Judgment : C.T. Selvam, J. 1. This Habeas Corpus Petition is filed seeking a direction to the first and second respondents to produce the minor children viz., Nithila Kumar, aged about 3 years and Aarush Kumar, aged 1 year before this court and set them at liberty. 2. First petitioner is the maternal grandmother of the minor children. Alleging that her son-in-law, the third respondent had abducted the minor children from Australia and taken them out of care and custody of her daughter, this petition has been filed. The second petitioner has been impleaded as such under orders of this court of even date. The petitioners sought a direction that the first and second respondents/Police Authorities be directed to produce the minor children and set them at liberty. 3. The third respondent and the second petitioner are husband and wife. Petition informs that the second petitioner was a permanent resident of Australia as was the third respondent. The second petitioner as also the third respondent are Doctors. The second petitioner forwarded an E-mail informing that the minor children had been abducted by the third respondent and brought to India, causing great mental anguish to the second petitioner. The Investigation report of the Australian Police authorities reveals that the third respondent forged the second petitioner's signatures and wrongfully obtained passports and visas and brought the children to Chennai without the knowledge of second petitioner. It is contended that the third respondent and his family members caused the second petitioner much pain and anguish. Being financially dependent upon the third respondent, the second petitioner desired to take up a job by clearing Australian medical examinations, which she did. She joined the Ryde Hospital in Sydney and obtained a Fellowship of Medicine job in Liverpool Hospital as a Registrar. The second petitioner found herself in the family way in October 2009 and delivered the minor girl in July 2010. She resigned her job and spent about two years with the baby. She gave birth to the boy child in 2012. Upon request, the first petitioner went to Australia three months prior to the second petitioner's delivery, spent almost a year and returned to Chennai in April 2013. From January 2013, the second petitioner lived separately with the minor children towards undergoing General Practitioner Training in Wollongong, Australia, while the third respondent stayed at Sydney. Upon request, the first petitioner went to Australia three months prior to the second petitioner's delivery, spent almost a year and returned to Chennai in April 2013. From January 2013, the second petitioner lived separately with the minor children towards undergoing General Practitioner Training in Wollongong, Australia, while the third respondent stayed at Sydney. Ruing the second petitioner's independence, the third respondent behaved aggressively and improperly and failed to provide a positive environment for the children. Following an incident of domestic violence on 13.05.2013, when the third respondent brutally attacked the second petitioner and even removed her Thirumangalyam, the second petitioner informed him that she would go to the Police to protect the safety of her children and herself. The third respondent plotted a scheme to punish the second petitioner by separating her from the children. As a first step, the elder minor daughter was taken away every week to stay with him at Sydney and meet his friends there. After some weeks, the third respondent took the second child/minor son out to play in a play area. On 21.06.2013, the third respondent informed second petitioner that he would take the children out to a tourist attraction and Theme Park on 24.06.2013, informing that three families were going along with him and that the children would have the company of other young children. Third respondent took the children on 24.06.2013 informing that he would return by 3.30 p.m. Not wanting to deprive the children of the love of their father and being of genuine belief that the third respondent would take proper care of them having absolutely no inkling that he would "abduct", the children, the second petitioner raised no objection whatsoever. Having no communication from the third respondent, the second petitioner sought to establish contact with him over phone by 4.30 p.m., but had no response. Using a 'blocked' number, a stranger informed that the third respondent was keeping the children for a day and that he would call her. Despite efforts, she was not able to establish contact with the third respondent. She approached the service provider towards tracing the blocked number and also E-mailed her husband/third respondent informing that she would complain to the Police. In desperation, she called the third respondent's friend about 11.00 p.m towards ascertaining the whereabouts of the children. Despite efforts, she was not able to establish contact with the third respondent. She approached the service provider towards tracing the blocked number and also E-mailed her husband/third respondent informing that she would complain to the Police. In desperation, she called the third respondent's friend about 11.00 p.m towards ascertaining the whereabouts of the children. The third respondent, using an overseas number, called her and informed that he had taken the minor children away and stated that she could follow him if she wanted the children. The second petitioner was shocked. The first petitioner has contended that towards causing mental anguish to the second petitioner and preventing her from practising medicine and her consequent independence, third respondent had hatched the scheme and brought the children to Chennai on 25.06.2013. It is informed that towards bringing the minor children to India, both parents would be required to sign the passport and visa application forms and the third respondent had forged second petitioner's signatures. It is also informed that the second minor boy child is a suckling child. First petitioner informed that the second petitioner complained to the Australian Police Authorities and their report dated 28.06.2013 revealed commission of serious criminal acts and fabrication of documents by the third respondent towards bringing the minor children to India. The second petitioner had informed her brother one Dr.P.Mathan who in turn sent a complaint to the Chief Minister's cell on 27.06.2013. Such complaint was forwarded to the respondents 1 and 2 for appropriate action. No action had been taken. 