The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRP No.27 of 2022 SthitiprangyaSatapathy and another …. Petitioners Mr. Kishore Kumar Mishra, Advocate -versus- BasudevMohapatra …. Opposite Parties Mr. Satyabrata Mohanty, Advocate CORAM: HON’BLE MR. JUSTICE MURAHARI SRI RAMAN ORDER 26.09.2024 Order No. 14. This matter is taken up through Hybrid Mode. 2. Challenging the order dated 22.10.2022 passed by the learned Judge, Family Court, Cuttack in Civil Proceeding No.643 of 2021 rejecting the petition dated 30.08.2022 raising question of maintainability of the said proceeding instituted under Section 7 of the Guardians and Wards Act, 1890 (“G and W Act”, for short), the petitioner has approached this Court by way of filing this civil revision petition craving to exercise powers under Section 115 of the Code of Civil Procedure, 1908 (“ the CPC”, for short) with the following prayer:- “ It is, therefore, prayed that this Hon‟ble Court may graciously be pleased to admit this revision, call for the records pertains to C.P. No.643 of 2021 pending in the Court of the learned Judge, Family Court, Cuttack and after hearing the parties set-aside the order under Annexure-5 dt.22.10.2022. Page 1 of 19 And pass any appropriate order/orders as deem fit and proper in the facts and circumstances of the case; And for this act of kindness, the petitioners as in duty bound shall ever pray.” 3. Shorn off unnecessary details of facts, suffice it to notice that the opposite party-husband of the petitioner filed a petition being Civil Proceeding No.643 of 2021 in the Court of Judge, Family Court, Cuttack under Section 7 of the Guardians and Wards Act, 1890 with the following prayer:- It is therefore prayed that your Honour will be “ graciously pleased to admit the case, issue notice to the Opp. Parties and after hearing allow the petition by passing necessary order by directing the Opp. Party No.1 to hand over the custody of the Opp. Party No.2 to the petitioner on Holidays to take the Opp. Party No.2 to his house and to spend time with her in addition to that the Visitation and contact right over the Opp. Party No.2 also be given to the petitioner being her father to talk to her over phone and Mobile Video Call for 10 to 15 minutes everyday to share his love and affection with the child in the interest of proper development of personality, welfare, intelligence and character in the company of her father who is the petitioner in this case. And for this said act of kindness the petitioner as in duty bound shall ever pray.” 3.1. The petitioner no.1 had filed Civil Proceeding being C.P. No.199 of 2021 before the Court of the Judge, Family Court, Bhubaneswar under Section 13(1) of the Hindu Marriage Act, 1955 before the learned Judge, Family Court, Bhubaneswar against the opposite party for divorce. On the other hand, the opposite party also filed C.P. No.417 of 2021 before the said Family Court, Bhubaneswar Page 2 of 19 under Section 9 of the Hindu Marriage Act, 1955 with a prayer for restitution of conjugal right. 3.2. Despite being aware of the provisions of law under Section 26 of the Hindu Marriage Act, 1955 or under Section 38 of the Special Marriage Act, 1954, instead of approaching the learned Judge, Family Court, Bhubaneswar for passing of an interim order with regard to custody of petitioner no.2 (minor child), the opposite party has filed the C.P. No.643 of 2021 in the Court of the Judge, Family Court, Cuttack. 3.3. The petitioner no.1 filed TRP(C) No.32 of 2022 before this Court after receiving the notice in C.P. No.643 of 2021 with prayer to transfer the proceeding from the Court of the learned Judge, Family Court, Cuttack to learned Judge, Family Court, Bhubaneswar. This Court vide order dated 31.03.2022 disposed of the said TRP(C) No.32 of 2022 with the following observation:- “***4. The petitioner has sought for transfer the aforesaid Civil Proceeding on the ground that the divorce case in C.P. No.199 of 2021 filed by the Petitioner-wife and the petition in C.P. No.417 of 2021 filed by the Opposite Party-husband for restitution of conjugal rights are pending before the Court of Judge, Family Court, Bhubaneswar. 5. The case pending at Cuttack is not required to be tried analogously with the cases pending at Bhubaneswar. The distance that can be covered hardly within one hour. Ordinarily the Court having jurisdiction should try a case, but transfer of the same can be made in exceptional circumstances under Section 24 of the Code of Civil Procedure, if sufficient cause is shown. 