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Judgment
Per Sujit Narayan Prasad, J.
The instant appeal under section 19(i) of the Family Court Act, 1984 is directed against the order/judgment dated 06.11.2025 and the decree signed on 14.11.2025 passed in Original Suit No.105 of 2024 by the learned Addl. Principal Judge, Addl. Family Court, Deoghar (in short, Family Judge) whereby and whereunder the petition filed under Order VII Rule 11 of the Code of Civil Procedure by the respondent herein has been allowed and consequently the petition filed under section 13 (6 & 7) of Hindu Minority and Guardianship Act, 1956 by the appellant herein for appointment of the guardian of the person and property of the minor, namely, Aastha Ray has been dismissed.
The brief facts of the case as pleaded in the plaint needs to be referred herein as:
The petitioner (appellant herein) is own mother of the minor daughter Aastha Ray who was born on 27.03.2018 from the wedlock of the petitioner and respondent-Ajit Kumar.
The marriage ceremony of the petitioner and respondent was solemnized on 04.05.2017 at Deoghar and after marriage both went to Bangalore at their workplace.
Before the solemnization of marriage between the petitioner and respondent, the respondent had solemnized first marriage with Shwetha S. Joshi on 20.10.2009. The respondent did not disclose about his first marriage before the petitioner.
The petitioner came to know about the fact of previous marriage of the respondent on 24.08.2022.
It is averred that from the wedlock of Shwetha S. Joshi and the respondent one male child was born on 25.07.2013, namely, Ansh Ray who is now living at U.K.
The respondent financially harassed the petitioner even before marriage which continued to an extreme level after marriage.
The respondent demanded huge amount of money from the petitioner in the form of repayable loans in September, 2016 before the wedding for the purpose of constructing his house in Bangalore. The petitioner with trust on the respondent paid Rs.14,24,000/- to him via NEFT/CHQ on several dates from 03.10.2016 to 10.04.2017.
After marriage the respondent started making illegal demands of the money from the petitioner for his personal as well as family requirements.
The petitioner was forced to borrow a total of Rs.44,88,000/- as personal loan amount to meet the financial requirement of the respondent.
Thereafter, the petitioner continued to demand of money from the petitioner and when the petitioner shown her inability to pay the same, he deserted her and thrown her out of the house on 27.02.2022 and, since then, the petitioner is residing with her parents.
Being compelled with the action of the respondent who started torturing the petitioner, she has filed a suit for judicial separation from the respondent before Family Court, Deoghar. She has also lodged a criminal case on 23.10.2022 against the respondent-husband under sections 498A, 495, 420, 34 IPC and 3/4 of Dowry Prohibition Act being Deoghar Mahila P.S Case No.41/22.
The respondent has also filed a suit for divorce against the petitioner in the Court at Bangalore for which a Transfer Petition is pending before Hon’ble Apex Court for transfer of the case to Deoghar.
The petitioner on several occasion approached the respondent and requested him to allow her to meet with her minor child but the respondent refused the said request.
The respondent has no permanent job and thus, he has to travel from one place to another in search of job and for that reason he could not take proper care and protect the best interest of the minor child.
The petitioner has put continuous effort to be in touch with her only child and she visited her school, namely, prestige School, L.K.G to see her but she got shocked and surprised to know that the name of her daughter has been changed from “Aastha Ray” to “Aarohi Rai”.
When the minor girl expressed her feeling about the petitioner with pleasure to the respondent then the minor child was forcefully removed from the school without any proper notice or obtaining any Transfer Certificate and she has been deprived of good education and welfare.
The petitioner lodged a complaint in Shivaginagar Police Station for help on 13.03.2023 whereafter the respondent’s father appeared there and confirmed that they will take care of her and will allow the petitioner to meet the minor child.
Thereafter, the respondent moved to an undisclosed location and did not allow the petitioner to get in touch with her only minor child.
The minor child is not going to any school for her education for the last one year and thus, the respondent has jeopardized her education and career.
In absence of mother’s love and affection the minor child has become very sad and furious which affected her proper upbringing.
On the aforesaid ground, the appellant has prayed for following reliefs:
the petitioner may be appointed the guardian of the person and property of the said minor child, and
the minor may be given in custody of the petitioner for her welfare.
It needs to mention herein that in Original Suit No.105 of 2024 upon issuance of notices, the respondent has appeared and filed a written statement. The respondent has stated in his written statement inter alia on the maintainability of the suit for custody of the minor child stating that the present suit is not maintainable in present form and is liable to be dismissed in limine and in lack of territorial jurisdiction to entertain and try the present suit reason being that under section 9 (1) of Guardian and Wards Act an application for guardianship or custody of a minor, must be filed in the learned court having jurisdiction over the place where the minor ordinarily resides.