4. The second petitioner had informed her brother one Dr.P.Mathan who in turn sent a complaint to the Chief Minister's cell on 27.06.2013. Such complaint was forwarded to the respondents 1 and 2 for appropriate action. No action had been taken. 4. Alleging that the minor children had been wrongfully detained by the third respondent with the help of his parents, namely fourth and fifth respondents, that fourth respondent was a political leader of some clout, that the third respondent and fourth respondent had threatened not to disclose of whereabouts of the minors and not to hand over them, the second petitioner was in a state of shock and unable to feed her second child since 24.06.2013, the first child/minor girl Nithila Kumar also needs the help of her mother for each and every activity and as a grandmother, she was much concerned about the welfare and safety of the children, as also that her daughter, the second petitioner was constantly humiliated and harassed by respondents 3 and 4 by giving a vexatious complaint to the All Women Police Station, the first petitioner has prayed for a direction to be issued to first and second respondents to produce the minor children viz Nithila Kumar aged 3 years old, and Aarush Kumar aged 1 year. 5. Third respondent has filed a counter informing of his having been a dutiful husband and father and of providing a sophisticated life besides providing monetary support to second petitioner's parents. He informs of the second petitioner/wife holding an obnoxious attitude and that she harassed him towards obtaining transfer and purchase of properties in her name. He had purchased a house and car at Australia and also provided a 'Nanny' for the children. Second petitioner failed to take care of the children and even did not breast-feed the infant child. The second petitioner suffers from mental instability and her poor conduct resulted in his suffering from chest pain. Second petitioner treated the children poorly towards hurting him. She was also given to violence and scratched herself causing injury. She has spoilt his relationship with his parents, brother and sister. On earlier occasion at Chennai, she had been treated for strange behaviour. As the father of the second petitioner was now no more, he had informed her mother, the first petitioner, as also her brother and sister, who stated that they had no control over her. She has spoilt his relationship with his parents, brother and sister. On earlier occasion at Chennai, she had been treated for strange behaviour. As the father of the second petitioner was now no more, he had informed her mother, the first petitioner, as also her brother and sister, who stated that they had no control over her. He had advised her to take care of the children as they were more important than properties. She deliberately refused and shouted that she would also purchase properties like him by going to work. Informing that the children were attached to him, particularly the 3-year old daughter, it is stated that as his parents were at Chennai, he could stay at Chennai and with the help of his mother, he could take care of the children, as the welfare of the children is paramount. It is unsafe to allow the children to be with the second petitioner, as she is not in a normal state of mind and is not aware of her doings in such state. As second petitioner imagines things and visits him, the children and his parents with uncontrollable anger, she is in need of counselling and treatment for acute mental illness, towards which she is not co-operative, despite efforts. Instead of coming forward to solve issues amicably, first petitioner and brother of the second petitioner aggravated the situation. Despite his having sufficient grounds to seek divorce, he is as of now ready and willing to live with his wife/second petitioner, provided she takes care of her children by staying at Chennai. He would provide all facilities there towards and also towards treatment of second petitioner. It is in such circumstances that he asked second petitioner to come back to India. Though she originally accepted, and tickets were booked for all, she subsequently refused to come and hence he was constrained to bring the children with him as she did not take any care whatsoever of them. It is alleged that second petitioner did not want the children to be with her and asked him to take the children with him. It is thus he came to Chennai with the children on 25.06.2013. It is alleged that second petitioner did not want the children to be with her and asked him to take the children with him. It is thus he came to Chennai with the children on 25.06.2013. He informs that his peaceful custody of the children was disturbed by persons acting at the instance of second petitioner and her brother having preferred a complaint (registered in CSR No.5289677, dated 25.06.2013) to the Inspector of Police, T.Nagar, Chennai seeking protection for himself and his children and also prevention of attempts to disturb his custody. Claiming that second petitioner cannot take care of the children, he has informed of moving the I Additional Family Court, Chennai in G.W.O.P. No.2377 of 2013 seeking a declaration to appoint him as a