Child custody cases preferred under the Guardians and Wards Act, 1890 could be filed only before the district court where the minor “ordinarily resides” and such place of residence could be determined only on the basis of facts and circumstances of individual cases, the Madras High Court Bench here has held.
Justice S.M. Subramaniam made the observation while allowing a petition preferred by a woman to transfer a guardianship application preferred by her estranged husband, seeking custody of their six-year-old girl child, from the third Additional Family Court in Chennai to a Family Court in Sivaganga district.
Opposing the plea, a Senior Counsel representing the petitioner’s husband contended that the words “ordinarily resides” found in Section 9 of the 1890 Act should be interpreted in favour of his client especially when the woman had agreed for a reunion and to resume matrimonial life in Chennai before turning a volte face.
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On the other hand, the petitioner expressed her unwillingness to patch up with her husband whom she accused of being a drunkard.
Claiming to be devoid of any independent income, she said there was no option before her but to shift to her parental home at Ilayangudi in Sivaganga district and educate the child in a local school.
After recording their submissions, the judge recalled the Supreme Court to have said: “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.”
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Mr. Justice Subramaniam said: “Now the petitioner and the child are residing at Ilayangudi... along with her parents and it will be difficult for the petitioner and child to travel from Ilayangudi to Chennai to defend the case effectively.
“The courts normally consider the plight of women in respect of transfer of matrimonial cases unless the exceptions are proved... Hence, the place of the wife is preferable and in the present case, the circumstances narrated by the petitioner deserve consideration.”
It will be difficult
for the petitioner
and child to travel from Ilayangudi to Chennai to defend the case effectively