The factum of marriage between the parties is admitted. It is stated that the minor female child, namely, Aastha Ray @ Arohi aged about 7 years has been residing with the respondent at Bengaluru, Karnataka since her birth on 27.03.2018. It is stated that Bengaluru is her ordinary place of residence as she has been living there continuously under the care and custody of the respondent and the petitioner has filed the suit at Deoghar showing her own residence at Deoghar which do not confer jurisdiction. Therefore, the suit deserves to be dismissed for want of jurisdiction.
It is stated that the female child has been in the exclusive custody of respondent since birth and the petitioner has not made any prior effort to seek custody or visitation right indicating abandonment of her right. It is stated that the respondent and the petitioner met at Bengaluru and personal relation grew up in between both and thereafter both decided to get married after dissolution of marriage of respondent with his earlier wife. They decided to live together in live in relationship. During that time, the petitioner took Rs. 14,50,000/- from the respondent for business revival for her father which subsequently returned by her to the respondent in installments.
It is stated that the allegation of thrown out the petitioner from the house is totally false. The real fact is that the it was the petitioner who left matrimonial home voluntarily on 27.02.2022 deserting the respondent and the minor child without sufficient cause, thereafter respondent carrying the minor child with entire responsibility of her upbringing, education, medical care and emotional well-being.
The fact of cruelty meted upon the petitioner is denied by saying that neither any cruelty nor atrocity have ever been committed by the respondent, rather the petitioner is a persistence and documented patter of alcohol and suspected drug used by the petitioner resulting in frequent violent and erratic beahviour and in presence of minor also inflicted physical cruelty upon the respondent’s mother causing fracture, not only this petitioner abusive conduct take cutting all ties with her own family members who leaved her isolated.
It is stated that the petitioner has lodged false criminal case against the respondent to extort the illegal money from him with wild allegation rather the fact is that no occurrence taken place as alleged in F.I.R. It is denied that the petitioner never made genuine attempt to even to reconnect with minor child.
It is stated that the respondent and his family members have sufficient income as the respondent is an employee of Multinational company and the family of the respondent have stable income from agriculture, employment, Army pension as well as Real Estate holding empire to support of the minors needs.
It is stated that it is false to say that the name of the minor child has been changed as the official name of minor is Arohi Ray and the transfer of the school of the minor child was done for her welfare and safety as the child refused any proximity to her mother in presence of the officials of School.
It is stated that the petitioner forcibly entered into the respondent’s home with the help of paid activist; created nuisance and assaulted the father of respondent and falsely lodged the complaint against them, but during course of inquiry the police found the allegation was false with intent to harass the respondent.
It is stated that the minor female child is living with the respondent along with his parents who are providing stable education, health, care and emotional support. The minor child is enrolled in reputed C.B.S.E. School and is healthy and surviving. It is alleged that the minor child is in good environment and regularly supervised by the respondent and his parents, rather the petitioner is currently residing in Bengalour with a man having no lawful or family relationship where minor would be morally and socially unsafe.
It is stated that the minor child under the care of respondent is doing excellent in school emotionally secure healthy loving suitable and discipline environment. The respondent and his family are taking all cares contrary to the trauma and experience under the petitioner, the welfare of the female child being obtained age is best served with the respondent who has been her natural guardian and primary care given since birth.
It is stated that the minor child has developed strong emotion bonds with the respondent being the natural guardian of the minor child and his family in Bengaluru and any change in custody would cause irreparable harm to her psychological and physical development. The respondent has ensured the child holistic growth including education balance diet regular medical check -up extracurricular activities stable homely environment.
The respondent lastly prayed that the petitioner is not entitled to get any relief as claimed for and the petition for custody of minor child is fit to be dismissed with cost.
In needs to mention herein as has been taken note by the learned Family Judge in its order dated 06.11.2025 that the respondent has filed an application under Order VII Rule 11 CPC praying therein to dismiss the suit due to lack of jurisdiction which was allowed vide order dated 06.11.2025 which is impugned herein in the instant appeal.
Submission on behalf of the appellant:
Mr. Ankur Anand, the learned counsel appearing for the appellant has taken the following grounds while challenging the impugned judgment:
It has been contended that the learned Family Judge has not taken into consideration that the appellant is the mother and, as such, she is having better claim over the minor who needs guardianship/custody.
The learned trial Court has committed a gross error by not taking into consideration the issue of welfare of the child who can better be nourished by the mother and ignoring the said fact has dismissed the petition filed under section 10 of the said Act on the ground of lack of jurisdiction which is not at all permissible in law.
The learned Family Judge has erred in allowing the application under Order VII Rule 11 CPC despite the settled legal position that rejection of a plaint at the threshold is an exception and can be exercised only when lack of jurisdiction is apparent on the face of the plaint itself whereas in the instant case, the pleadings disclosed substantial facts conferring jurisdiction upon the Family Court at Deoghar.