guardian of the minor children. He has informed of having obtained an order of status quo on 05.07.2013 and that the case was posted on 30.07.2013 and notice has also been issued to second petitioner. For the rest, the counter of the third respondent is a negation of allegations made against him and his family members and depiction of second petitioner in poor light. He also seeks to justify his action of bringing the children to India, stating that as a lone man residing in a foreign country, he was unable to take care of them at all times and that too under unpleasant situations. While denying the charge of forgery, advantage is sought to be taken of the intent of second petitioner to travel to India reflected in the report of the Australian Police. Copies of papers relating to proceedings initiated by second petitioner both before police as also Federal Circuit Court of Australia, Wollongong and of messages between second petitioner and third respondent also have been filed before us. 6. Learned counsel for petitioners submitted that second petitioner and third respondent were married on 27.11.2005. A daughter was born to them on 22.07.2010, while the son was born on 25.07.2012. Both children were Australian citizens. Second petitioner held a job and the children were with her. Third respondent used to visit over week ends. 6. Learned counsel for petitioners submitted that second petitioner and third respondent were married on 27.11.2005. A daughter was born to them on 22.07.2010, while the son was born on 25.07.2012. Both children were Australian citizens. Second petitioner held a job and the children were with her. Third respondent used to visit over week ends. Placing reliance on the affidavit of first petitioner to inform the manner in which the children had been brought to India, learned counsel submitted that a complaint was made to the local Police Authorities by first petitioner on 03.07.2013, while second petitioner on her part had immediately approached the Police Authorities at Australia. Placing reliance on papers placed before this Court, learned counsel contended that the same reflected the position that third respondent had acted wrongfully and forged signatures on passport and visa papers and removed the children of tender age out of the custody of the mother driven by his own selfish motives and without concern for the welfare of the either second petitioner/wife or the children. Learned counsel submitted that this Court presently may order return of the custody of the children to second petitioner and leave it to the Courts in Australia finally to decide and determine the issue. 7. Learned Senior counsel Mr.N.R. Elango appearing for third respondent contended that third respondent and children had left Australia on 24.06.2013. Facing threats from the family members of second petitioner, third respondent filed a petition before the I Additional Family Court, Chennai in G.W.O.P.No.2377 of 2013 on 28.06.2013 and an order of status quo had been obtained on 05.07.2013. Notice had been served to second petitioner and the case has been adjourned to 30.07.2013. Admittedly, Habeas Corpus petition had been moved before this Court on 10.07.2013 and listed on 11.07.2013. Even before second petitioner moved the Court in Australia on 11.07.2013, the Family court in Chennai was seized of the matter. Despite such position, the proceedings before the Family Court, Chennai had not been informed to the Australian Court. He would contend that as the Family Court in Chennai is seized of the matter of custody of the children, this Habeas Corpus Petition is not maintainable. In any event, this court would not merely take into account the respective rights of parties, but would consider paramount the welfare of the children. He would contend that as the Family Court in Chennai is seized of the matter of custody of the children, this Habeas Corpus Petition is not maintainable. In any event, this court would not merely take into account the respective rights of parties, but would consider paramount the welfare of the children. Learned Senior counsel sought to impress upon us that as India is not a signatory to the Hague Convention on the civil aspects of International child abduction, the mere act of removing children from the custody of the mother would not affect other considerations. He would submit that even before this court was approached through the present proceedings, third respondent was before a competent court and enjoyed an interim order in his favour. Since India was not a signatory to the convention, the mere 'abduction of children' would not automatically result in an order of this court directing that they be sent back to Australia. He contended that second petitioner also intended to settle in India and therefore, removal of children to India by third respondent really could not be taken umbrage against. Learned Senior Counsel relied upon the judgment of this court reported in Nasheeda J. Bhavnagarwala v. The Commissioner of Police Madras and Others (1997 (VOL XLI) MLJ (Crl) 503), to contend that it was necessary to record evidence as to the suitability of either parent to hold custody of the children, their welfare being of paramount interest. The competent civil forum under Guardian and Wards Act, 1890 was the more appropriate one, it having been held that the remedy there before cannot be stated to be less efficacious than that under Article 226 of Constitution of India. Learned Senior Counsel relied on a decision of this court reported in K.V.Bhaskaran v. P.O.Shoba (1993 (2) MWN (Crl) Mad 87) again to impress upon us that the appropriate forum to decide the question of custody would be the Family Court, which third respondent had approached. He would seek to use to advantage the observations in paragraph 11 of such judgment: "11. In Dushyant somal v. Sushma Somal ( AIR 1981 SC 1026 : (1981) 2 SCC 227: (1981) 2 SCJ 877), also facts we are different from the present case. He would seek to use to advantage the observations in paragraph 11 of such judgment: "11. In Dushyant somal v. Sushma Somal ( AIR 1981 SC 1026 : (1981) 2 SCC 227: (1981) 2 SCJ 877), also facts we are different from the present case. There impudently disregarding the Court's order, the husband had snatched away the child from the wife and the wife had to file a habeas corpus prayed for by the wife, it also observed as follows: "There can be no question that a writ of habeas corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child. Clear grounds must be made out." In Surinder kaur Sandhu v. Harbax Singh Sandhu ( AIR 1984 SC 1224 : (1984) 3 SCC 695 : 1984 SCC (Crl) 464 : (!984) 2 S.C.W.R. 116: (1984) I Crimes 928), in a habeas corpus petition,remedy of custody of child was given to the mother as against the father. But, there again mother obtained order of the English Court, directing her husband to deliver custody of the child to her and on that basis filed a writ petition in the High Court in India. Thus, there again, there was a special reason for affording the relief in a habeas corpus petition. As already stated, the present case is entirely different and even on the very allegations in the supporting affidavit, there is no warrant for exercising the jurisdiction under Art.226 of the Constitution of India. It may also be stated that normally when there are laches on the part of the petitioner, the writ jurisdiction will not be exercised, particularly when there is no violation of fundamental rights." Learned Senior counsel submitted that perusal of the medical records of second petitioner would inform that she was not a fit person to have custody of the children. Third respondent was most concerned with the welfare of the children and had no objection to the children even being kept in India under the care of first petitioner, their maternal grandmother. As a person who works 12 hours a day the second petitioner was not a home maker. The children would be in the care of some servant. Third respondent was most concerned with the welfare of the children and had no objection to the children even being kept in India under the care of first petitioner, their maternal grandmother. As a person who works 12 hours a day the second petitioner was not a home maker. The children would be in the care of some servant. Learned Senior counsel submitted that his contentions found support in the observations of the Apex court inRuchi Majoo v Sanjeev Majoo ( 2011 (6) SCC 479 ) which read as follows: 2. Conflict of laws and jurisdictions in the realm of private international law is a phenomenon that has assumed greater dimensions with the spread of Indian diasporas across the globe. A large number of our young and enterprising countrymen are today looking for opportunities abroad. While intellectual content and technical skills of these youngsters find them lucrative jobs in distant lands, complete assimilation with the culture, the ways of life and the social values prevalent in such countries do not come easy. The result is that in very many cases incompatibility of temperament apart, diversity of backgrounds and inability to accept the changed lifestyle often lead to matrimonial discord that inevitably forces one or the other party to seek redress within the legal system of the country which they have adopted in pursuit of their dreams. 3. Experience has also shown that in a large number of cases one of the parties may return to the country of his or her origin for family support, shelter and stability. Unresolved disputes in such situations lead to legal proceedings in the country of origin as well as in the adoptive country. Once that happens issues touching the jurisdiction of the courts examining the same as also comity of nations are thrown up for adjudication. It is contended that the intent of second petitioner also was to take up residence in India and therefore it must be construed that the minor children had been brought to India towards fulfilling such intention. This in turn would lead to the position that they 'ordinarily' were resident in India. 8. Learned Senior counsel placed reliance on paragraphs 36 and 60 of the judgment of the Apex court in Ruchi Majoo v Sanjeev Majoo ( 2011 (6) SCC 479 ) which read as follows: "...36. This in turn would lead to the position that they 'ordinarily' were resident in India. 8. Learned Senior counsel placed reliance on paragraphs 36 and 60 of the judgment of the Apex court in Ruchi Majoo v Sanjeev Majoo ( 2011 (6) SCC 479 ) which read as follows: "...36. It is evident from the statements and the pleadings of the parties that the question whether the decision to allow the appellant and Kush to stay back in Delhi instead of returning to America was a voluntary decision as claimed by the appellant or a decision taken by the respondent under duress as alleged by him was a seriously disputed question of facts, a satisfactory answer to which could be given either by the District Court where the custody case was filed or by the High Court only after the parties had been given opportunity to adduce evidence in support of their respective versions. .... 60. In cases arising out of proceedings under the Guardian & Wards Act, the jurisdiction of the Court is determined by whether the minor ordinarily resides within the area on which the Court exercises such jurisdiction. There is thus a significant difference between the jurisdictional facts relevant to the exercise of powers by a writ court on the one hand and a court under the Guardian & Wards Act on the other. It is his submission that a decision on the question of custody of the minor children be left to the Family court. Learned Senior counsel would finally submit that this court would not go into the question of forgery nor pass any order that would scuttle the proceedings before the Family court. 