1 2026:CGHC:8407-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA(MAT) No. 346 of 2024 Smt. Zeba Nazneen W/o Sayyed Babar Ali, Aged About 35 Years R/o Juni Hatri, Infant of Pandey Brothers, Ward No. 26, Rajnandgaon, Tahsil & District Rajnandgaon, Chhattisgarh. ... Petitioner versus 1 - Sayyed Babar Ali S/o Sayyed Nawab Ali, Aged About 38 Years 2 - Sayyed Arshan S/o Sayyed Babar Ali, Aged About 9 Years Through Legal Guardian (Father) Sayyed Babar Ali, 3 - Sayyed Afraz S/o Sayyed Babar Ali Aged About 7 Years Through Legal Guardian (Father) Sayyed Babar Ali All R/o Tirumala Appliances, Atabira, District Bargarh, Odisha. ... Respondents For Petitioner : Ms. Priyanka Rai, Advocate For Respondents : Mr. Nishant Bhanushali, Advocate DB- Hon'ble Shri Justice Sanjay K. Agrawal Hon’ble Shri Justice Arvind Kumar Verma Judgment on Board 17.02.2026 Arvind Kumar Verma, J. 1. With the consent of learned counsel for the parties, the matter is heard finally. ASHUTOSH MISHRA Digitally signed by ASHUTOSH MISHRA 2 2. The instant appeal under Section 19(1) of the Family Court Act has been filed being aggrieved with the order dated 27/06/2024 passed by the Principal Judge, Family Court, Rajnandgaon, whereby an application filed by the petitioner under Order 7 Rule 11 CPC was decided wherein it was observed that the Family Court, Rajnandgaon do not have the jurisdiction to entertain the application under Section 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as the Act, 1890) for the reason that both the children are residing with the father at District Bargah (Odisha) and were with the petitioner only for a fixed time period during summer vacation. 3. The brief facts of the case as projected by the petitioner are that marriage between petitioner and respondent no.1 was solemnized on 21.10.2012 as per Muslim rites, out of the said wedlock, both children were born. In June 2021 respondent no.1 left petitioner only with younger son Afraz in Rajnandgaon for medical treatment of petitioner and took elder son Arsan along with him to Odisha. Thereafter, Respondent no.1 moved a complaint before Mahila Thana, Rajnandgaon to take petitioner. On 27.04.2022 respondent no.1 along with elder son came to Rajnandgaon and after halting for two three days, told petitioner that he got a job for which certain document of consent of petitioner is required, and tried to get some document signed by the 3 petitioner by concealing some portion of document, though petitioner was able for read some of portion and denying the same, - petitioner pushed respondent and forcefully took younger son along with him to Bargarh (Odisha) on 30.04.2022. 4. Respondent when being asked, told petitioner that he would bring younger child back after Eid, but he did no bring him back. Petitioner complained the same before child welfare committee, Rajnandgaon where on being called for counseling, respondent use to give excuses and as such respondent forcefully have kept both the children along with him and devoid both the children from love and care of petitioner mother. Respondent use to leave both the children with his old aged mother and as such proper nutrition and care of children is being affected and as such guardianship of both the minor children ought to have been provided to petitioner mother for ensuring proper care of the children. An application of Section 25 Guardian and Ward Act was moved by the petitioner mother before competent court which was rejected vide impugned order dated 27.06.2024. Hence this appeal 5. Learned counsel for the petitioner would submit that the Family Court, Rajnandgaon is absolutely unjustified in holding that the said Court has no jurisdiction to adjudicate the application filed by the petitioner. She 4 would next contend that Section 9 (1) of the Act, 1890 provides that if the guardianship of the minor is concerned it shall be made to the District Court having jurisdiction in the place where the minor ordinary resides. She would next submit that the Respondent No.1 willfully dropped the appellant/mother and Respondent No.3 at Rajnandgaon where the child along with her mother lived for one complete year and he was admitted to a local school and meanwhile he was forcefully taken to Odisha by Respondent No.1 In support of her contention she would place reliance upon the law laid down by the Hon’ble Supreme Court in the matter of Ruchi Majoo Vs. Sanjeev Majoo1, Jagir Kaur Vs. Jaswant Singh2 and V. Ravi Chandran Vs. Union of India3 and would submit that under the circumstances, the impugned order deserves to be set aside and the instant appeal deserves to be allowed. 6. Per contra, learned counsel for the Respondents would submit that the impugned order is well merited which do not call for any interference and the instant appeal deserves to be dismissed. 7. We have heard learned counsel for the parties and perused the documents with utmost circumspection. 1 {(2011) 6 SCC 479} 2 (1964) 2 SCR 73 3 {(2010) 1 SCC 174} 5 8. In the present case, the minor sons are residing at District Bargarh, Odisha along with their father Sayyed Babar i.e. the 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 (Supra) 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 6 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. 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. On perusal of the order sheets and material available on record, it is evident that pursuant to the order dated 25.05.2023 passed in MJC No.30/22, the minor children were placed in the custody of the appellant only for a limited period during summer vacation with a clear stipulation that they were to be returned to the non- applicant prior to reopening of school. It is not in dispute 7 that the minor children are ordinarily residing with the non-applicant at District Barak, Odisha, where they are also pursuing their education. 13. The learned Family Court, taking into consideration the admitted position regarding the place of ordinary residence of the minors, has rightly held that in terms of the settled principle governing jurisdiction in custody matters that jurisdiction lies with the Court within whose territorial limits the minor ordinarily resides, it lacked jurisdiction to entertain the prayer for custody or to pass further consequential directions. The Hon’ble Supreme Court in Ruchi Majoo (supra) authoritatively lays down that the concept of “ordinary residence” determines jurisdiction in such matters and not temporary or casual stay. 14. The order impugned does not adjudicate upon the merits of custody but merely declines to exercise jurisdiction and grants liberty to approach the competent court. Such an order is in consonance with the statutory scheme and does not suffer from perversity, illegality or material irregularity warranting interference in appellate jurisdiction. 15. Accordingly, this Court finds no ground to interfere with the impugned order. The appeal being devoid of merit deserves to be and is hereby dismissed. The appellant shall 8 be at liberty to seek appropriate remedy before the court of competent jurisdiction in accordance with law. SD/- SD/- (Sanjay K. Agrawal) (Arvind Kumar Verma) JUDGE JUDGE Ashu