Bombay High Court

GULAM YAZDANI GULAM SAMDANIversusIRAM AFREEN ABDUL SAMAD

Disposal: DISPOSED OFF
Bench: S G CHAPALGAONKAR

Holding

Jurisdiction under the Guardian and Wards Act is determined by the residence of the minors at the date of institution of the proceeding, not by any subsequent change in the petitioner's residence.

Summary

The petitioner filed a writ petition challenging an order of the Family Court, Nanded, which had refused his application to amend his reply and to record his relocation to Hyderabad. The underlying family court case (Petition D‑10 of 2021) concerned custody of minor children under section 25 of the Guardian and Wards Act, 1890. The Family Court framed a preliminary issue to determine whether the children were ordinarily resident in Nanded at the time the proceeding was instituted. The petitioner argued that his own residence (initially Pune) should dictate jurisdiction, but the court held that jurisdiction depends on the residence of the minors at the date of institution, per section 9 of the Act, and that any subsequent change in the petitioner's residence is irrelevant. Consequently, the writ petition was rejected.

Issues considered

Whether the Family Court had jurisdiction to entertain the custody petition under the Guardian and Wards Act, 1890, based on the residence of the minors at the date of institution of the proceeding.

Legislation cited

Guardian and Wards Act, 1890 — s. 25, 9

Subjects

Guardian and Wards Act
jurisdiction
residence of minor
custody
family court
preliminary issue
amendment

Judgment

2026:BHC-AUG:15695

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

950 WRIT PETITION NO.2455 OF 2026

Gulam Yazdani Gulam Samdani
VERSUS
Iram Afreen Abdul Samad
...
Advocate for Petitioner : Mrs.Ansari Asfia Nuzhat
Advocate for Respondents : Mr. Moinpasha Shaikh Farid
...

CORAM : S. G. CHAPALGAONKAR, J.
Dated : April 08, 2026

PER COURT :-

1. Present writ petition takes exception to the order dated

19.12.2025 to the extent of Exhibit-34 and 40 passed in

Petition No. D-10 of 2021 by Judge, Family Court, Nanded.

2. The petitioner is respondent in petition no.D-10 of 2021.

It has been filed for custody of the minors in terms of

provisions of section 25 of Guardian and Wards Act, 1890. The

petitioner filed an application seeking permission for

amendment in reply as well as application at Exhibit-19 to

bring on record the fact that he has been shifted to Hyderabad

City and serving with Eastern Software Systems Private Limited

as Senior Test Lead. Family Court refused to entertain said
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application on the ground that as per the directions of this

Court preliminary issue is framed which reads thus :-

“(1)Whether the petitioner proves that at
the time of filing this petition, respondent
nos.2 and 3 are ordinary resident at
Nanded.?”

3. Thus, shifting of petitioner from Pune to Nanded or

Nanded to Hyderabad is irrelevant as the issue of jurisdiction

will be decided on the basis of residence of the children as on

the date of institution of the proceeding in terms of Guardian

and Wards Act.

4. Perusal of aforesaid reasons shows that Family Court has

applied analogy of section 9 of Guards and Wards Act, which

prescribes that application in respect of Guardianship of the

person of the minor should be filed before the District Court

having jurisdiction in the place where minors ordinarily

resides.

5. In the present case, petitioner has pleaded that he was

residing at Pune at the time of institution of proceeding and

even children were residing with him and, therefore,

jurisdiction to decide the proceeding under section 9 would be

with the Court at Pune.
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6. In light of aforesaid averments in the reply filed by

respondent, the Family Court will have to decide the place of

residence of children as on the date of institution of

proceeding. Subsequent change in petitioner’s place of

residence during pendency of proceeding would not change

jurisdiction vested with the particular Court. The Family Court

is therefore justified in observing that the amendment sought

by petitioner is irrelevant for deciding preliminary issue, which

deals with residence of minors as on the date of institution of

proceeding. In result, writ petition stands rejected.

( S. G. CHAPALGAONKAR, J. )
...

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