The learned Family Court has erred in applying section 9(1) of the Guardians and Wards Act, 1890 without appreciating that the expression “ordinarily resides” is a mixed question of law and fact which requires adjudication after evidence and cannot be conclusively determined at the stage of Order VII Rule 11 CPC.
The learned Family Court has failed to take into consideration that multiple matrimonial proceedings are ongoing between the parties, including judicial separation and divorce, which are now pending before the learned Family Court, Deoghar, thereby reinforcing the territorial and functional jurisdiction of the said Court to decide all matrimonial and linked issues, including the custody of the minor child.
The learned Family Court has failed to consider the fact that in matters relating to custody and guardianship of the minor the paramount consideration is of the welfare of the child which has not taken into consideration while dismissing the suit.
The learned Family Court has failed to take into consideration that the appellant being the biological mother and natural guardian has been completely denied access to her minor child either physically or through any virtual mode of communication which has resulted in immense mental agony and emotional distress to the appellant.
The learned counsel based upon the aforesaid ground has submitted that the impugned judgment and decree, therefore, is not sustainable in the eyes of law and it requires interference by this Court.
Submission on behalf of the respondent:
Mr. Awanish Shekhar, the learned counsel appearing for the respondent-husband has taken the following grounds:
There is no error in the impugned judgement. The learned Family Judge has rightly considered the entire issue on the ground of territorial jurisdiction and has passed the order impugned as such the same may not be interfered with.
It has been contended that the issue of welfare is well to be looked into by the respondent, who is biological father of the minor child and under his guardianship the minor child is being looked after properly.
It has been contended that the mother has taken no care rather she has left the house on her own and the minor is living with the respondent and his parents, hence, it is the respondent and his parents to be more concerned with the welfare of the minor.
It has been contended that the minor child is at present residing with the respondent at Bengalore and, as such, the learned Family Court has rightly dismissed the suit for custody of the minor on the ground of lack of jurisdiction.
Learned counsel has submitted that the learned Family Judge on consideration of the aforesaid fact has denied the custody of the minor to be given in favour of the appellant herein, hence, the impugned judgment needs no interference.
Analysis:
We have heard the learned counsel appearing for the parties, gone through the impugned judgment/order as well as the Trial Court Records.
It is evident from the factual aspect that the instant Appeal filed against the order dated 06.11.2025 and decree dated 14.11.2025 passed in Original Suit No.105 of 2024 by the Family Court, Deoghar, whereby the learned Family Court allowed the respondent’s (husband) application filed under Order VII Rule 11 CPC and dismissed the appellant’s (wife) petition under Section 13(6 & 7) of the Hindu Minority and Guardianship Act, 1956 seeking guardianship of her minor daughter, Aastha Ray.
Petitioner/appellant is the mother of minor Aastha Ray born on 27.03.2018. Marriage with respondent solemnized on 04.05.2017. Petitioner later discovered respondent’s undisclosed first marriage with Shwetha S. Joshi (2009) and existence of son Ansh Ray (born 2013). The petitioner had alleged financial harassment and it has been stated that petitioner paid ₹14,24,000 before marriage and borrowed ₹44,88,000 later to meet respondent’s demands. Petitioner claims desertion on 27.02.2022; since then, living with parents. The petitioner filed suit for judicial separation and criminal case under sections 498A, 495, 420, 34 IPC and Dowry Prohibition Act.
It has been alleged by the petitioner that respondent allegedly denied access to minor child and changed her name to “Aarohi Rai,” and removed her from school, and kept her away from education for over a year. The petitioner asserts child’s welfare is compromised without mother’s care and seeks custody and guardianship and filed the suit before the learned Family Court Deoghar.
Respondent appeared on notice and filed written statement and admits marriage and child but contests jurisdiction of the leaned Family Court under Section 9(1) of Guardians and Wards Act and contended that suit must be filed where minor ordinarily resides, i.e., Bengaluru, not Deoghar.
He had claimed that the petitioner voluntarily left matrimonial home in 2022 after abandoning child. Respondent has denied cruelty and alleged that petitioner’s violent behaviour, alcohol/drug use, and abusive conduct. He had further asserted that petitioner lodged false criminal cases for extortion.
The respondent had stated that he is employed in a multinational company and family has stable income and provides proper care to minor child. He had further stated that minor officially named “Arohi Ray,” enrolled in reputed CBSE school and thriving under respondent’s custody. The respondent had contended that the custody change would harm child’s psychological and physical development and respondent as natural guardian ensures holistic growth of the Minor.
The respondent by way of filing an application under order VII rule 11 has challenged the jurisdiction of learned Family Court, Deoghar by taking ground that minor child since present residing at Bengaluru, therefore Deoghar Family Court having no jurisdiction to decide the issue of custody of minor.
