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2015 DIGILAW 343 (ORI)

Dilip Kr. Behera v. Puspanjali Behera

2015-05-15

S.K.SAHOO, VINOD PRASAD

body2015
JUDGMENT : Vinod Prasad, J. In a spousal dispute the most vulnerable position is that of the child who bears the most deleterious and detrimental consequence of acrimony between his/her parents, who seldom considered his/her future life prospects and to nurture him/her in healthy atmosphere full of love, affection and caring. Whichever argument, howsoever undignified it may be, is raised to get an edge over the other. In such disputes, one of the most contentious sections invariably sought to be explained, determined and decided is section 9 of the Guardians and Wards Act, 1890 (hereinafter referred to as “the Act”) concerning jurisdiction of the Court empowered to entertain a petition for the custody of the child/children, and the present appeal is one of such cases where section 9(1) of the Act has been mooted for determination in the given set of factual matrix stated herein below:- 2. Appellant-father Dilip Kumar Behera, resident of district Ganjam tied nuptial knot with respondent Puspanjali Behera on 23.02.2004 as per Hindu rites and customs at Aska in the district of Ganjam. Since the appellant was having his vocation at Rourkela, post-marriage the spouses came to Rourkela and stayed there. On 16.06.2008, the male child-Nilesh was born. Thereafter, family feud between the spouses cropped up and attained such severity that respondent-mother had to leave her husband, and she with Nilesh, the infant boy, returned to her parental house at Berhampur on 13.02.2010. Since that date, the spouses are living separately. 3. Since the dispute could not be resolved amicably and none of the parties budged, the appellant-husband resorted to legal proceeding by filing Civil Proceeding No. 219 of 2012 for a decree of judicial separation under the Hindu Marriage Act, 1955. Notice was issued to the wife, but it seems that she did not contest and consequently the decree of judicial separation favouring the appellant husband was passed on 13.02.2013. Thereafter, as it emerges on scanning of the record, that the appellant-father filed an application under Section 25 of the Act for restoring custody of his son claiming himself to be his natural guardian. Thereafter, as it emerges on scanning of the record, that the appellant-father filed an application under Section 25 of the Act for restoring custody of his son claiming himself to be his natural guardian. As the pleading in this appeal goes, the reason slated by the appellant-father prompting him to file the application under Section 25 of the Act, was that the son Nilesh was reluctant to go with his ‘mother’, but the respondent with ulterior motive to take revenge with the appellant took away the son. The appellant has bitter experience in past of witnessing the barbarous assault upon the son by the respondent on silly maters. Nilesh is a meritorious student, who was reading in a well known convent school at Rourkela and his career was at stake. The appellant has got medical facilities from his employer besides education. Last but not the least, he had requested the respondent wife to bring back his son which went unheeded. 4. Learned Judge, Family Court, Rourkela registered appellant’s petition under Section 25 of the Act on 08.08.2013 as Civil Proceeding No. 207 of 2013 and directed the office to put up its note. On next two subsequent dates i.e., 16.08.2013 and 19.09.2013, the appellant-father was absent and no proceeding could take place to determine the jurisdiction of the Court to entertain the aforesaid application as the office had indicated that the same has been filed in a wrong jurisdiction. On 23.10.2013, the learned Judge, Family Court, Rourkela heard the appellant-father on the question of jurisdiction and vide impugned order dated 01.11.2013 rejected his contentions regarding vesting of jurisdiction in him and, therefore, directed to file the petition before the appropriate Court, which decision is now under challenge in this matrimonial appeal under Section 47(c) of the Act. 5. We have heard learned counsel for both the sides. 6. The grounds for challenge to the impugned order have been inked in the memo of appeal. It has been stated that the impugned order is illegal, arbitrary, erroneous and against the settled principle of law and erroneous appreciation of the statute. Further challenge is that the learned Judge, Family Court has relied upon the unconcerned decisions to reject the claim of the appellant-husband. It has been stated that the impugned order is illegal, arbitrary, erroneous and against the settled principle of law and erroneous appreciation of the statute. Further challenge is that the learned Judge, Family Court has relied upon the unconcerned decisions to reject the claim of the appellant-husband. It had failed to understand the language of Section 25 of the Act, which envisages that for the welfare of the ward, the Court shall pass an order for return of the child. Further snipping is on the ground that the son was born at Rourkela and he was taken away from the custody of the natural guardian at Rourkela and therefore, Rourkela Family Court had jurisdiction. In this context, it was further stated that the application under Section 25 of the Act was filed immediately after the son was taken away from the custody of his father and therefore, his ordinary place of residence would be at Rourkela. Other objection to the impugned order is that there was no legal impediment or prohibition in making an order under Section 25 of the Act depriving the minor from getting better education, medical and other benefits. 