6. Here in this case, the ground sought for being not convincing, the Court is not inclined to transfer the Civil Proceeding No.643 of 2021 to the Court of Judge, Family Court, Bhubaneswar.” Page 3 of 19 3.4. The Petitioner by filing objection to the petition under Section- 7 of the G and W Act, 1890 before the learned Judge, Family Court, Cuttack referring to Section-9 thereof submitted that the said Court has no jurisdiction to entertain the application but the said Family Court, Cuttack has rejected the petition dated 30.08.2022, wherein the question of maintainability has been raised with respect to jurisdiction of the learned Judge, Family Court, Cuttack. The learned Judge, Family Court, Cuttack while rejecting the said petition vide order dated 22.10.2022 passed the following order:- “*** Perused certified copy of order dtd. 31.03.2022 passed by Hon‟ble High Court of Orissa in TRP(C) No.32/2022, wherein Hon‟ble Court has observed that this proceeding is not required to be tried analogously with the cases pending at Bhubaneswar. Ordinarily the Court having jurisdiction should try a case, but transfer of the same can be made in exceptional circumstances u/s 24 of the Code of Civil Procedure, if sufficient cause is shown. 5. It reveals from the original petition filed by the petitioner U/s.7 of the Guardians and Wards Act, 1890 that respondent no.2 is residing with her mother respondent no.1 voluntarily left the company of the petitioner on 12.06.2020. Respondent no.2 is prosecuting her study in Dream India School, CDA, Cuttack since 11.02.2020. The petitioner was also sending money to respondent no.1 for payment of tuition fees regularly. From the above statement of the petitioner, it reveals that before separation of petitioner and respondent No.1, respondent no.2 was prosecuting her study in Dream India School, CDA, Cuttack. Therefore, this Court holds that ordinary place of residence of respondent no.2 is CDA, Cuttack. Hence, this Court has territorial jurisdiction for adjudication of this application made under Section-7 of Page 4 of 19 the Guardians and Wards Act, 1890. Accordingly, this petition dtd.30.08.2022 stands rejected.” 4.
Legal Reasoning
At the outset, Mr. Kishore Kumar Mishra, learned counsel appearing for the petitioners submitted that in TRP(C) No.32 of 2022 before this Court there was no issue raised with respect to jurisdiction of the learned Judge, Family Court, Cuttack to entertain an application under Section-7 of the G and W Act, 1890. However, while declining to transfer the Civil Proceeding No.643 of 2021 to the Court of learned Judge, Family Court, Bhubaneswar, it was observed that application under Section-7 of the G and W Act, 1890 need not be tried analogously with the cases pending before the learned Judge, Family Court, Bhubaneswar. In the said order dated 31.03.2022, this Court has also observed that “Ordinarily the Court having jurisdiction should try a case”. Therefore, sufficient indication is manifest from the said order that the learned Judge, Family Court, Cuttack while entertaining the petition under Section-7 of the G and W Act, 1890 is competent to first take up the issue of jurisdiction. 4.1. He further submitted that in view of Section-9 of the G and W Act, 1890, since there is no dispute that the minor child is residing with her mother in Bhubaneswar in the District of Khordha, the Family Court, Cuttack lacks jurisdiction to entertain the application under Section-7 of the said Act. 5. Mr. Satyabrata Mohanty, learned counsel appearing for the opposite party submitted that his child-petitioner no.2 was studying in Cuttack. By way of filing a petition under Section 7 of the G and W Act, 1890, the opposite party, being father, has merely prayed for visiting right and contact the child over phone/video call. Page 5 of 19 5.1. He, having drawn attention to order dated 31.03.2022, submitted that while rejecting the transfer petition, this Court, though was aware of such a petition under Section-7 of the G and W Act, 1890 (Civil Proceeding No.643 of 2021), held that the said petition need not be tried analogously with the cases pending at Bhubaneswar. Therefore, the learned Judge, Family Court, Cuttack has rightly rejected the petition dated 30.08.2022 filed by the petitioner raising issue of maintainability. 6. On consent of both the counsel for parties, this matter is taken up for final hearing at the stage of admission. 6.1. Heard Mr. Kishore Kumar Mishra, learned counsel appearing for the petitioners and Mr. Satyabrata Mohanty, learned counsel appearing for the opposite party. 7. Considering the rival contentions and submission made by the learned counsel for the parties, before touching the merit of the matter, it is apt to refer to Section 9 of the G and W Act, 1890, which reads 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.