BEFORE THE HON’BLE JUDGE OF THE FAMILY
COURT AT ALIBAG, RAIGAD
Petition D / 6/ 2024
PANKAJ SURESH SHAH ---- APPLICANT
VS
SHILPA PANKAJ SHAH ---- RESPONDENT
WRITTEN SUBMISSIONS ON BEHALF OF
THE APPLICANT REGARDING JURISDICTION
OF THIS HON'BLE COURT
MOST RESPECTFULLY SHOWETH
I PRELIMINARY SUBMISSION
1. The Applicant humbly submits that this Hon’ble Family Court at Alibag has the
requisite jurisdiction to entertain and adjudicate the present application filed under
Section 25 of the Guardians and Wards Act, 1890, seeking custody of the minor child,
Master Harsh.
2. The Applicant is a permanent resident of Pen, Raigad, Maharashtra, within the
territorial jurisdiction of this Hon’ble Court. The Applicant and Respondent were legally
married, and the minor child was born and brought up at Pen until matrimonial
disputes led to the Respondent unilaterally removing the child to Gujarat without the
Applicant’s consent.
3. The Applicant submits that the jurisdiction of this Hon’ble Court is maintainable
based on following Grounds:
GROUNDS
a) The minor child, Master Harsh, was born and brought up at Pen, Raigad, where
he lived continuously with both parents since birth. His schooling, social
interactions, and family environment were rooted in Pen, clearly establishing it
as his place of ordinary residence before being wrongfully removed by the
Respondent to Gujarat.
b) The Applicant has been a permanent resident of Pen, Raigad, for over 13 years,
actively involved in the local community and maintaining his livelihood there,
which supports the territorial jurisdiction of this Hon’ble Court over the present
custody dispute.
c) The Applicant and Respondent last cohabited as husband and wife with their
child at Pen, Raigad, making it the appropriate jurisdiction for deciding all
matrimonial and custody matters.
d) The Respondent took the child to Gujarat without the Applicant’s knowledge or
consent, and such unilateral removal cannot be permitted to alter or defeat the
existing court’s jurisdiction.
e) The welfare of the child is the paramount consideration in any custody
proceeding, overriding technical jurisdictional objections. This Hon’ble Family
Court, acting under the parens patriae doctrine, is empowered to protect the
child’s best interests by adjudicating the custody dispute, even if the child has
been wrongfully removed to another state
4. This submission addresses the Hon’ble Court’s query on maintainability and
jurisdiction, supported by statutory provisions under the Guardians and Wards Act,
1890, and authoritative judicial pronouncements by the Supreme Court of India and
various High Courts.
II. FACTUAL BACKGROUND
1. The Applicant and Respondent were married under HINDU MARRIAGE ACT
and resided together at Pen, Raigad, Maharashtra.
2. From the wedlock, a male child, Master Harsh, was born at Pen and resided
with both parents at Pen until disputes arose.
3. Due to frequent quarrels and strained relations, the Respondent, without
the Applicant’s knowledge or consent, removed Master Harsh to the State of
Gujarat approximately two years ago.
4. The Applicant initiated divorce proceedings before this Hon’ble Court, as
Pen was the place where the parties last resided together.
5. Subsequently, the Applicant filed the present custody application under
Section 25 of the Guardians and Wards Act, 1890, seeking permanent custody
of Master Harsh.
6. Despite due and valid service of summons, the Respondent has failed to
appear or contest the matter, and hence, the case is proceeding Ex Parte. It is
respectfully submitted that law assists those who remain vigilant of their
rights and not those who sleep over them (Vigilantibus non dormientibus jura
subveniunt).
7. The Hon’ble Court has raised a query regarding the maintainability of the
custody application, given that the minor child temporarily resides in Gujarat.
III. LEGAL FRAMEWORK: GUARDIANS AND WARDS ACT, 1890
1. The Guardians and Wards Act, 1890, is the primary legislation governing
custody and guardianship disputes in India for cases not covered exclusively by
personal laws.
2. Section 9 of the Act deals with the jurisdiction of courts to entertain
applications for guardianship and custody and provides as follows
Section 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 an application with respect
to the guardianship of the person and property of the minor could
more conveniently be dealt with by the District Court having
jurisdiction in the place where the minor ordinarily resides.”
3. The key phrase in Section 9(1) is “ordinarily resides,” which determines the
jurisdiction for custody applications.
4. The Applicant submits that the term “ordinarily resides” must be interpreted
in light of the minor’s residence prior to the wrongful removal by the Respondent
and the residence of the Applicant, who is the natural guardian seeking custody.
IV. ARGUMENT ON JURISDICTION
The Applicant submits that this Hon’ble Court has jurisdiction to entertain the present
custody application based on the following grounds:
A. Ordinary Residence of the Minor Child
1. The phrase “ordinarily resides” in Section 9(1) of the GWA refers to the
place where the minor has a settled and regular abode, not a temporary or
forced residence resulting from unilateral actions of one parent.
2. Master Harsh was born and brought up at Pen, Raigad, and resided there
with both parents until the Respondent removed him to Gujarat without the
Applicant’s consent.
3. The Allahabad High Court in Dheeraj vs Smt Chetna Goswami. AIR 2024
Allahabad 188 held that
19. Thus, a bare perusal of section 9 (1) of the Guardians and Wards Act,
1890 makes it apparent that it i s the ordinary place of residence of minor
which determines the jurisdiction of the Court for entertaining an
application for guardianship of the minor. Such jurisdiction cannot be
taken away by temporary residence elsewhere on the date of
presentation of the petition. The fact that the minor is found actually
residing at the place when the application for the guardianship of the
minor is made does not determine the jurisdiction of the Court.