7. Arguing conversely and giving an impetus to the impugned judgment, learned counsel for the respondent-wife urged that the view taken by the Judge, Family Court, Rourkela was appropriate, just and legal. The ordinary place of residence of the ward/minor, in the peculiar facts and circumstances of the case can never be said to be at Rourkela and therefore, the Family Court at Rourkela lacked inherent jurisdiction as the prohibition contained in Section 9(1) of the Act debars his jurisdiction. 8. Both the sides have relied upon various decisions, which shall be referred to in the subsequent part of the judgment at appropriate places. 9. Section 9 of the Act, which is the contentious issue between the rival sides reads as follows:- “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. 9. Section 9 of the Act, which is the contentious issue between the rival sides reads as follows:- “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. (2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property. (3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction. Here we are only concern with the interpretation of section 9(1) of the Act as rest of the two sub-sections are immaterial for determining the dispute between the spouses. Even in section 9(1), what is required to be determined is that in the present set of facts what will be the place of ordinary residence of the ward/minor Nilesh, as section 9(1) confers the power only on such a district court who has jurisdiction over the place where the minor ordinarily resides. 10. Place of ordinary residence in various dictionaries and lexicons has been described differently. In one of the law lexicons, ‘ordinarily’ does not mean solely or in the main. It only means regularly and habitually, not casually whether it be for a larger or smaller portion of the day. In yet another lexicon, the word ‘ordinarily’ means “habitually and not casually; it may not obviously means always”. The plain and popular meaning of the word ordinarily means usually enormously and exceptionally as contrasted with extra-ordinarily. Thus, there is no gain saying that the aforesaid word ‘ordinarily’ has been given different contextual meanings in different factual situations. 11. Guardians and Wards Act is a beneficial legislation for the benefit of the minor/ward. The plain and popular meaning of the word ordinarily means usually enormously and exceptionally as contrasted with extra-ordinarily. Thus, there is no gain saying that the aforesaid word ‘ordinarily’ has been given different contextual meanings in different factual situations. 11. Guardians and Wards Act is a beneficial legislation for the benefit of the minor/ward. The object and legislative intent is well perceptible from the various provisions of the Act, reading of which without ambiguity indicates that the same has only been for the benefit of the ward/minor. The interpretation of the term “ordinarily resides”, therefore, has to be made in such a background. Since the term “ordinarily resides” is to be interpreted contextually, therefore, it cannot be divested of the factual matrix. It is not a pure question of law, but much is dependent upon the concerned facts and circumstances. The solitary test for determining the scope of the term “ordinarily resides”, therefore, depends upon the pleadings of the parties and the preceding happenings in between them. While analyzing the said aspect, the Hon’ble Supreme Court in the case of Ruchi Majoo Vrs. Sanjeev Majoo, 2011(I) OLR (SC) 1212, in paragraph-14 has observed thus”- “It is evident from a bare reading of the above that the solitary test for determining the jurisdiction of the Court under Section 9 if 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…..” 12. We, therefore, propose to examine the facts of the present appeal, which are discernible from the record. 13. The admitted facts are that the marriage between the appellant-husband and the respondent-wife was solemnized on 22.02.2004 at Aska. It is also not in dispute that the ward/minor Nilesh was born at Rourkela on 16.06.2008. We, therefore, propose to examine the facts of the present appeal, which are discernible from the record. 