Respondent’s application under Order VII Rule 11 CPC was allowed by the learned Family Court and the Suit has been dismissed vide order dated 06.11.2025 for lack of territorial jurisdiction. This dismissal order dated 06.11.2025 is now challenged under the instant appeal.
Upon consideration of the aforesaid factual matrix, the sole and seminal question which falls for determination before this Court is (i) Whether the Family Court at Deoghar was vested with territorial jurisdiction to entertain the mother’s petition under Section 13(6) and (7) of the Hindu Minority and Guardianship Act, 1956 for custody and guardianship of the minor child?
Whether the dismissal of the suit under Order VII Rule 11 of the Code of Civil Procedure stands legally sustainable.
Before adverting to the merits of the controversy, it is apposite at this stage to delineate the ambit and scope of Order VII Rule 11 of the Code of Civil Procedure, particularly insofar as it pertains to the question of territorial jurisdiction. For ready reference, the Order VII Rule 11 is being referred herein which reads as under:
“11.Rejection of plaint. — The plaint shall be rejected in the following cases:—
(a)where it does not disclose a cause of action;
(b)where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c)where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d)where the suit appears from the statement in the plaint to be barred by any law;
[(e) where it is not filed in duplicate;
(f)where the plaintiff fails to comply with the provisions of rule 9.
[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]
A perusal of Order VII Rule 11 CPC clearly shows that a plaint can be rejected on the ground enumerated in it. An application for rejection of plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety, appears to be barred by any law. However, while deciding an application under Order VII Rule 11 CPC, averment made in the plaint only has to be seen and the defence taken by the defendant in their written statement is relevant.
The objection to territorial jurisdiction has to be construed after taking all the averments in the plaint to be correct. InExphar SA v. Eupharma Laboratories Limited, (2004) 3 SCC 688, the Hon’ble Supreme Court observed that when an objection to jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on the basis that the facts, as pleaded by the initiator of the impugned procedure, are true. The Hon’ble Supreme Court further observed that the objection as to jurisdiction in order to succeed must demonstrate that granted those facts, the Court does not have jurisdiction as a matter of law.
It is settled position of law that the power of the courts under Order VII Rule 11 are mandatory in nature and may be exercised at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial. However, it has also clarified that the power conferred under Order VII Rule 11 is a drastic one and that the requirements enumerated therein should be strictly adhered to, reference in this regard be made to the judgment rendered by the Hon’ble Apex Court in the case of P.V. Guru Raj Reddy v. P. Neeradha Reddy, (2015) 8 SCC 331.
From the settled position of law, it is clear that in order to consider Order VII Rule 11, the Court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit, reference in this regard be made to the judgment rendered by the Hon’ble Apex Court in the case of Shakti Bhog Food Industries Ltd. v. Central Bank of India, (2020) 17 SCC 260. For ready reference, the relevant paragraphs are being quoted as under:
“7.Indeed, Order 7 Rule 11 CPC gives ample power to the court to reject the plaint, if from the averments in the plaint, it is evident that the suit is barred by any law including the law of limitation. This position is no more res integra. We may usefully refer to the decision of this Court in Ram Prakash Gupta v. Rajiv Kumar Gupta [Ram Prakash Gupta v. Rajiv Kumar Gupta, (2007) 10 SCC 59] . In paras 13 to 20, the Court observed as follows: (SCC pp. 65-66)
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14.In Saleem Bhai v. State of Maharashtra [Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557] it was held with reference to Order 7 Rule 11 of the Code that:
‘9. … the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power … at any stage of the suit — before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.…’ (SCC p. 560, para 9).
15.In ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
16.“The trial court must remember that if on a meaningful—not formal—reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise its power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, [it has to be nipped] in the bud at the first hearing by examining the party searchingly under Order 10 CPC.”
(See T. Arivandandam v. T.V. Satyapal [T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467] , SCC p. 468.)
17.It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill [Roop Lal Sathi v. Nachhattar Singh Gill, (1982) 3 SCC 487] , only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected.
18.In Raptakos Brett & Co. Ltd. v. Ganesh Property [Raptakos Brett & Co. Ltd. v. Ganesh Property, (1998) 7 SCC 184] it was observed that the averments in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 Order 7 was applicable.
19.In Sopan Sukhdeo Sable v. Charity Commr. [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137] this Court held thus: (SCC pp. 146-47, para 15)
‘15. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.’
20.For our purpose, clause (d) is relevant. It makes it clear that if the plaint does not contain necessary averments relating to limitation, the same is liable to be rejected. For the said purpose, it is the duty of the person who files such an application to satisfy the court that the plaint does not disclose how the same is in time. In order to answer the said question, it is incumbent on the part of the court to verify the entire plaint. Order 7 Rule 12 mandates where a plaint is rejected, the court has to record the order to that effect with the reasons for such order.”
