Bombay HC Transfers Guardianship Case, Prioritizing Child's 'Ordinary Residence' in Nashik.


17 April 2025 Child Custody >> Family Law   |   Family Courts >> Marriage Law  

In a recent order of Sonali Trushant Walde & Another v/s Dhananjay Pundlik Choudhari, the Bombay High Court addressed competing applications for the transfer of guardianship proceedings concerning a minor girl, "V," who tragically lost her entire immediate family in a motor vehicle accident. The case highlights the crucial legal principle of "ordinary residence" of a minor in determining jurisdictional competence under the Guardians and Wards Act of 1890.

The dispute arose after the death of Monali, the mother of "V," in an accident that also claimed the lives of Monali's parents and brother. Following the tragedy, Monali's sister, Sonali, the applicant in one of the transfer applications (MCA No. 62 of 2024), took custody of "V" and brought her to reside in Nashik, where Sonali is a resident. "V" has since been enrolled in a school in Nashik. Consequently, Sonali filed a guardianship petition before the Family Court in Nashik.

 
 

However, Dhananjay Choudhari, the respondent and the father of "V," initiated a separate guardianship case before the Principal District Judge in Chandrapur, asserting his right as the natural guardian and alleging that Sonali had improperly removed "V" from his custody. This prompted Sonali to seek the transfer of the Chandrapur case to the Nashik Family Court, to be heard alongside her own petition. Conversely, Dhananjay filed a counter-application seeking the transfer of Sonali's Nashik petition to the Chandrapur court.

Justice N.J. JAMADAR of the Bombay High Court presided over the hearing of these transfer applications. The core legal question revolved around determining the "ordinary residence" of the minor, "V," as Section 9 of the Guardians and Wards Act dictates that guardianship applications concerning the person of a minor should be filed in the district court where the minor ordinarily resides.

Counsel for Sonali argued that given the history of marital discord between Monali and Dhananjay, which led to Monali residing with "V" at her parental home for over a year prior to the accident, and the subsequent care provided by Sonali in Nashik, "V's" ordinary residence is now Nashik. The inconvenience and hardship to both Sonali and the child if forced to litigate in Chandrapur were also emphasized.

On the other hand, the counsel for Dhananjay contended that "V" was ordinarily residing in Bramhapuri, Chandrapur district, with her mother at the time of the accident and was even enrolled in a school there. The move to Nashik by Sonali, it was argued, was an unauthorized removal and should not confer jurisdiction on the Nashik court.

The High Court, after a detailed examination of the facts and relevant legal precedents, including the Supreme Court's interpretation of "ordinary residence" in Ruchi Majoo Vs Sanjeev Majoo, concluded that the concept of ordinary residence necessitates a factual inquiry beyond mere physical presence at a particular date. The court emphasized that factors such as the circumstances leading to the minor's residence at a place and the minor's welfare are crucial considerations.

Justice N.J. JAMADAR noted that considering the strained marital relationship between "V's" parents and the fact that "V" had been living with her mother away from her father for a significant period before the accident, Sonali's act of taking responsibility for the orphaned child and bringing her to her own residence in Nashik could not be termed a "surreptitious removal." The court further acknowledged that "V" has since established roots in Nashik, including enrolling in school.

Balancing the convenience of the parties, the court found the significant distance between Nashik and Chandrapur would cause undue hardship, particularly to Sonali and potentially to the child, who might be required to attend court proceedings.

Consequently, the High Court rejected Dhananjay's application for transfer and allowed Sonali's application. The Guardian Ward Case pending in Chandrapur has been ordered to be transferred to the Family Court in Nashik. The Principal District Judge in Chandrapur has been directed to transfer the case records to Nashik within four weeks.

The Nashik Family Court has been requested to expedite the guardianship petitions and preferably decide them within nine months from the parties' appearance. The parties are scheduled to appear before the Nashik Family Court on June 10, 2025. The court order concluded with no order as to costs.

This case underscores the judiciary's sensitive approach in matters of child custody and guardianship, particularly in tragic circumstances, prioritizing the child's well-being and the practicalities of their upbringing when determining the appropriate legal forum.


Section 24., Code of Civil Procedure - 1908  

Code of Civil Procedure, 1908  

Guardians and Wards Act, 1890  

Protection of Women from Domestic Violence Act, 2005