Family Courts do not have jurisdiction over deciding custody of minor children who are living abroad ordinarily

Karnataka High Court: While hearing the appeal of a mother who is seeking the custody of her minor children under the prevailing provisions of the Guardians and Wards Act 1890, the Bench of Sreenivas Hasrish Kumar J., agreed on the point made earlier by the Family Court, Belgaum that the respective court did not have jurisdiction to entertain the present case and that ordinary residence as mentioned in Section 9 of the Guardianship and Adoption Act does not include the temporary residence of children.

In this case the Family Court at Belgaum had rejected the plea of the appellant because her children were not ordinarily residents of that place. They used to live with their father at Doha Qatar.  Following this rejected petition, the appellant  appealed to the High Court where the Court considered the fact of the  children’s residence and found no infirmity or illegality in the said order.  The Court observed, “On reading of the Section, it can be noticed that the application must be presented before the Court having jurisdiction in the place where the minor ordinarily resides. The word ‘ordinarily’ has got such a meaning that it rules out temporary residence of the children.”

The Court upheld the decision of the Family Court and dismissed the  appeal. [Dr. Mashmoom v. Sajid, 2016 SCC OnLine Kar 7559, decided on 14.12.2016]

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