9.We may also advert to the exposition of this Court in Madanuri Sri Rama Chandra Murthy v. Syed Jalal [Madanuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174 : (2017) 5 SCC (Civ) 602] . In para 7 of the said decision, this Court has succinctly restated the legal position as follows: (SCC pp. 178-79)
“7.The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.”
In the case of Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557 it has been observed by the Hon’ble Apex Court that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power under Order VII Rule 11 CPC at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order VII Rule 11 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.
Further, different clauses in Order VII Rule 11 CPC provided in relation to rejection of plaint should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground, a clear finding to that effect must be arrived at, reference in this regard be made to the judgment rendered by the Hon’ble Apex Court in the case of Kamala v. K.T. Eshwara Sa, (2008) 12 SCC 661.
Further, it is settled position of law that plaint cannot be rejected on basis of defendant's allegations in written statements. Court has to read entire plaint to find whether cause of action disclosed, if it does, then it cannot be rejected under Order VII Rule 11, reference in this regard be made to the judgment rendered by the Hon’ble Apex Court in Kuldeep Singh Pathania v. Bikram Singh Jaryal, (2017) 5 SCC 345.
This Court, before consideration of the issue involved in the instant case referred in preceding paragraphs, needs to refer herein the provision as contained under Section 9(1) of the Guardians and Wards Act, 1890.For ready reference, the same is being quoted as under:
“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.”
The aforesaid provision comprises of three sub-sections. Sub-section (1) thereof provides 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.
Sub-section (2) provides that if the application is with respect of 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 the place where he has property.
Sub-section (3) provides that 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.
It is, thus, evident that Section 9 speaks with respect to the guardianship of the person of the minor and the condition to maintain such petition in the place where the minor ordinarily resides.
Sub-section (2) provides that if the application is with respect to the guardianship of the property of the minor, such petition can be entertained 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, meaning thereby, guardianship with respect to the property of the minor, the concurrent jurisdiction of the District Court has been given, such litigation can be filed in either to the District Court having jurisdiction in the place where the minor ordinarily resides or a District court having jurisdiction where he has property. But, in any stretch of imagination so far as the issue of guardianship of person of minor is concerned, sub-section (2) of Section 9 is having no nexus, rather, sub-section 2 deals with the guardianship of the property of the minor.
Sub-section (3) further clarifies which has got bearing in the present facts and circumstances of the case that if an application with respect to the guardianship of the property of a minor is made to the District Court other than having jurisdiction in the place where the minor 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.
Thus, Section 9 of the Guardians and Wards Act, 1890 lays down the rules of jurisdiction for filing applications regarding guardianship. In essence, it specifies which District Court has authority depending on whether the matter concerns the minor’s person or property deals with where to file guardianship applications. For guardianship of a child's personal care (where they live and who looks after them), the application must go to the District Court where the child usually lives. For guardianship of a child's property (like land or money), the application can be made either where the child lives or where the property is located. If someone files about property in a Court where the child doesn't live, the Court can send the case to another Court if it believes justice would be better served there.
It is pertinent to mention herein that the consideration has been given by the Hon’ble Apex Court so far as the issue of jurisdiction as per the provision of Section 9(1) of the Act, 1890 is concerned in the case of Ruchi Majoo vs. Sanjeev Majoo (2011) 6 SCC 479 that any challenge to the jurisdiction of the Court will have to be seen in the context of the averments made in the pleadings of the parties and the requirement of Section 9 of the Guardians and Wards Act, 1890.
The fact of the said case as would be evident from the reference made at paragraph-9 thereof that the appellant mother had in her petition filed under the Guardians and Wards Act, 1890 invoked the jurisdiction of the Court at Delhi, on the assertion that the minor was, on the date of the presentation of the petition for custody was ordinarily residing at New Delhi.
The respondent had raised the issue of jurisdiction by pleading that the appellant along with the respondent and their minor son had stayed with the parents of the appellant at Delhi till 05.07.2008. Thereafter, they were supposed to visit Udaipur but since the appellant insisted that she would stay at Delhi and assured to send the minor son after sometime to Udaipur, the respondent left for Udaipur where he received a legal notice on behalf of the appellant making false and imaginary allegations.
The ground, therefore, was taken that neither the appellant nor Kush, the minor son could be ordinarily resident of Delhi so as to confer jurisdiction upon the Delhi Court.
The Hon’ble Apex Court has taken into consideration the provision as contained under Section 9(1) of the Act, 1890 which has been considered at paragraph-24 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.