4. While explaining the expression "where the minor ordinarily resides", the
Hon'ble Supreme Court in the case of Jagdish Chandra Gupta v. Dr Ku. Vimla
Gupta, reported in AIR 2003 All 317, has been pleased to hold as under:
“20. The expression ordinarily resides and residing at the time of the
application are not synonymous and stipulate different situations which
are not inter-changeable. 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 t o which the minor may be removed)
a t or about the time of the 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.”
5. In the present case, the Respondent’s act of removing the child to Gujarat
was unilateral and without the Applicant’s consent. Allowing such an act to
determine jurisdiction would reward wrongful conduct and prejudice the
Applicant’s rights.
6. Thus, Master Harsh’s ordinary residence remains Pen, Raigad, where he
lived with both parents until the Respondent’s actions disrupted the
status quo.
B. Applicant’s Residence Within Jurisdiction.
1.The Applicant continues to reside at Pen, Raigad, within the jurisdiction of this
Hon’ble Court.
2. Manish Sehgal v. Meenu Sehgal, reported i n (2013) 202 DLT 87 :AlROnline
2013 DEL 139, rendered by the High Court of Delhi and affirmed by the Hon'ble
Supreme Court of India vide its order dated 30.01.2014 in Manish Sehgal v.
Meenu Sehgal, S.L.P. (Civil) No(s). 1590-1590 of 2014; i t has been held as
follows:
“16. It is settled law that the place of residence at the time of the filing of
the application under the Act does not help to ascertain whether a
particular court has jurisdiction to entertain the proceedings or not. The
moving of minors from one place to another and consequently from one
jurisdiction to another does not help the party who raises the plea of
jurisdiction. The main question, i.e. whether the minors were ordinarily
residing in any particular place, has to be primarily decided on the facts
of the particular case.
17. In view of the abovesaid facts and circumstances as explained earlier,
I am of the view that the impugned order cannot be interfered with. In
view of facts stated in the petition, it is clear that the place where the
children have gone to study cannot be presumed to be place of their
ordinary residence. The children were residents of Delhi and were
studying in Delhi prior to starting of matrimonial dispute. The removal of
children by either side to Lucknow cannot be established permanent home
of the children.”
3. The Applicant, being the father and a natural guardian under Section 6 of the
Hindu Minority and Guardianship Act, 1956 (if applicable), has a legitimate claim
to custody. Her residence at Pen strengthens the jurisdiction of this Hon’ble
Court.
C. Wrongful Removal Cannot Oust Jurisdiction
1. The Respondent’s act of removing Master Harsh to Gujarat without the
Applicant’s consent is wrongful and cannot divest this Hon’ble Court of its
jurisdiction.
2. The Supreme Court in Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC
42, observed that:
“When a minor is removed from his ordinary residence by one parent
without the consent of the other, the court of the place from where the
minor was removed retains jurisdiction to decide custody matters, as
allowing the removing parent to dictate jurisdiction would encourage
forum shopping and prejudice the minor’s welfare.”
3. The Gujarat High Court in Smt. Vimla Devi v. Sanjay Kumar, AIR 1993 Guj 75,
reiterated:
“A parent cannot unilaterally change the minor’s residence to defeat the
jurisdiction of the court where the minor ordinarily resided. The court
must protect the rights of the other parent and prioritize the minor’s
welfare.”
D. Welfare of the Minor as Paramount Consideration.
The Supreme court in Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 held that the
paramount consideration in matter of custody is the welfare of Child and not the right
of parents, Henceforth applicant submits that ;
1. Section 17 of the Guardians and Wards Act, 1890 mandates that the court
must consider the welfare of the minor as the paramount consideration in
custody disputes.
2. In the present case, the welfare of Master Harsh lies with the Applicant-
Father, who is a qualified engineer and financially capable of ensuring a
stable and nurturing environment for the child. The child was earlier
enrolled in a high-quality ICSE curriculum-based school, reflecting a high
standard of education. Presently, after being removed by the Respondent,
he is studying in a semi-English medium public school, indicating a decline
in the standard of education and lifestyle.
3. The Respondent-Mother is merely 10th pass and does not have any stable
income to support the child’s academic growth, higher studies, or overall
development.
4. The Respondent also exhibits unstable and aggressive behavior. She is
short-tempered and quarrelsome in nature, and as per medical reports, she
suffers from mental health issues. Such a mental health condition adversely
affects her ability to provide a secure and emotionally stable environment
for the child.
5. The Applicant reiterates that all aspects of the child’s well-being—
educational, emotional, financial, and psychological—are better secured in
his custody, and thus prays that the Hon’ble Court consider the same in
determining jurisdiction and deciding the application.
6. Territorial jurisdiction under Section 9 cannot be interpreted to reward a
party who has taken the law into their own hands by unilaterally removing
a child.
7. Allowing the Respondent to escape the jurisdiction of this Court by her own
wrongful act would set a dangerous precedent and defeat the very
objective of the Guardians and Wards Act.
V. PRAYER
In light of the above submissions, statutory provisions, and judicial precedents, the
Applicant respectfully prays that:
1. This Hon’ble Court may be pleased to hold that it has jurisdiction to
entertain and adjudicate the present custody application under Section 9 of the
Guardians and Wards Act, 1890, as Pen, Raigad, is the place of the minor’s
ordinary residence and where the Applicant resides.
2. The Hon’ble Court may proceed to adjudicate the merits of the custody
application, considering the welfare of Master Harsh as the paramount
consideration.
3. Any other relief that this Hon’ble Court deems fit and proper in the
circumstances of the case may kindly be granted.
Date 16th April 2025
Alibag
Advocate for Applicant