***” 8. Bare reading of Section-9(1) of the said Act as extracted herein above, it is revealed that the District Court where the minor child “ordinarily resides” has the jurisdiction over the subject matter under Section-7 of the said Act. Page 6 of 19 9. This Court having taken note of Section 9 of the Act in the case of Dilip Kumar Behera vs. PuspanjaliBehera, 2015 (II) OLR- 917 interpreted the connotation of the term “ordinarily resides” and observed as follows:- “10. Place of ordinary residence in various dictionaries and lexicons has been described differently. In one of the law lexicons, „ordinarily‟ does not mean solely or in the main. It only means regularly and habitually, not casually whether it be for a larger or smaller portion of the day. In yet another lexicon, the word „ordinarily‟ means “habitually and not casually‟, it may not obviously means always”. The plain and popular meaning of the word ordinarily means usually enormously and exceptionally as contrasted with extra-ordinarily. Thus, there is no gain saying that the aforesaid order „ordinarily‟ has been given different contextual meanings in different factual situations. the interpretation of the ward/minor. The 11. Guardians and Wards Act is a beneficial legislation for the benefit of the minor/ward. The object and legislative intent is well perceptible from the various provisions of the Act, reading of which without ambiguity indicates that the same has only been for the term benefit of “ordinarily resides”, therefore, has to be made in such a background. Since the term “ordinarily resides” is to be interpreted contextually, therefore, it cannot be divested of the factual matrix. It is not a pure question of law, but much is dependent upon the for facts and circumstances. The solitary concerned determining the scope of the term “ordinarily resides”, therefore, depends upon the pleadings of the parties and the preceding happenings in between them. While analyzing the said aspect, the Hon‟ble Supreme Court in the case of Ruchi Majoo Vrs. Sanjeev Majoo, 2011 (I) OLR (SC) 1212, in paragraph-14 has observed thus: test “It is evident from a bare reading of the above that the solitary test for determining the jurisdiction of the Court under Section 9 if the Page 7 of 19 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…..” *** 15. At this juncture, it will but be appropriate to advert to some of the decisions relied upon by either side. Learned counsel for the appellant cited before us the decisions in (1) Acharya Sri. KundariMaharaj v. Smt. Indra, AIR 2004 Rajsthan 90; (2) Jagdish Chandra Gupta v. Dr.KumariVimla Gupta, 2003 (3) AWC 2133; (3) KonduparthiVentateswarlu v. RamavarapuVirojaNandan, AIR 1989 Orissa 151; (4) Smt. JeewantiPandey v. Kishan Chandra Pandey, AIR 1982 SC 3; (5) JagirKaur v. JaswantSsingh, AIR 1963 SC 1521; (6) Union of India v. DudhNath Prasad, AIR 2000 SC 524; and (7) BhagwanDass v. Kamal Abrol, AIR 2005 SC 2583. In the first decision, the appellants were the grandfather and grandmother of the minor children Rohit and Mohit and they had approached the Family Court at Jodhpur for their custody. Father of the children Purandass had died on 09.08.1999. Post demise of the husband, the wife Smt. Indira was given compassionate appointment in the Municipal Corporation, Jodhpur, from where she sought transfer to Jaipur and settled there. The mother subsequently solemnized second marriage with one Krishna Kumar, with whom she gave birth to a female child. After vetting through the pleadings and looking to the facts and circumstances, in the aforesaid decision a Division Bench of Rahsthan High Court rejected the claim of the appellant-grand parents and held that the ordinary place of residence will be with the mother of the wards at Jaipur. This decision, in our opinion, is against the case pleaded by the appellant himself. 16. Page 8 of 19 in altogether different As regards the decision in Jagdish Chandra Gupta (supra), facts and the same was rendered circumstances, which are not akin to the facts of the present appeal. That was a case where the child was adopted. The mother had paralysis stroke and, therefore, she along with the minor came to Kanpur. That is not the facts situation here. However, it was observed in the aforesaid decision in paragraph-20 as under : - “The expression „ordinarily resides‟ and residing at the time of the application are not synonymous and stipulate different situations which are not interchangeable. 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 to which the minor may be removed at or about the time of 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.” So far as the decision in KonduparthyVentateswarlu (supra) is concerned, what we find is that the same was also rendered in altogether different facts and circumstances. The appellants were in the custody of the minor child of respondent no. 1 after the death of the wife of respondent no. 1 at Visakhapatnam. Since the appellants were the in-laws of respondent no. 1, they refused to return the child to the father-respondent no. 1. Respondent no. 1 approached the District Judge, Ganjam under section 25 of the Act, who rejected the same opining that it is the District Judge having jurisdiction in the place where the minor ordinarily resides can entertain such an application. The Division Bench of this Court, after examining the facts and circumstances, ultimately concluded that the District Judge, Ganjam, who was approached by respondent no. 1-father under Section 25 of the Act, had the jurisdiction because the ordinary place of residence of the child Page 9 of 19 would be with his father. The deceased mother had taken the child along with her to her parental house, where she had gone for the purpose of it will not make Visakhapatnam, where her parents lived, the ordinary place of residence of the child. This decision, in our humble opinion, goes against the case pleaded by the appellant. treatment, and, therefore, The decision in Smt. Jeewanti Pandey (supra) has been rendered in entirely different set of circumstances. In paragraphs- 12 and 13 of the said decision, it has been observed as below : - “12. 