13. The admitted facts are that the marriage between the appellant-husband and the respondent-wife was solemnized on 22.02.2004 at Aska. It is also not in dispute that the ward/minor Nilesh was born at Rourkela on 16.06.2008. Indisputable also is the fact that there were differences and dissentions between the spouses, because of which on 13.02.2010, the respondent-wife along with the infant child came back to her father’s house at Berhampur, and since then both the parents are living separately away from each other. Further, it is not in dispute that earlier to filing of the application under section 25 of the Act, the appellant-husband had filed Civil Proceeding No.219 of 2012 seeking a decree of judicial separation, which ultimately was passed ex parte on 13.02.2013, as the wife did not participate in the legal battle at that stage. It is further evident that the present application under section 25 of the Act was filed near about six months after the decree of judicial separation was passed, and during this period the ward/minor remained with the mother. In fact, he was already with the mother ever since 13.02.2010, when both the spouses parted company of each other. Thus, on the day on which the application under section 25 of the Act was presented in Court and was registered, more than three and half years had already elapsed since the appellant-father had separated from his son/ward Nilesh. 14. At this juncture, we would like to take stock of another provision, i.e., Section 6 of the Hindu Minority and Guardianship Act, 1956. A glimpse of the aforesaid provision leaves no manner of doubt that the only guardian of a Hindu minor respecting the minor’s person as well as property in case of a boy or an unmarried girl is the father, and after him, the mother. But, the proviso attached to the said section is to the effect that the custody of a minor, who has not completed the age of five years, shall ordinarily be with the mother. Nilesh was born on 16.06.2008 and, therefore, the date on which the spouses parted, i.e., 13.02.2010, his age was just 2 years and 3 months. But, the proviso attached to the said section is to the effect that the custody of a minor, who has not completed the age of five years, shall ordinarily be with the mother. Nilesh was born on 16.06.2008 and, therefore, the date on which the spouses parted, i.e., 13.02.2010, his age was just 2 years and 3 months. Therefore, his care and custody with the mother, according to section 6(a) proviso of the Hindu Minority and Guardianship Act was neither illegal nor unjust. Further, it is evident that it has not been pleaded by the father that during this period, i.e., after the spouses had parted company of each other, he had made any effort to get back his child. No such application was filed by him when he had approached the Court at the very first instance seeking a judicial separation. It is well writ large that five months after the decree was passed, the father woke up from his deep slumber to invoke the authority of the Court under section 25 of the Act. We note all these facts in extenso only for the reason that the background facts compel us to determine without any ambiguity the ordinary place of residence of the ward/minor Nilesh. We further find from the record the torture meted out to the wife. Since two and half years, the minor Nilesh is in the care and custody of his mother. As stated above, the paramount consideration is the welfare of the child. 15. At this juncture, it will but be appropriate to advert to some of the decisions relied upon by either side. Learned counsel for the appellant cited before us the decisions in (1) Acharya Sri Kundari Maharaj Vrs. Smt. Indra and another, AIR 2004 Rajsthan 90; (2) Jagdish Chandra Gupta Vrs. Dr. Kumari Vimla Gupta, 2003(3) AWC 2133 ; (3) Konduparthi Ventateswarlu Vrs. Ramavarapu Viroja Nandan and others, AIR 1989 Orissa 151; (4) Smt. Jeewanti Pandey Vrs. Kishan Chandra Pandey, AIR 1982 SC 3 ; (5)Jagir Kaur and another Vrs. Jaswant Ssingh, AIR 1963 SC 1521 ; (6) Union of India and others Vrs. Dudh Nath Prasad, AIR 2000 SC 524; and (7) Bhagwan Dass and another Vr. Kamal Abrol and others, AIR 2005 SC 2583 . 16. Kishan Chandra Pandey, AIR 1982 SC 3 ; (5)Jagir Kaur and another Vrs. Jaswant Ssingh, AIR 1963 SC 1521 ; (6) Union of India and others Vrs. Dudh Nath Prasad, AIR 2000 SC 524; and (7) Bhagwan Dass and another Vr. Kamal Abrol and others, AIR 2005 SC 2583 . 