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2025 DAILYLAW 681 (CHH)

Teman Lal Sahu, S/o. Aasharam Sahu v. Hemlata Sahu, W/o. Shri Komal Sahu

2025-11-19

Sanjay K Agrawal, Sanjay Kumar Jaiswal

body2025
Judgment : Sanjay K. Agrawal, J. 1. Heard on I.A.No.1/2024, application for condonation of delay in filing the appeal. 2. Sufficient cause has been shown for delay in filing the appeal. Accordingly, I.A.No.1/2024 is allowed and delay of 179 days in filing the appeal is hereby condoned. 3. Also heard on admission. 4. The appeal is admitted for hearing and with the consent of parties, the appeal is heard finally and is being disposed of by this judgment. 5. The appellant herein has preferred an application under Section 6 of the Hindu Minority and Guardianship Act, 1956 (for short, ‘the Act of 1956’) read with Section 7 of the Guardians and Wards Act, 1890 (for short, ‘the Act of 1890’), for guardianship of his minor daughter i.e. respondent No.2 herein, before the Family Court, Balod. The Family Court, Balod by its impugned order rejected the application holding that by virtue of Section 9(1) of the Act of 1890, the jurisdiction will be of Family Court, Balaghat, Madhya Pradesh, where the minor daughter of the applicant/appellant herein resides, therefore, the Family Court, Balod has no jurisdiction feeling aggrieved against which this appeal has been preferred under Section 19(1) of the Family Courts Act, 1984. 6. Mr. Bharat Lal Sahu, learned counsel appearing on behalf of the appellant herein, would submit that the Family Court, Balod is absolutely unjustified in holding that District Court at Balaghat (M.P.) has jurisdiction to adjudicate the application filed under Section 6 of the Act of 1956 read with Section 7 of the Act of 1890 and therefore the order impugned deserves to be set aside and the present appeal deserves to be allowed. 7. Ms. Rajni Soren, learned counsel appearing on behalf of the respondents herein/non-applicants, would support the impugned order and oppose the appeal. 8. In the present case, the minor daughter of the appellant herein namely, Ku. Tisha Sahu (respondent No.2 herein) is residing at Balaghat (M.P.) along with her mother i.e. respondent No.1 herein. 9. In order to consider the plea raised at the Bar, it would be appropriate to notice Section 9(1) of the Act of 1890, which states as under: - “ 9. Tisha Sahu (respondent No.2 herein) is residing at Balaghat (M.P.) along with her mother i.e. respondent No.1 herein. 9. In order to consider the plea raised at the Bar, it would be appropriate to notice Section 9(1) of the Act of 1890, which states as under: - “ 9. Court having jurisdiction to entertain application .— (1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.” 10. A careful perusal of Section 9(1) of the Act of 1890 would show that the solitary test for determining the jurisdiction of the court under Section 9 of the Act is the ‘ordinary residence’ of the minor. The legislature by the expression ‘ordinarily resides’ meant that it is something more than a temporary resident. A temporary resident at a particular place under compulsion however long cannot be termed as place of ‘ordinarily resides’. 11.The Supreme Court in the matter of Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479 held that test for determining jurisdiction is place of ordinary residence of the minor and intention to make that place one’s ordinary abode. Their Lordships of the Supreme Court further held that sub-section (1) of Section 9 of the Act of 1890 identifies the court competent to pass an order for the custody of the person of the minor, and observed as under: - “ 24. It is evident from a bare reading of the above that the solitary test for determining the jurisdiction of the court under Section 9 of the Act is the “ordinary residence” of the minor. The expression used is “where the minor ordinarily resides”. Now whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. The expression used is “where the minor ordinarily resides”. Now whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. It may at best be a mixed question of law and fact, but unless the jurisdictional facts are admitted it can never be a pure question of law, capable of being answered without an enquiry into the factual aspects of the controversy.” 12.In the instant case, it is admitted by the appellant himself by filing application under Section 6 of the Act of 1956 read with Section 7 of the Act of 1890 that since January, 2017, Smt. Hemlata Sahu and her minor daughter both are residing at Balaghat (M.P.) in their parental house and as such, the jurisdictional fact is admitted. Therefore, the Family Court is absolutely justified in holding that the Court at Balaghat (M.P.) would be having the jurisdiction under Section 9(1) of the Act of 1890 to consider and the decide the application under Section 6 of the Act of 1956 read with Section 7 of the Act of 1890, for guardianship/custody of the minor daughter of the appellant herein. 13.In that view of the matter, the Family Court, Balod is absolutely justified in rejecting the application for custody of the minor daughter and we do not find any merit in this appeal and it deserves to be dismissed. However, the appellant is at liberty to approach the jurisdictional Family Court for seeking appropriate remedy, if so advised. 14.With the aforesaid observation and liberty reserved in favour of the appellant, the appeal stands dismissed leaving the parties to bear their own cost(s).