Bishwas PaswanversusSri Ram Paswan

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                                     Miscellaneous Appeal No.654 of 2024
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                  Bishwas Paswan Son of Late Kare Paswan Resident of Vill.- Sangrampur,
                  P.O.-Amaia, P.S.- Asarganj, District- Munger.

                                                                            ... ... Appellant/s
                                                   Versus
            1.    Sri Ram Paswan Son of Late Nandlal Paswan Vill.- Dayal Tola, Balupar,
                  P.O.- Damodarpur, P.S. and Town- Lakhisarai, District- Lakhisarai.
            2.    Indu Kumari, Wife of Sri Ram Paswan Vill.- Dayal Tola, Balupar, P.O.-
                  Damodarpur, P.S. and Town- Lakhisarai, District- Lakhisarai.

                                                            ... ... Respondent/s
                  ======================================================
                  Appearance :
                  For the Appellant/s    :      Mrs. Anju Kumari @ Anju Narain, Advocate
                  For the Respondent/s   :      Mr. Birendra Kumar Tiwary, Advocate
                  ======================================================
                  CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
                                             and
                          HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
                                        ORAL ORDER

                  (Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)

10   24-03-2026                 The instant appeal challenges an order dated

                    20.05.2024 passed by the learned Principal Judge, Family Court,

                    Munger in Guardianship Case No.15 of 2023 holding, inter-alia,

                    that the said Court does not have territorial jurisdiction under

                    Section 9(1) of the Guardians and Wards Act, 1890. Section

                    9(1) runs thus:-

                                “9.(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.”

                                2. It is held by the Trial Court that the minor
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          ordinarily resides within the jurisdiction of Lakhisarai and the

          learned Principal Judge, Family Court, Munger does not have

          any jurisdiction to entertain Guardianship Case No.15 of 2023.

          Therefore, the application was dismissed on the ground of lack

          of territorial jurisdiction.

                       3. Factual aspect as disclosed from the memorandum

          of appeal is that the marriage of the mother of the minor,

          namely, Rupa Kumari, since deceased, was solemnized with the

          applicant/appellant-Bishwas Paswan on 03.12.2017. In their

          wedlock, a female child was born on 02.03.2022. After her

          birth, both the baby and the mother, since deceased, used to

          reside at her paternal home in Munger. The mother of the child

          committed suicide on 14.08.2022, since the birth of the child till

          date, she is residing with her maternal grandparents at

          Lakhisarai. Before the Trial Court, a question was raised as to

          whether the Trial Court has territorial jurisdiction at Munger on

          the ground that the father of the child being the natural guardian

          is the permanent resident of Munger.

                       4. It is clearly laid down in Amal Saha Vs. Smt.

          Vashna Saha, reported in AIR 1988 Gauhati 2022 that

          ordinarily resident does not mean “residence at the time of

          application”, rather, the minors recent removal from the place
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          where he ordinarily resides would rendered nugatory the

          provisions of the section if cognizance of the case is taken. The

          place where the guardian, (in the instant case the appellant)

          resides cannot be presumed to be the place where the minor is

          ordinarily resident.

                       5. On the contrary, where the minor is found to be

          residing, the said place is to be considered as the place of

          territorial jurisdiction.

                       6. In the instant case, it is admitted that the minor

          resides from his date of birth, till date with her maternal

          grandparents at Lakhisarai. Therefore, the learned Principal

          Judge, Family Court, Lakhisarai shall have the jurisdiction to try

          the case relating to custody of the child.

                       7. At this stage, a question arises as to whether the

          learned Principal Judge, Family Court at Munger can dismiss

          the suit for want of territorial jurisdiction.

                       8. Our considered view relying on the provision

          contained in Order-VII Rule-10 and Order-VII Rule-10(A) of

          the C.P.C. r/w Sub-Section 3 of Section 9 of the Act-VIII of

          1890 that in case of want of territorial jurisdiction, the Court

          where the application/plaint is filed is under obligation to return

          the plaint to the applicant with the above observation to file the
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                       application in proper Court i.e. before the learned Principal

                       Judge, Family Court at Lakhisarai.

                                    9. A suit/application cannot dismissed for want of

                       territorial jurisdiction.

                                    10. For the reasons stated above, the learned Principal

                       Judge, Family Court at Munger is directed to return the plaint

                       within fifteen days from the date of this order to the learned

                       Advocate on behalf of the applicant/appellant with permission

                       to file the said application before the learned Principal Judge,

                       Family Court at Lakhisarai for Trial and disposal.

                                    11. With the above order, the instant appeal is thus,

                       disposed of.



                                                (Bibek Chaudhuri, J)


                                             ( Chandra Shekhar Jha, J)
mdrashid/-

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