The Hon’ble Apex Court has considered at paragraph-26 the expression “ordinarily resident” appearing in Section 9(1). The word “ordinary” has been defined by Black's Law Dictionary as follows:
“Ordinary (adj.).—Regular; usual; normal; common; often recurring; according to established order; settled; customary; reasonable; not characterised by peculiar or unusual circumstances; belonging to, exercised by, or characteristic of, the normal or average individual.” The word “reside” has been explained similarly as under: “Reside.— Live, dwell, abide, sojourn, stay, remain, lodge. (WesternKnapp Engg. Co. v. Gilbank [129 F 2d 135 (CCA 9th Cir 1942)] , F 2d at p. 136.) To settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one's residence or domicile; specifically, to be in residence, to have an abiding place, to be present as an element, to inhere as a quality, to be vested as a right. (Bowden v. Jensen [359 SW 2d 343 (Mo Banc 1962)] , SW 2d at p. 349.)”
In Webster's Dictionary also the word “reside” finds a similar meaning, which may be gainfully extracted:
“1.To dwell for a considerable time; to make one's home; live. 2. To exist as an attribute or quality with in. 3. To be vested: with in.”
For ready reference, paragraphs 24 to 31 of the said judgment are being referred as under:
“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. There are serious disputes on those aspects to which we shall presently refer.
26.We may before doing so examine the true purpose of the expression
“ordinarily resident” appearing in Section 9(1). This expression has been used in different contexts and statutes and has often come up for interpretation. Since liberal interpretation is the first and the foremost rule of interpretation it would be useful to understand the literal meaning of the two words that comprise the expression. The word
“ordinary” has been defined by Black's Law Dictionary as follows:
“Ordinary (adj.).—Regular; usual; normal; common; often recurring; according to established order; settled; customary; reasonable; not characterised by peculiar or unusual circumstances; belonging to, exercised by, or characteristic of, the normal or average individual.” The word “reside” has been explained similarly as under:
“Reside.—Live, dwell, abide, sojourn, stay, remain, lodge. (WesternKnapp Engg. Co. v. Gilbank [129 F 2d 135 (CCA 9th Cir 1942)] , F 2d at p. 136.) To settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one's residence or domicile; specifically, to be in residence, to have an abiding place, to be present as an element, to inhere as a quality, to be vested as a right. (Bowden v. Jensen [359 SW 2d 343 (Mo Banc 1962)] , SW 2d at p. 349.)”
27.In Webster's Dictionary also the word “reside” finds a similar meaning, which may be gainfully extracted:
“1.To dwell for a considerable time; to make one's home; live. 2. To exist as an attribute or quality with in. 3. To be vested: with in.”
28.In Annie Besant v. G. Narayaniah [(1913-14) 41 IA 314 : AIR 1914 PC 41] the infants had been residing in the district of Chingleput in the Madras Presidency. They were given in custody of Mrs Annie Besant for the purpose of education and were getting their education in England at the University of Oxford. A case was, however, filed in the District Court of Chingleput for the custody where according to the plaintiff the minors had permanently resided. Repeating the plea that the Chingleput Court was competent to entertain the application Their Lordships of the Privy Council observed: (IA p. 322)
“… The District Court in which the suit was instituted had no jurisdiction over the infants except such jurisdiction as was conferred by the Guardians and Wards Act, 1890. By the 9th section of that Act the jurisdiction of the court is confined to infants ordinarily resident in the district. It is in Their Lordships' opinion impossible to hold that infants who had months previously left India with a view to being educated in England and going to the University of Oxford were ordinarily resident in the district of Chingleput.
29.In Jagir Kaur v. Jaswant Singh [AIR 1963 SC 1521 : (1963) 2 Cri LJ 413] this Court was dealing with a case under Section 488 CrPC and the question of jurisdiction of the court to entertain a petition for maintenance.
The Court noticed a near unanimity of opinion as to what is meant by the use of the word “resides” appearing in the provision and held that
“resides” implied something more than a flying visit to, or casual stay at a particular place. The legal position was summed up in the following words: (AIR p. 1524, para 8)
“8.… Having regard to the object sought to be achieved, the meaning implicit in the words used, and the construction placed by decided cases thereon, we would define the word ‘resides’ thus: a person resides in a place if he through choice makes it his abode permanently or even temporarily; whether a person has chosen to make a particular place his abode depends upon the facts of each case.”
30.In Kuldip Nayar v. Union of India [(2006) 7 SCC 1] the expression
“ordinary residence” as used in the Representation of the People Act, 1950 fell for interpretation. This Court observed: (SCC p. 96, paras 243- 46)
“243.Lexicon refers to Cicutti v. Suffolk County Council [(1981) 1 WLR 558 : (1980) 3 All ER 689 (DC)] to denote that the word ‘ordinarily’ is primarily directed not to duration but to purpose. In this sense the question is not so much where the person is to be found ‘ordinarily’, in the sense of usually or habitually and with some degree of continuity, but whether the quality of residence is ‘ordinary’ and general, rather than merely for some special or limited purpose.
244.The words ‘ordinarily’ and ‘resident’ have been used together in other statutory provisions as well and as per Law Lexicon they have been construed as not to require that the person should be one who is always resident or carries on business in the particular place.