9. In reply, learned counsel for the petitioners submitted that Section 6 (a) of the Hindu Minority and Guardianship Act, 1956 provides that a minor below 5 years should normally be in the custody of the mother. In the instant case, the children are aged 3 and 1 respectively. The proceedings before the Australian Court were brought to notice of the Family court and hence the order of status quo obtained by third respondent was not extended. The first child held a person of Indian origin card while the second did not. Both children were Australian citizens. In the instant case, the children are aged 3 and 1 respectively. The proceedings before the Australian Court were brought to notice of the Family court and hence the order of status quo obtained by third respondent was not extended. The first child held a person of Indian origin card while the second did not. Both children were Australian citizens. As they were not ordinarily resident in India, the Family Court would have no jurisdiction to exercise powers under Section 17 of the Guardians and Wards Act,1890. Learned counsel would add that allegations of forgery of passport and visa were not denied in the counter of third respondent. Perusal of the papers would inform that second petitioner was quite well and healthy and in sound state as also that she was doing extremely well at her place of work. There was no reason to doubt that she would be unable to take proper care of the children. 10. Though several decisions have been relied upon by either side and we have recorded herein above the rival contentions, we find it necessary not to dwell at too much length. We proceed to the findings recorded by us on 06.08.2013. "This habeas corpus petition is filed for a direction to the first and second respondents to produce the minor children viz., Nithila Kumar, aged about 3 years and Aarush Kumar, 11 months old, before this Court and set them at liberty. 2. A more detailed discussion on the facts will follow: For now, we render our findings after informing the essential facts: (i) The petitioner is the grandmother of two infant children, a girl aged about 3 and a boy aged about 1. Informing that the children, who were in the custody of their mother, i.e her daughter, had been removed from Australia by the third respondent, her son-in-law, clandestinely, the petitioner had sought custody of the children. (ii) As it was seen from the papers produced before us that the intent of the mother of the children was to go over to India, we have required her to be present before this court. (iii) As per direction of this Court, the mother of the children appeared before this Court on 10.07.2013. 3. Taking into account the affidavit filed by the mother of the children, namely, Prarthana Packiam, she is impleaded as petitioner No.2 in this habeas corpus petition. 4. (iii) As per direction of this Court, the mother of the children appeared before this Court on 10.07.2013. 3. Taking into account the affidavit filed by the mother of the children, namely, Prarthana Packiam, she is impleaded as petitioner No.2 in this habeas corpus petition. 4. We have heard the matter at Chambers on more than one occasion and heard in detail the views expressed both by the second petitioner/wife and also the third respondent/husband. 5. Marriage counselling also was provided to them and a report dated 26.07.2013 of the consultant/Psychologist was received. 6. In the interregnum, the second petitioner and the third respondent shared custody of the children. 7. To this extent, there is no dispute: The third respondent and the second petitioner, husband and wife, have been resident in Australia since 2009. Both children were born in Australia and they are Australian citizens. Owing to certain differences of opinion, the second petitioner and the third respondent lived separately. The second petitioner had custody of the children. The third respondent husband used to visit over the weekends. While so, on 24.06.2013, the third respondent took custody of the children and came to India. 8. It is apparent that the minor children were not ordinarily resident in India, when a petition in G.W.O.P.No.2377 of 2013 was moved on 28.06.2013 by the third respondent seeking an order of interim custody of the minor children. 11. In V. Ravichandran (Dr) V. Union of India and Others, (2010) 1 SCC 174 , the Hon'ble Apex Court held as follows: 31. Do the facts and circumstances of the present case warrant an elaborate enquiry into the question of custody of minor Adithya and should the parties be relegated to the said procedure before an appropriate forum in this country in this regard? In our judgment, this is not required. 32. Admittedly, Adithya is an American citizen, born and brought up in the United States of America. He has spent his initial years there. The natural habitat of Adithya is in the United States of America. As a matter of fact, keeping in view the welfare and happiness of the child and in his best interests, the parties have obtained a series of consent orders concerning his custody/parenting rights, maintenance, etc. from the competent courts of jurisdiction in America. The natural habitat of Adithya is in the United States of America. As a matter of fact, keeping in view the welfare and happiness of the child and in his best interests, the parties have obtained a series of consent orders concerning his custody/parenting rights, maintenance, etc. from the competent courts of jurisdiction in America. Initially, on 18-4-2005, a consent order governing the issues of custody and guardianship of minor Adithya was passed by the New York State Supreme Court whereunder the court granted joint custody of the child to the petitioner and Respondent 6 and it was stipulated in the order to keep the other party informed about the whereabouts of the child. In a separation agreement entered into between the parties on 28-7-2005, the consent order dated 18-4-2005 regarding custody of minor son Adithya continued. 