Jammu & Kashmir High Court Clarifies Custody Jurisdiction: Ordinary Residence Takes Precedence
The Jammu & Kashmir and Ladakh High Court recently ruled that the ‘ordinary residence of a minor’ in custody cases cannot simply be equated to the residence of the natural guardian, even if that guardian is deemed to have custody under personal law. This decision was made by a Division Bench comprising Justice Sanjeev Kumar and Justice Rajesh Sekhri while addressing an appeal related to the Guardian and Wards Act.
The case arose from a custody dispute involving a mother seeking guardianship of her two daughters, aged 5 and 4. The mother argued that under Muslim personal law, she was deemed to have custody until the children reached puberty. However, the court pointed out that this perspective did not accurately address the question of jurisdiction.
Disagreeing with a prior ruling by the Punjab and Haryana High Court, which suggested that a child’s custody could be considered as residing with the mother even if she did not have physical custody, the Jammu & Kashmir High Court emphasized that the ordinary residence of the minor is the critical factor for jurisdiction. “The minor may be in deemed custody of the mother, but for the purpose of determining jurisdiction, it is the ordinary residence of the minor that would be relevant,” the court stated.
The High Court was reviewing a family court’s decision in Jammu, which had denied the mother’s custody petition on jurisdictional grounds, noting that the children were living with their father in Poonch district. The trial court determined that the court’s authority to adjudicate on the guardianship application depended on the location where the minors ordinarily resided.
In its analysis, the High Court referenced Section 9 of the Guardian and Wards Act, which outlines the jurisdictional criteria for guardianship applications. The court reiterated that “ordinary residence of a minor is primarily a question of intention, which, in turn, is a question of fact.”
Ultimately, the High Court found that the children had never resided with their mother in Jammu and had no intention of making it their ordinary abode. As a result, the mother’s plea was rejected, and the trial court’s ruling was upheld.
Advocate Deepika Pushkar Nath represented the appellant, while Advocate HA Siddiqui appeared for the respondent.
(With inputs from agency)
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