245.The expression coined by joining the two words has to be interpreted with reference to the point of time requisite for the purposes of the provision, in the case of Section 20 of the RP Act, 1950 it being the date on which a person seeks to be registered as an elector in a particular constituency.
246.Thus, residence is a concept that may also be transitory. Even when qualified by the word ‘ordinarily’ the word ‘resident’ would not result in a construction having the effect of a requirement of the person using a particular place for dwelling always or on permanent uninterrupted basis. Thus understood, even the requirement of a person being ‘ordinarily resident’ at a particular place is incapable of ensuring nexus between him and the place in question.
31.Reference may be made to Bhagyalakshmi v. K. Narayana Rao [AIR 1983 Mad 9] , Aparna Banerjee v. Tapan Banerjee [AIR 1986 P&H 113] , Ram Sarup v. Chimman Lal [AIR 1952 All 79] , Vimla Devi v. Maya Devi [AIR 1981 Raj 211] and Giovanni Marco Muzzu (Dr.), In re [AIR 1983 Bom 242] , in which the High Courts have dealt with the meaning and purport of the expressions like “ordinary resident” and “ordinarily resides” and taken the view that the question whether one is ordinarily residing at a given place depends so much on the intention to make that place one's ordinary abode.”
The Hon’ble Apex Court, based upon the facts of the aforesaid case, has considered as would be evident from paragraph-36 that the question whether the decision to allow the appellant and Kush, the minor son, 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 an opportunity to adduce evidence in support of their respective versions.
It is, thus, evident from the proposition so laid by the Hon’ble Apex Court that the meaning and purport of the expression “ordinary resident” and “ordinarily resides” and taken the view that the question whether one is ordinarily residing at a given place depends so much on the intention to make that place one's ordinary abode.
The issue of residence, in order to have the jurisdiction to the concerned Court, has also been taken into consideration by the Hon’ble Apex Court in the case of Jeewanti Pandey v. Kishan Chandra Pandey, ((1981) 4 SCC 517, wherein it has been held at paragraph-12 that 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 dwell 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.
Thus, as per ratio rendered by Hon’ble Apex Court in the case of Ruchi Majoo vs. Sanjeev Majoo (supra) it has been observed in paragraph-24 that 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.
This Court, having regard to the principles enunciated by the Hon’ble Supreme Court in the aforementioned authorities, now proceeds to revert to the factual matrix of the present case, as duly considered by the learned Court below, for the purpose of returning findings upon the issues framed in the preceding paragraphs.
The Original Suit No. 105 of 2024 before the Family Court at Deoghar seeking custody of the minor child under the Hindu Minority and Guardianship Act, 1956. The said suit was admitted and notices were issued to the respondent. After appearing and participating in proceedings including mediation, thereafter the respondent filed an application under Order VII Rule 11 CPC on the ground of territorial jurisdiction under Section 9(1) of the Guardians and Wards Act, 1890. By the impugned judgment dated 06.11.2025, the learned Additional Principal Judge, Family Court, Deoghar allowed the said application and rejected the suit on the ground of lack of territorial jurisdiction. The present appeal challenges the said impugned judgment.
As discussed in the preceding paragraphs that the power to reject a plaint under Order VII Rule 11 CPC is an extreme and drastic power which must be exercised sparingly and only in those cases where the defect is patent and apparent on the face of the plaint itself, without requiring any inquiry into facts. It is a settled principle of law that at the stage of Order VII Rule 11 CPC, the Court is required to read the plaint as a whole and assume all pleaded facts to be true. If even one of the pleaded facts discloses a cause of action or establishes the jurisdiction of the Court, the application under Order VII Rule 11 CPC must be dismissed.
From perusal of impugned judgment, it is evident that the learned Court below going beyond the pleadings and making a finding on facts that the child was ordinarily residing at Bengaluru, which finding could only have been arrived at after recording evidence. From perusal of impugned judgment, it is evident that the learned Family Court, Deoghar has allowed the application under Order VII Rule 11 CPC and rejecting the suit at the threshold, which is contrary to settled position of law.
Further, the respondent appeared before the learned Family Court pursuant to notice, participated in the proceedings and was referred to mediation. At no point during the admission stage or during the mediation proceedings did the respondent raise any objection regarding territorial jurisdiction. The application under Order VII Rule 11 CPC was filed by the respondent belatedly, only after the mediation proceedings failed, solely with the intent to stall and obstruct the custody proceedings. Having voluntarily submitted to the jurisdiction of the Family Court at Deoghar by appearance and participation in proceedings, the respondent is estopped from raising a belated jurisdictional objection.
In the present case, the appellant has specifically pleaded that the respondent has been shifting the child from place to place, keeping her at undisclosed locations, that the child was removed from school without notice and that the respondent has now shifted to Patna.