16. In the first decision, the appellants were the grandfather and grandmother of the minor children Rohit and Mohit and they had approached the Family Court at Jodhpur for their custody. Father of the children Purandass had died on 09.08.1999. Post demise of the husband, the wife Smt. Indira was given compassionate appointment in the Municipal Corporation, Jodhpur, from where she sought transfer to Jaipur and settled there. The mother subsequently solemnized second marriage with one Krishna Kumar, with whom she gave birth to a female child. After vetting through the pleadings and looking to the facts and circumstances, in the aforesaid decision a Division Bench of Rahsthan High Court rejected the claim of the appellant-grand parents and held that the ordinary place of residence will be with the mother of the wards at Jaipur. This decision, in our opinion, is against the case pleaded by the appellant himself. As regards the decision in Jagdish Chandra Gupta (supra), the same was rendered in altogether different facts and circumstances, which are not akin to the facts of the present appeal. That was a case where the child was adopted. The mother had paralysis stroke and, therefore, she along with the minor came to Kanpur. That is not the facts situation here. However, it was observed in the aforesaid decision in paragraph-20 as under:- “The expression ‘ordinarily resides’ and residing at the time of the application are not synonymous and stipulate different situations which are not interchangeable. The place where the minor ordinarily resides indicates a place where the minor is expected to reside but for the special circumstances. It excludes places to which the minor may be removed at or about the time of filing of the application for the enforcement of the guardianship and custody of the minor. The place where the minor ordinarily resides indicates a place where the minor is expected to reside but for the special circumstances. It excludes places to which the minor may be removed at or about the time of filing of the application for the enforcement of the guardianship and custody of the minor. The place has to be determined by finding out as to whether the minor was ordinarily residing and where such residence would have continued but for the recent removal of the minor to different place.” So far as the decision in Konduparthy Ventateswarlu (supra) is concerned, what we find is that the same was also rendered in altogether different facts and circumstances. The appellants were in the custody of the minor child of respondent no.1 after the death of the wife of respondent no.1 at Visakhapatnam. Since the appellants were the in-laws of respondent no.1, they refused to return the child to the father-respondent no.1. Respondent no.1 approached the District Judge, Ganjam under section 25 of the Act, who rejected the same opining that it is the District Judge having jurisdiction in the place where the minor ordinarily resides can entertain such an application. The Division Bench of this Court, after examining the facts and circumstances, ultimately concluded that the District Judge, Ganjam, who was approached by respondent no.1-father under section 25 of the Act, had the jurisdiction because the ordinary place of residence of the child would be with his father. The deceased mother had taken the child along with her to her parental house, where she had gone for the purpose of treatment, and, therefore, it will not make Visakhapatnam, where her parents lived, the ordinary place of residence of the child. This decision, in our humble opinion, goes against the case pleaded by the appellant. The decision in Smt. Jeewanti Pandey (supra) has been rendered in entirely different set of circumstances. In paragraphs-12 and 13 of the said decision, it has been observed as below:- “12. In order to give jurisdiction on the ground of ‘residence’, something more than a temporary stay is required. It must be more or less of a permanent character, and of such a nature that the court in which the respondent is sued, is his natural forum. In order to give jurisdiction on the ground of ‘residence’, something more than a temporary stay is required. It must be more or less of a permanent character, and of such a nature that the court in which the respondent is sued, is his natural forum. The word ‘reside’ is by no means free from all ambiguity and is capable of a variety of meanings according to the circumstances to which it is made applicable and the context in which it is found. It is capable of being understood in its ordinary sense of having one’s own dwelling permanently as well as in its extended sense. In its ordinary sense ‘residence’ is more or less of a permanent character. The expression ‘resides’ means to make an abode for a considerable time; to dwell permanently or for a length of time, to have a settled abode for a time. It is the place where a person has a fixed home or abode. In Webster’s Dictionary, ‘to reside’ has been defined as meaning ‘to well permanently or for any length of time’, and words like ‘dwelling place’ or ‘abode’ are held to be synonymous. Where there is such fixed home or such abode at one place the person cannot be said to reside at any other place where he had gone on a casual or temporary visit, e.g., for health or business or for a change. If a person lives with his wife and children in an established home, his legal and actual place of residence is the same. If a person has no established home and is compelled to live in hotels, boarding houses or houses of others, his actual and physical habitation is the place where he actually or personally resides. 