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 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 well 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 to make an abode Page 10 of 19 physical habitation is the place where he actually or personally resides. 13. It is plain in the context of Clause (ii) of Section 19 of the Act that the word „resides‟ must mean the actual place of residence and not a legal or constructive residence; it certainly does not connote the place of origin. The word „resides‟ is a flexible one and has many shades of meaning, but it must take its colour and content from the context in which it appears and cannot be read in isolation. It follows that it was the actual residence of the appellant, at the commencement of the proceedings, that had to be considered for determining whether the District Judge, Almora had jurisdiction or not. That being so, the High Court was clearly in error in upholding the finding of the learned District Judge that he had jurisdiction to entertain and try the petition for annulment of marriage filed by the respondent under Section 12 of the Act.” The said decision is also of no help to the appellant and it does not support the submission of the learned counsel for the appellant. Coming to the decision in JagirKaur (supra), the same was rendered under the Code of Criminal Procedure in respect of maintenance and, therefore, has got no relevance to the facts of the present appeal. The decision in Union of India v. DudhNath Prasad relates to maintenance of Scheduled Castes and Scheduled Tribes order and, therefore, is also not relevant and germane to be discussed in detail. The decision in BhagwanDass (supra), which is the last in the series, is also not relevant as it is relatable to Hindu Marriage Act and not the Guardians and Wards Act. 17. On the other hand, the decisions, which were relied upon and cited before us by the learned counsel for the respondent-wife Page 11 of 19 are (1) RuchiMajoo v. SanjeevMajoo, 2011 (I) CLR (SC) 1212; (2) Harihar Prasad Jaiswal v. Suresh Jaiswal, AIR 1978 AP 13; and (3) Smt. Vimala Devi v. Smt. Maya Devi, AIR 1981 Rajasthan 211. The observations made by the Hon'ble Apex Court in the first decision, relevant for the present purpose, have already been indicated at page-5 of this judgment. In the next decision, the Hon'ble Apex Court has dealt with the concerned aspect from paragraph-4 onwards and has been pleased to lay down the following law : - “If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian. The expression „Court‟ has been defined under S. 4(5)(a) as the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian. Hence we have to see which is the District Court that has got jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian. This is dealt with by S. 9 which says 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. From these provisions, it is clear that an application under S. 25 of the Guardians and Wards Act has to be filed in the District Court having jurisdiction in the place where the minor ordinarily resides. Hence the crucial question which falls for consideration is what is meant by the expression „Where the minor ordinarily resides‟. In Lalita Twaif v. Paramatma Prasad (AIR 1940 All 329), it is pointed out that the minor‟s actual place of residence at the time Page 12 of 19 of application under S. 9(1) does not determine the jurisdiction of the Court. It must be proved where the minor ordinarily resides as laid down in S. 9(1) of the Act. Relying on this decision, the learned counsel for the petitioner contends that the minor must be deemed to be ordinarily residing at Hyderabad which is the place of residence of her natural guardian who is the father. In the aforesaid case, the facts are that the mother took away the minors to Shadibad where her parents resided about three or four months before the application was made. Before that the minors and their mother were living for several years in Benaras where her husband had lived, within the jurisdiction of the District Judge at Benaras. It was under those circumstances the Court has held that the Court at Benaras had jurisdiction as Beneras was the place where the minor should be deemed to have their ordinary residence. The mere fact that the minor had been taken by their mother to Shadiabad when she went for a visit, would not make Shadiabad as the place of ordinary residence of the minor. I do not see how this decision helps the case of the