In view of these pleadings and the disputed nature of the factual position, the question of ordinary residence of the minor could only have been adjudicated after recording evidence. It is considered view of this Court that the learned Family Court has committed a serious error of law in deciding this mixed question of fact and law at the threshold stage of Order VII Rule 11 CPC without recording any evidence.
Further, a plaint cannot be rejected under Order VII Rule 11 CPC unless the defect is patent and apparent on the face of the plaint itself and the Court must assume all pleaded facts to be true.
Further, the question of ordinary residence of a minor under Section 9(1) of the Guardians and Wards Act, 1890 is a mixed question of law and fact and must be decided after evidence, not at the threshold stage of Order VII Rule 11 CPC as held by the Hon'ble Supreme Court in Ruchi Majoo v. Sanjeev Majoo (supra).
Thus, upon a comprehensive appraisal of the discussion hereinabove, this Court is constrained to hold that the learned Family Court, in rejecting the suit at the very threshold, has failed to adhere to the settled position of law as adverted to and referred in the preceding paragraphs. The order so passed, being vitiated by perversity, necessarily warrants interference by this Court.
At this juncture, it needs to refer herein that the interpretation of the word “perverse” as has been interpreted by the Hon'ble Apex Court which means that there is no evidence or erroneous consideration of the evidence. The Hon'ble Apex Court in Arulvelu and Anr. vs. State [Represented by the Public Prosecutor] and Anr., (2009) 10 SCC 206 while elaborately discussing the word perverse has held that it is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as so to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law. Relevant paragraphs, i.e., paras-24, 25, 26 and 27 of the said judgment reads as under:
“24.The expression “perverse” has been dealt with in a number of cases. In Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501] this Court observed that the expression “perverse” means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity.
25.In Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd. [AIR 1966 Cal 31] the Court observed that “perverse finding” means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665 : AIR 1994 SC 1341] the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.
26.In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58] the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed that a “perverse verdict” may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey [106 NW 814] the Court defined “perverse” as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc.
27.The expression “perverse” has been defined by various dictionaries in the following manner:
1.Oxford Advanced Learner's Dictionary of Current English, 6th Edn.
“Perverse.—Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.”
2.Longman Dictionary of Contemporary English, International Edn.
Perverse.—Deliberately departing from what is normal and reasonable.
3.The New Oxford Dictionary of English, 1998 Edn.
Perverse.—Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4.The New Lexicon Webster's Dictionary of the English Language (Deluxe Encyclopedic Edn.)
Perverse.—Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5.Stroud's Judicial Dictionary of Words & Phrases, 4th Edn.
“Perverse. —A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.”
Thus, from the aforesaid it is evident that if any order made in conscious violation of pleading and law, then it will come under the purview of perverse order. Further “perverse verdict" may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
Thus, “perversity” refers to a finding or decision so unreasonable or irrational that no reasonable person acting judicially could have reached it. It signifies a gross and unreasonable assessment of evidence or law by a Court.
Further Perversity is a high threshold for intervention, distinguishing it from a mere error of fact or law. The safest approach on perversity is the classic approach on the reasonable man's inference on the facts but inadequacy of evidence or a different reading of evidence is not perversity, reference in this regard be made to the judgment rendered by the Hon’ble Apex Court in the case of Damodar Lal v. Sohan Devi, (2016) 14 SCC 197.
This Court, upon due consideration of the legal import of the expression ‘perversity’ and in the light of the foregoing discussion, is of the considered view that the impugned judgment/order, having been rendered at the threshold without appreciating the fact that the issue of jurisdiction is not a pure question of law and that evidence is indispensable for arriving at a final conclusion, therefore, impugned order/judgment squarely falls within the ambit of perversity.
Consequently, such a decree cannot be permitted to stand, and in exercise of appellate jurisdiction, this Court finds sufficient cause to interfere with the same.
Accordingly, the order/judgment dated 06.11.2025 and the decree signed on 14.11.2025 passed in Original Suit No.105 of 2024 by the learned Addl. Principal Judge, Addl. Family Court, Deoghar are hereby quashed and set-aside.
Accordingly, the matter is remitted to the learned Addl. Principal Judge, Addl. Family Court, Deoghar by revival of Original Suit No. 105 of 2024 to its original file, so that the suit may be adjudicated afresh on its own merits in accordance with law.
Both parties are directed to cause their appearance before the learned Addl. Principal Judge, Addl. Family Court, Deoghar within a period of four weeks from today.
The learned Addl. Principal Judge, Addl. Family Court, Deoghar shall thereafter adjudicate the suit on its merits by duly framing the issue of jurisdiction as one of the points for determination, and shall proceed in accordance with law upon a comprehensive consideration of all evidence available on record or adduced by the parties.
With aforesaid direction and observation, the instant appeal stand disposed of.
Pending I. As, if any, stand disposed of.