13. It is plain in the context of Clause (ii) of Section 19 of the Act that the word ‘resides’ must mean the actual place of residence and not a legal or constructive residence; it certainly does not connote the place of origin. The word ‘resides’ is a flexible one and has many shades of meaning, but it must take its colour and content from the context in which it appears and cannot be read in isolation. The word ‘resides’ is a flexible one and has many shades of meaning, but it must take its colour and content from the context in which it appears and cannot be read in isolation. It follows that it was the actual residence of the appellant, at the commencement of the proceedings, that had to be considered for determining whether the District Judge, Almora had jurisdiction or not. That being so, the High Court was clearly in error in upholding the finding of the learned District Judge that he had jurisdiction to entertain and try the petition for annulment of marriage filed by the respondent under Section 12 of the Act.” The said decision is also of no help to the appellant and it does not support the submission of the learned counsel for the appellant. Coming to the decision in Jagir Kaur (supra), the same was rendered under the Code of Criminal Procedure in respect of maintenance and, therefore, has got no relevance to the facts of the present appeal. The decision in Union of India Vrs. Dudh Nath Prasad relates to maintenance of Scheduled Castes and Scheduled Tribes order and, therefore, is also not relevant and germane to be discussed in detail. The decision in Bhagwan Dass (supra), which is the last in the series, is also not relevant as it is relatable to Hindu Marriage Act and not the Guardians and Wards Act. 17. On the other hand, the decisions, which were relied upon and cited before us by the learned counsel for the respondent-wife are (1) Ruchi Majoo Vrs. Sanjeev Majoo, 2011(I) CLR (SC) 1212; (2) Harihar Prasad Jaiswal Vrs. Suresh Jaiswal and others, AIR 1978 AP 13 ; and (3) Smt. Vimala Devi Vrs. Smt. Maya Devi, AIR 1981 Rajasthan 211. The observations made by the Hon’ble Apex Court in the first decision, relevant for the present purpose, have already been indicated at page-5 of this judgment. Sanjeev Majoo, 2011(I) CLR (SC) 1212; (2) Harihar Prasad Jaiswal Vrs. Suresh Jaiswal and others, AIR 1978 AP 13 ; and (3) Smt. Vimala Devi Vrs. Smt. Maya Devi, AIR 1981 Rajasthan 211. The observations made by the Hon’ble Apex Court in the first decision, relevant for the present purpose, have already been indicated at page-5 of this judgment. In the next decision, the Hon’ble Apex Court has dealt with the concerned aspect from paragraph-4 onwards and has been pleased to lay down the following law:- “If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian. The expression ‘Court’ has been defined under S. 4(5)(a) as the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian. Hence we have to see which is the District Court that has got jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian. This is dealt with by S. 9 which says that 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. From these provisions, it is clear that an application under S. 25 of the Guardians and Wards Act has to be filed in the District Court having jurisdiction in the place where the minor ordinarily resides. Hence the crucial question which falls for consideration is what is meant by the expression ‘Where the minor ordinarily resides’. In Lalita Twaif v. Paramatma Prasad (AIR 1940 A11 329), it is pointed out that the minor’s actual place of residence at the time of application under S. 9(1) does not determine the jurisdiction of the Court. It must be proved where the minor ordinarily resides as laid down in S. 9(1) of the Act. In Lalita Twaif v. Paramatma Prasad (AIR 1940 A11 329), it is pointed out that the minor’s actual place of residence at the time of application under S. 9(1) does not determine the jurisdiction of the Court. It must be proved where the minor ordinarily resides as laid down in S. 9(1) of the Act. Relying on this decision, the learned counsel for the petitioner contends that the minor must be deemed to be ordinarily residing at Hyderabad which is the place of residence of her natural guardian who is the father. In the aforesaid case, the facts are that the mother took away the minors to Shadibad where her parents resided about three or four months before the application was made. Before that the minors and their mother were living for several years in Benaras where her husband had lived, within the jurisdiction of the District Judge at Benaras. It was under those circumstances the Court has held that the Court at Benaras had jurisdiction as Beneras was the place where the minor should be deemed to have their ordinary residence. The mere fact that the minor had been taken by their mother to Shadiabad when she went for a visit, would not make Shadiabad as the place of ordinary residence of the minor. I do not see how this decision helps the case of the petitioner