35. The facts and circumstances noticed above leave no manner of doubt that merely because the child has been brought to India by Respondent 6, the custody issue concerning minor child Adithya does not deserve to be gone into by the courts in India and it would be in accord with principles of comity as well as on facts to return the child back to the United States of America from where he has been removed and enable the parties to establish the case before the courts in the native State of the child i.e. the United States of America for modification of the existing custody orders. There is nothing on record which may even remotely suggest that it would be harmful for the child to be returned to his native country." That in the case cited there were earlier proceedings before the Court in a foreign land and in the instant case, there was not, cannot be of too much significance for at paragraphs 29 and 30 it is explained: 29.While dealing with a case of custody of a child removed by a parent from one country to another in contravention of the orders of the court where the parties had set up their matrimonial home, the court in the country to which the child has been removed must first consider the question whether the court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from which the child was removed and all aspects relating to the child’s welfare be investigated in a court in his own country. Should the court take a view that an elaborate enquiry is necessary, obviously the court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare of the child including stability and security, loving and understanding care and guidance and full development of the child’s character, personality and talents. While doing so, the order of a foreign court as to his custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case. 30. However, in a case where the court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the jurisdiction of the court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the court may leave the aspects relating to the welfare of the child to be investigated by the court in his own native country as that could be in the best interests of the child. The indication given in McKee v. McKee that there may be cases in which it is proper for a court in one jurisdiction to make an order directing that a child be returned to a foreign jurisdiction without investigating the merits of the dispute relating to the care of the child on the ground that such an order is in the best interests of the child has been explained in L (Minors), In re and the said view has been approved by this Court in Dhanwanti Joshi . Similar view taken by the Court of Appeal in H. (Infants), In re has been approved by this Court in Elizabeth Dinshaw. Paragraphs 23 to 25 of the decision of the Apex court in Ruchi Majoo v Sanjeev Majoo ( 2011 (6) SCC 479 ) read as follows: "23. Section 9 of the Guardians and Wards Act, 1890 makes a specific provision as regards the jurisdiction of the court to entertain a claim for grant of custody of a minor. While sub-section (1) of Section 9 identifies the court competent to pass an order for the custody of the person of the minor, sub-sections (2) and (3) thereof deal with courts that can be approached for guardianship of the property owned by the minor. Section 9 (1) alone is, therefore, relevant for our purpose. It says: “9. Court having jurisdiction to entertain application.—(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.” 24. It is evident from a bare reading of the above that the solitary test for determining the jurisdiction of the court under Section 9 of the Act is the “ordinary residence” of the minor. The expression used is “where the minor ordinarily resides”. Now 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. 25. The factual aspects relevant to the question of jurisdiction are not admitted in the instant case. 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. 25. The factual aspects relevant to the question of jurisdiction are not admitted in the instant case. There are serious disputes on those aspects to which we shall presently refer." While in the decision above cited the factual aspects relevant to the question of jurisdiction were not admitted, in the instant case, they are. 12. Finding that petitioners have approached this court with utmost promptitude, that the minors were ordinarily resident in Australia, that no elaborate enquiry into the merits of the rival contentions is called for and it would be appropriate to allow the Courts of the country of the minors natural habitat to decide upon custody and related issues, this court allows this petition. Accordingly, third respondent hereby is directed to place minor children in the custody of the second petitioner. 13. The disposal of this petition on the above lines will not preclude third respondent from his taking recourse to such proceedings as available in law. We state no more than that third respondent cannot have recourse to proceedings under section 17 of the Guardians and Wards Act, 1890, as the minors were not ordinarily resident in India and that it would be best to leave issues relating to their custody to Courts in their country of habitat, Australia. 14. Learned counsel for petitioners informs that the passport of the minors are held by third respondent and therefore, a direction may be issued to him to handover the same to the second petitioner. If a direction as prayed for is not issued, the benefit flowing to second petitioner by virtue of this order would stand negated. Accordingly, third respondent is directed to forthwith handover the passports of the minor children to the second petitioner.