Ordinary Residence In Child Custody Suit Is Mixed Question Of Fact & Law: Jharkhand HC

In a decision reshaping child custody litigation, the High Court has held that the ordinary residence of a minor under guardianship laws cannot be decided at the threshold stage without recording evidence. Overturning the summary rejection of a mother's custody suit, the Court affirmed that jurisdictional objections rooted in factual disputes require a full trial rather than an abrupt dismissal.

A Division Bench comprising Justice Sujit Narayan Prasad and Justice Sanjay Prasad heard the first appeal challenging the dismissal of a mother's custody petition for want of territorial jurisdiction. The appeal arose out of a dispute where the mother sought guardianship and custody of her minor daughter under the Hindu Minority and Guardianship Act, 1956 before the Family Court, Deoghar, which was rejected at the threshold under Order VII Rule 11 of the Code of Civil Procedure, 1908.

The High Court thoroughly evaluated the statutory framework under Section 9 of the Guardians and Wards Act, 1890 and procedural limits under Order VII Rule 11 of the Code of Civil Procedure, 1908. Reversing the lower court's approach, the Court emphasized that determining where a child ordinarily resides hinges on intent and factual context, making it a mixed question of law and fact.

The Court has following directions:

"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."

The Court, in its reasoning, observed: "...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."

Highlighting the legal error committed by the trial judge, the Court noted that going beyond pleadings to record a factual finding on jurisdiction at the preliminary stage without taking evidence amounts to perversity. In this context, the Court relied on Exphar SA v. Eupharma Laboratories Limited ( "(2004) 3 SCC 688": 2004 CaseBase(SC) 299) and P.V. Guru Raj Reddy v. P. Neeradha Reddy to reiterate that an objection to jurisdiction raised under Order VII Rule 11 must proceed strictly on the basis that the facts pleaded in the plaint are true. It further cited Shakti Bhog Food Industries Ltd. v. Central Bank of India ( "(2020) 17 SCC 260": 2020 CaseBase(SC) 1366), Saleem Bhai v. State of Maharashtra ( "(2003) 1 SCC 557": 2002 CaseBase(SC) 394), Madanuri Sri Rama Chandra Murthy v. Syed Jalal ( "(2017) 13 SCC 174 : (2017) 5 SCC (Civ) 602": 2017 CaseBase(SC) 641), Kamala v. K.T. Eshwara Sa ( "(2008) 12 SCC 661": 2008 CaseBase(SC) 288), and Kuldeep Singh Pathania v. Bikram Singh Jaryal ( "(2017) 5 SCC 345": 2017 CaseBase(SC) 522) to emphasize that a plaint must be read as a whole and cannot be rejected based on defense pleas raised in a written statement.

With respect to interpreting the concept of residence, the High Court referred to Ruchi Majoo vs. Sanjeev Majoo ( "(2011) 6 SCC 479": 2011 CaseBase(SC) 141), noting that jurisdiction based on residence requires something more than a temporary stay. Moreover, on the scope of appellate interference against perverse orders, the Court adverted to Jeewanti Pandey v. Kishan Chandra Pandey ( "(1981) 4 SCC 517": 1981 CaseBase(SC) 25) and Arulvelu and Anr. vs. State [Represented by the Public Prosecutor] and Anr., concluding that an order passed in conscious violation of pleadings and established law is legally unsustainable.

Background

The dispute arose from a petition filed by the appellant-mother under Section 13(6 & 7) of the Hindu Minority and Guardianship Act, 1956 before the Family Court, Deoghar, seeking guardianship and custody of her minor daughter. The mother alleged that her marriage took place in Deoghar in 2017 and that she was subsequently subjected to severe financial harassment and cruelty by the respondent-husband, who had also concealed his earlier marriage. She stated that after being deserted in 2022, she was forced to reside with her parents in Deoghar and had filed multiple proceedings there, including a suit for judicial separation and a criminal case under Section 498A IPC.

The mother further pleaded that the respondent had forcibly denied her access to the child, changed the child's school and official name, and frequently shifted locations, thereby harming the child's welfare. Upon receiving notice from the Deoghar Family Court, the respondent appeared and participated in proceedings, including failed mediation. Subsequently, he filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908, alleging that the Deoghar court lacked territorial jurisdiction under Section 9(1) of the Guardians and Wards Act, 1890 because the child was residing in Bengaluru.

The Family Court at Deoghar allowed the respondent's application and rejected the suit. Reversing this decision, the High Court held that the trial court acted with perversity by prematurely deciding a disputed factual issue regarding ordinary residence without recording evidence. The appeal under Section 19(1) of the Family Court Act, 1984 was accordingly allowed, and the suit was restored to its original file for fresh adjudication on merits.

Case Details:
Case No.: First Appeal No.253 of 2026
Neutral Citation: 2026:JHHC:25963-DB
Case Title: Surbhe Shaw v. Ajit Kumar
Appearances:
For the Petitioner(s): Mr. Ankur Anand, Advocate
For the Respondent(s): Mr. Awanish Shekhar, Advocate

Source: 2026 CaseBase(JHKD) 2721