and the said case is easily distinguishable on two grounds. One is that the mother had taken the children to her father’s place to which she goes off an on, on some visits and it was only about three or four months before the filing of the application that the minors were taken away to their mother’s place at Shadiabad and were staying there. But in the present case from the pleadings, it appears that the minor girl was living with the mother from the year 1970 either at Nagpur or at Tumsar in Maharashtra State and the present application has been filed in the year 1975. Further it was not for the purpose of any visit that the minor was taken by respondent No.3, but due to estrangement between herself and the petitioner whatever the reasons might be. Hence, this decision is of no use to the petitioner. Further it was not for the purpose of any visit that the minor was taken by respondent No.3, but due to estrangement between herself and the petitioner whatever the reasons might be. Hence, this decision is of no use to the petitioner. Coming to the last decision, i.e., Smt. Vimala Devi (supra), the opinion of the Hon’ble Single Judge of the Rajsthan High Court is contained in paragraphs-11 to 14, which is reproduced herein below:- “11. Section 4(5) of the Act defines ‘the Court’. Sub-clause (ii) of Clause (b) of sub-section (5) of Section 4 reads as follows:- (ii) in any matter relating to the person of the ward, the District Court having jurisdiction in the place where the ward for the time being ordinarily resides; or Section 9 relates to the jurisdiction of the Court to entertain an application. It is reproduced in extenso:- (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) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property. (3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction. Section 25(1) amongst others provides that if a ward is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of the guardian, may make an order for his return. Section 25(1) amongst others provides that if a ward is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of the guardian, may make an order for his return. An analysis of S. 9 shows (i) that if an application is for the guardianship for the person of the minor, it is required to be made to the District Court having jurisdiction in the place where the minor ‘ordinarily resides’; (ii) if the application is with respect to the guardianship of the property of the minor, it can be made, (a) either to the District Court having jurisdiction in the place where the minor ‘ordinarily resides’, or (b) to a District Court having jurisdiction in a place where he has property; and (iii) if an application is made with respect to the guardianship of the property of a minor to a District Court other than that having jurisdiction I the place where the minor ‘ordinarily resides’, the Court has been empowered to return the application if in its opinion that application can be disposed of more justly or conveniently by any other District Court having jurisdiction. Thus, it follows from Section 9 of the Act that if a composite application for the guardianship of the person and property of the minor is made, it may be made to the District Court having jurisdiction in the place where the minor ordinarily resides. This is the case before me as a composite application for the guardianship of the person and property of the minor was moved before the District Judge, Bhilwara stating that the minor ordinarily resides within the jurisdiction of the District Court, Bhilwara and where he has property also. As a matter of fact, as is clear from the impugned order of the learned District Judge that on behalf of the appellant, it was submitted that as the minor (Sushree Meena) ordinarily resided at the time of the presentation of the application within the jurisdiction of the District Court, Bhilwara, that Court has jurisdiction to hear the application. It has not rightly been disputed that a question whether or not a minor ordinarily resides within the jurisdiction of the Court has to be decided on the facts and circumstances of each case. It has not rightly been disputed that a question whether or not a minor ordinarily resides within the jurisdiction of the Court has to be decided on the facts and circumstances of each case. This has necessitated the examination of the question whether the minor Sushree Meena will be deemed to have ordinarily resided at Bhilwara within the jurisdiction of the District Court, Bhilwara from where Smt. Maya Devi (respondent No.1) removed her from the custody of her natural guardian Sushil Kumar. 12. In Ram Sarup’s case ( AIR 1952 All 79 ). A Division Bench of the Allahabad High Court held that the place of resident of the minors at the time of application should be held to be the place where they resided with their mother. 