Clarifying the “Ordinary Residence” Test Under the Guardian and Wards Act: The New Precedent in SULBHI AND ORS v. BHAVNESH KUMAR

1. Introduction

The case of SULBHI AND ORS v. BHAVNESH KUMAR, decided by the Punjab & Haryana High Court on January 7, 2025, addresses an important jurisdictional issue under the Guardians and Wards Act, 1890 (GWA). The petitioner (the mother, along with her parents) challenged an order passed by the Civil Judge (Sr. Divn.)/Guardian Judge, Chandigarh, which held that Chandigarh courts had the territorial jurisdiction to decide a guardianship petition. The petitioners contended that the child, “Rehanshi,” was ordinarily residing in Jalandhar for an extended period, thus placing the case under the jurisdiction of Jalandhar courts.

The father (respondent) argued that the parents were both residents of Chandigarh and that the child’s removal to Jalandhar ought not to strip Chandigarh of its jurisdiction. However, on closer examination, the High Court ultimately ruled that the “ordinary residence” of the child, rather than the parents’ place of residence, is determinative for jurisdictional purposes under Section 9(1) of the GWA.

In deciding this matter, the Court revisited several landmark judgments, clarifying how Section 9 of the GWA should be interpreted in conjunction with Section 6 of the Hindu Minority and Guardianship Act, 1956 (HMGA). By doing so, the Court has set a new precedent emphasizing that the actual, factual abode of the child will govern which court may properly entertain a guardianship or custody matter.

2. Summary of the Judgment

The High Court overturned the trial court’s order which had deemed Chandigarh to be the correct jurisdiction primarily based on the principle that a child below five years of age “ordinarily” resides with the mother. Instead, the High Court found that because the child had been physically living with her maternal grandparents in Jalandhar since June 2021 and was also attending school there, that arrangement established Jalandhar as her ordinary place of residence. The Court held:

• The fact that the father and mother are permanently based in Chandigarh does not, in itself, override “ordinary residence” of the child in Jalandhar.
• Section 9(1) of the GWA requires the guardianship petition be filed in the place where the child was actually, physically, and ordinarily residing at the time of filing.
• Reliance on the mother’s residence to fix jurisdiction (by deeming custody for a minor below five years) leads to an incorrect interpretation of Section 9 of the GWA.

Concluding these points, the Court ruled that Jalandhar courts, not Chandigarh courts, had proper jurisdiction over the guardianship petition. Consequently, the impugned order was set aside.

3. Analysis

a. Precedents Cited

The High Court cited several significant precedents to clarify the interplay between “ordinary residence” under Section 9 of the GWA and the natural guardianship provisions in HMGA. Key among them are:

1. Rajesh v. Komal (Division Bench of the same High Court) – This case underscored that the actual place where a child has been physically residing is essential in determining ordinary residence, rejecting a strict linkage to the mother’s domicile for children under five.
2. Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479 – The Supreme Court provided guidance on interpreting “ordinarily resides.” The Court reasoned it involves factual aspects and the intention behind the child’s stay in a particular place.
3. Rosi Jacob v. Jacob A. Chakramakkal (1973 AIR SC 2090) – Highlighting the concept that the paramount concern is the welfare of the child. Courts must adopt a “reasonably liberal interpretation” of GWA to effectively protect minors’ interests.
4. J K v. N S (2019: DHC: 3125-DB) – A Division Bench of the Delhi High Court reaffirmed that Section 6 of HMGA and Section 9 of GWA operate in separate spheres: one deals with natural guardianship, the other with territorial jurisdiction.
5. Single-Bench decisions such as Akshay Gupta v. Divya were noted but deemed to be at variance with the more authoritative Division Bench rulings.

These references collectively shaped the Court’s appreciation of “ordinary residence,” enabling it to conclude that physical presence and factual circumstances trump a strict “mother’s residence” rationale.

b. Legal Reasoning

The Court engaged in a careful reading of Section 9 of the GWA, which mandates that the application for guardianship be made to the District Court where the minor “ordinarily resides.” Section 6 of the HMGA, which states that custody for children under five years is “ordinarily” with the mother, does not override the GWA provision on jurisdiction. The Court emphasized that:

• The term “ordinary residence” cannot be conflated with the residence of the mother or father.
• Even if the child is below five years of age, the Court must look to where the child has been physically living and studying, not merely the legal presumption of maternal custody.
• Interpreting Section 6 of HMGA as a blanket rule for deciding jurisdictional matters would potentially render irrelevant the explicit text of Section 9 of the GWA.

The Court also found that the question of whether the child was forcefully removed from Chandigarh or voluntarily taken by the mother to Jalandhar should be examined during the trial, but it does not alter that the child had in fact been residing at Jalandhar for over a year and a half prior to filing. Thus, under the GWA, Jalandhar is the place of ordinary residence.

c. Impact

This ruling is likely to have a notable impact on future custody and guardianship disputes, particularly where the child’s location diverges from either parent’s official place of residence. After this judgment:

• Courts are compelled to look beyond a simple presumption of maternal custody for very young children when determining territorial jurisdiction.
• The child’s actual living arrangement, including schooling and day-to-day environment, will carry significant weight.
• Litigants may find stronger or weaker grounds for jurisdiction depending on documented proof of where the child has been continuously present.

In sum, the decision tightens and clarifies the framework for analyzing ordinary residence when multiple jurisdictions may be involved.

4. Complex Concepts Simplified

Several intricate legal doctrines appear throughout the judgment, warranting plain-language clarification:

• Ordinary Residence: A factual, real-world assessment of where a person regularly lives. It looks to the continuity and settled nature of the minor’s presence at a location rather than the legal or notional domicile of the parents.
• Jurisdiction: The legal authority of a court to hear a case. Under Section 9(1) of the GWA, the relevant test is where the child was actually residing (physically and for a significant duration) when the guardianship petition was filed.
• Natural Guardianship: Under Section 6 of the HMGA, the father is the natural guardian of a minor child (and after him, the mother). However, for children below five, “custody” is ordinarily entrusted to the mother for welfare; it is not, by itself, conclusive of jurisdictional questions.
• Guardian and Wards Act, 1890 (GWA): The main law governing applications for guardianship of minors in India. Its guiding principle is the best interest and welfare of the child.

5. Conclusion

The High Court’s decision in SULBHI AND ORS v. BHAVNESH KUMAR firmly reaffirms the principle that the physical and factual abode of the child determines the correct forum for guardianship and custody proceedings. By ruling that a child’s “ordinary residence” cannot be assumed to be that of the mother simply because the child is below the age of five, the Court clarifies that a meaningful factual inquiry is required whenever “ordinary residence” is in dispute.

This judgment significantly enriches jurisprudence under the Guardians and Wards Act, 1890. It underscores that statutory interpretations must keep the welfare of minors in focus, while remaining consistent with the plain meaning of Section 9. Going forward, courts and parties involved in child custody matters will need to present and evaluate evidence on where the child is actually living or studying, and how long that arrangement has been in place. This thoughtful reaffirmation of the law ensures that the child’s reality remains paramount in guardianship disputes.