychological , mental , spiritual or ethical growth of a child ''
11.In other case titled Chetna Ram Teerath Vs. Kumar V. Jagirdar 2003 (3) RCR Civil 52 , Hon'ble Karnatka High Court observed :-
'' the company of the mother is the most natural thing for child and that is what has evolved over a period of generation. So long as mother does not suffer from any disqualification , she does not dis entitle herself to bring up her child , neither father nor any other person can endow the same kind of love and affection , care and sympathies to a child that a mother can.''
12. These golden principles have to be applied on the facts of this case as well before a decision can be arrived at as to what is the ordinary place of residence of the child . She is living with her respondent mother at Gaziabad . The age of the child is such that she needs mother's care and comfort besides spending quality time with her.
13. Further, in AIR 2005 Punjab and Haryana 237 titled Smt. Servjeet Vs.Pyara Lal and another while referring to AIR 1994 SC 1224 Surender Kaur Sandhu Vs. Harvansh Singh Sandhu, Hon'ble High Court observed:
'' there is another aspect in this matter which requires to be noticed. It would be highly inconvenient for her to prosecute proceedings for the custody of the minor Gautam at Ambala. It is well settled that convenience of hopeless woman like the petitioner is always kept in view. It is the duty and function of the court.''
14.Applying the dictum laid in the aforesaid case laws on the facts of the case in hand, since the respondent mother is living at Gaziabad alongwith the child she should not be forced to commute all the way to Delhi, just to defend the custody of her minor child.
15.As such summing up the entire discussion, I think the Hon'ble Judge will not have hesitation in concluding that place of ordinary residence of child is Gaziabad and not Delhi as sought to be made by the petitioner .
Sorry to disappoint you but with above observations the preliminarily issue will be accordingly decided against the petitioner and in favour of the respondent.
However do not loose hope. I am also fighting for custody of my 9 years old fremale child.
Regards,
D.Arun Kumar, New Delhi
