Territorial jurisdiction based on a minor’s ordinary residence cannot be decided under Order VII Rule 11 CPC.

The appellant, mother of the minor girl Aastha Ray, born on 27.03.2018, sought appointment as guardian and custody of the child before the Family Court, Deoghar under Sections 13(6) and 13(7) of the Hindu Minority and Guardianship Act, 1956.

She alleged that the respondent-husband had denied her access to the child, changed the child’s name, removed her from school, and kept her at undisclosed locations.

The respondent admitted the marriage and parentage but contended that the child had ordinarily resided with him at Bengaluru since birth and that the Deoghar court lacked territorial jurisdiction under Section 9(1) of the Guardians and Wards Act, 1890.

After appearing and participating in proceedings, including mediation, the respondent filed an application under Order VII Rule 11 CPC.

The Family Court allowed the application and dismissed the custody petition for want of territorial jurisdiction by order dated 06.11.2025, followed by decree dated 14.11.2025.

1. Whether the Family Court at Deoghar had territorial jurisdiction to entertain the appellant’s petition concerning guardianship and custody of the minor child under Section 9(1) of the Guardians and Wards Act, 1890.

2. Whether the Family Court legally erred in dismissing the petition under Order VII Rule 11 CPC at the threshold, without recording evidence on the minor’s ordinary residence.

Section 9(1) of the Guardians and Wards Act, 1890 requires an application relating to guardianship of the person of a minor to be filed before the District Court having jurisdiction over the place where the minor “ordinarily resides”.

The expression “ordinarily resides” primarily involves intention and is ordinarily a mixed question of law and fact, requiring factual inquiry where the jurisdictional facts are disputed, as held in Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479.

Under Order VII Rule 11 CPC, the court must consider the plaint as a whole and accept its averments as true; the defendant’s written statement and disputed defence cannot ordinarily be relied upon for rejection of the plaint under clauses (a) or (d).

Rejection of a plaint is a drastic power to be exercised only where the defect or statutory bar is apparent on the face of the plaint, consistent with Exphar SA v. Eupharma Laboratories Ltd., (2004) 3 SCC 688; P.V. Guru Raj Reddy v. P. Neeradha Reddy, (2015) 8 SCC 331; Shakti Bhog Food Industries Ltd. v. Central Bank of India, (2020) 17 SCC 260; and Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557.

A finding rendered in disregard of the pleadings or settled law may be perverse and liable to appellate interference.

The High Court held that the Family Court had improperly treated the respondent’s assertion that Bengaluru was the child’s ordinary residence as conclusive.

The appellant’s pleadings alleged that the respondent had shifted the child between locations, kept her whereabouts undisclosed, removed her from school, and subsequently shifted to Patna.

These allegations, read in the appellant’s favour at the Order VII Rule 11 stage, created a disputed factual question regarding the child’s ordinary residence.

Applying Ruchi Majoo, the High Court held that this issue could not be determined as a pure question of law without an evidentiary inquiry.

The Family Court had therefore gone beyond the plaint and prematurely recorded a factual finding on territorial jurisdiction, contrary to the limited scope of Order VII Rule 11 CPC.

The High Court further noted the respondent’s appearance, participation in the proceedings, and involvement in mediation before raising the jurisdictional objection.

Accordingly, the Family Court’s order was found to be legally unsustainable and perverse.

The parties were directed to appear before the Family Court, Deoghar within four weeks.

The Family Court was directed to adjudicate the matter afresh on merits, frame territorial jurisdiction as an issue for determination, and decide it after considering the evidence available or adduced by the parties.

The Court thus held that the question of the minor’s ordinary residence could not be decided at the threshold under Order VII Rule 11 CPC where the relevant facts were disputed.