13. A learned single Judge of the Allahabqd High Court in Smt. Kamla’s case ( AIR 1956 All 328 ) had occasion to consider the words ‘Ordinarily resides’ as used in S. 9 of the Act. It was observed as follows (at p. 330) The past abode, for however long a period it may be, cannot be considered to be the place where the minors are residing. The words used are in the present tense, i.e., where the minor ordinarily resides. In that case, the view taken by the learned Judges in Lakshman v. Ganga Ram, AIR 1932 Bom 592 was dissented from and after following the observations made in Ram Sarup’s case ( AIR 1952 All 79 ) and noticing Smt. Vimla Bai’s case (AIR 1951 Nag 179), the learned Judge reached the conclusion that as the mother is actually residing at Roorkee and, therefore her children would also be deemed to be residing at Roorkee. 14. The same learned single Judge again explained the expression ‘ordinarily resides’ as used in Section 9 of the Act in Jamauna Prasad’s case (AIR 1969 All 285). He, inter alia, noticed Vimlabai’s case (AIR 1951 Nag 179), Ram Sarup’s case ( AIR 1952 All 79 ), Chandra Kishore’s case ( AIR 1955 All 611 ) and Smt Kamla’s case ( AIR 1956 All 328 ) and observed as under (at p. 288 of AIR 1960 All). In my opinion the words ‘ordinarily resides’ have a different meaning than ‘residence at the time of the application’. Both may be identical or my be different. That would depend on the facts of each particular case. In my opinion the words ‘ordinarily resides’ have a different meaning than ‘residence at the time of the application’. Both may be identical or my be different. That would depend on the facts of each particular case. To interpret the words ‘where the minor ordinarily resides’ to mean ‘where the minor actually resides at the time of application’ may in some cases amount to rendering nugatory all the provisions of the Guardians and Wards Act. It may be that persons who have absolutely no right may remove the minor forcibly and keep him at a distant place, when the application is made, where the minor was ordinarily residing, and objection may be taken that the application was not entertainable. In that event, the residence may depend on the machinations of recalcitrant persons. It may be that in the Bombay case on the facts the Bench had come to the conclusion that the place where he was residing at the time of the application was the place where he was ordinarily residing. But it cannot be held as a proposition of law that it will always be the same.” 18. In view of the aforesaid decisions of various Courts, when the facts of the present appeal are expatiated and scanned, it becomes unambiguous that Nilesh was residing with his mother since last more than three years, who had left the company of her husband not to return again. The appellant-husband also never tried to resolve the dispute. On the other hand, he filed a suit for judicial separation. When Nilesh parted the company of his father, he was only two and half years of age. Therefore, his ordinary place of residence will be that of his mother (respondent no.1). At no point of time, the minor was taken away out of the care and custody of the mother, and mother being the second lawful guardian and the child being living with his mother, his place of ordinary residence would only be that of his mother. We are of the considered opinion that there is a world of difference between ‘would have resided’ and ‘ordinary place of residence’. The connotation ‘would have resided’ indicates the prospective place of residence, whereas ‘ordinarily resides’ is the present place of residence, which is not casual or temporary. There is also difference between the expression ‘should have resided’ and ‘ordinary residence’. The connotation ‘would have resided’ indicates the prospective place of residence, whereas ‘ordinarily resides’ is the present place of residence, which is not casual or temporary. There is also difference between the expression ‘should have resided’ and ‘ordinary residence’. The connotation ‘should have resided’ indicates intention of the person where to reside, whereas the expression ‘ordinary residence’ means the place where he is already residing. Section 9(1) does not speak of ‘would have resided’ or ‘should have resided’. It has nothing to do with the legal entitlement respecting residence of the minor. If the minor ordinarily resides at a place of his care and custody, which is not illegal or sans law, ordinary place of residence would be where he has resided. As stated, when the mother left the company of her husband, the father of the minor, although father is the first natural guardian, the child, who was only an infant of two and half years, would ordinarily reside with the mother, which conclusion is not difficult to perceive. 19. In our estimation, the learned Judge, Family Court at Rourkela committed no illegality or infirmity in determining the jurisdiction not to entertain an application under section 25 of the Act filed on behalf of the appellant-husband. 20. In the net result, we do not find any merit in this Matrimonial Appeal, which, for the aforesaid reasons, stands dismissed. I agree.