In a significant ruling concerning child custody and jurisdiction under the Guardian and Wards Act, the Punjab and Haryana High Court has clarified that the concept of a child's "ordinary residence" does not require a permanent residence to establish the jurisdiction of the court. This interpretation aims to ensure that custody and guardianship matters are determined by courts with a real and substantial connection to the child’s life, rather than being constrained by a narrow legalistic understanding of residence. The case arose when a habeas corpus petition was filed by a mother seeking custody of her minor child, who had been taken away by the paternal grandparents. The mother contended that the child was ordinarily residing with her in Mohali, Punjab, thus conferring jurisdiction to the Mohali courts.
The respondents argued that since the child was no longer living in Mohali at the time of the petition, the local court lacked jurisdiction. However, the High Court decisively rejected this contention. Justice Namit Kumar, while delivering the judgment, held that the determination of “ordinary residence” is a question of fact, and does not hinge solely on whether the child is presently living at a specific place. The Court emphasized that the concept of ordinary residence must be understood in a practical and child-centric manner. It observed that transient movements or even brief absences from a place do not dislodge the ordinary residence status of a minor, especially when the bulk of the child’s life activities—schooling, healthcare, and primary caregiver presence—are tied to that location.
The judgment elaborated that ordinary residence, for the purpose of the Guardian and Wards Act, cannot be equated with permanent residence or domicile. Rather, it implies a place where the child normally lives and has meaningful ties. The Court acknowledged that in today’s dynamic society, families frequently move due to employment, education, or personal reasons, and courts must adapt their understanding of residence accordingly. Therefore, it underscored that the factual context of the child’s life should determine jurisdiction, not rigid definitions.
In the present case, the Court accepted that the child had been living with the mother in Mohali before being taken away and that substantial elements of the child's routine and welfare were associated with that location. On that basis, the High Court affirmed the jurisdiction of the Mohali courts under Section 9 of the Guardian and Wards Act. This ruling has wider implications, as it reinforces a flexible and welfare-oriented approach to determining jurisdiction in guardianship cases. By asserting that ordinary residence is not dependent on the child’s physical presence at the time of filing, the Court has empowered primary caregivers, often mothers, who might face abrupt and non-consensual custody disruptions.
The Punjab and Haryana High Court’s interpretation promotes a realistic and compassionate reading of the law, aligning with the best interests of the child. It sets a precedent that will guide subordinate courts in handling similar jurisdictional questions under the Guardian and Wards Act, ensuring that technicalities do not override substantive justice in child custody disputes.
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