petitioner and the said case is easily distinguishable on two grounds. One is that the mother had taken the children to her father's place to which she goes off an on, on some visits and it was only about three or four months before the filing of the application that the minors were taken away to their mother's place at Shadiabad and were staying there. But in the present case from the pleadings, it appears that the minor girl was living with the mother from the year 1970 either at Nagpur or at Tumsar in Maharashtra State and the present application has been filed in the year 1975. Further it was not for the purpose of any visit that the minor was taken by respondent No. 3, but due to estrangement between herself and the petitioner whatever the reasons might be. Hence, this decision is of no use to the petitioner. Coming to the last decision, i.e., Smt. Vimala Devi (supra), the opinion of the Hon‟ble Single Judge of the Rajsthan High Court is contained in paragraphs-11 to 14, which is reproduced herein below : - Page 13 of 19 “11. Section 4(5) of the Act defines „the Court‟. Sub-clause (ii) of Clause (b) of sub-section (5) of Section 4 reads as follows: (ii) in any matter relating to the person of the ward, the District Court having jurisdiction in the place where the ward for the time being ordinarily resides; or Section 9 relates to the jurisdiction of theCourt to entertain an application. It is reproduced in extenso : - (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. Section 25(1) amongst others provides that if a ward is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of the guardian, may make an order for his return. An analysis of S. 9 shows (i) that if an application is for the guardianship for the person of the minor, it is required to be made to the District Court having jurisdiction in the place where the minor „ordinarily resides‟; (ii) if the application is with respect to the guardianship of the property of the minor, it can be made, (a) either to the District Court having jurisdiction in the place where the minor „ordinarily resides‟, or (b) to a District Court having Page 14 of 19 jurisdiction in a place where he has property; and (iii) if an application is made with respect to the guardianship of the property of a minor to a District Court other than that having jurisdiction I the place where the minor „ordinarily resides‟, the Court has been empowered to return the application if in its opinion that application can be disposed of more justly or conveniently by any other District Court having jurisdiction. Thus, it follows from Section 9 of the Act that if a composite application for the guardianship of the person and property of the minor is made, it may be made to the District Court having jurisdiction in the place where the minor ordinarily resides. This is the case before me as a composite application for the guardianship of the person and property of the minor was moved before the District Judge, Bhilwara stating that the minor ordinarily resides within the jurisdiction of the District Court, Bhilwara and where he has property also. As a matter of fact, as is clear from the impugned order of the learned District Judge that on behalf of the appellant, it was submitted that as the minor (SushreeMeena) ordinarily resided at the time of the presentation of the application within the jurisdiction of the District Court, Bhilwara, that Court has jurisdiction to hear the application. It has not rightly been disputed that a question whether or not a minor ordinarily resides within the jurisdiction of the Court has to be decided on the facts and circumstances of each case. This has necessitated the examination of the question whether the minor SushreeMeena will be deemed to have ordinarily resided at Bhilwara within the jurisdiction of the District Court, Bhilwara from where Smt. Maya Devi (respondent No. 1) removed her from the custody of her natural guardian Sushil Kumar. 12. In Ram Sarup‟s case (AIR 1952 All 79). A Division Bench of the Allahabad High Court held that the place of resident of the minors at the time of application should be held to be the place where they resided with their mother. Page 15 of 19 13. A learned single Judge of the Allahabqd High Court in Smt. Kamla's case (AIR 1956 All 328) had occasion to consider the words „Ordinarily resides‟ as used in S. 9 of the Act. It was observed as follows (at p. 330) The past abode, for however long a period it may be, cannot be considered to be the place where the minors are residing. The words used are in the present tense, i.e., where the minor ordinarily resides. In that case, the view taken by the learned Judges in Lakshman v. Ganga Ram, AIR 1932 Bom 592 was dissented from and after following the observations made in Ram Sarup's case (AIR 1952 All 79) and noticing Smt. VimlaBai's case (AIR 1951 Nag 179), the learned Judge reached the conclusion that as the mother is actually residing at Roorkee and, therefore her children would also be deemed to be residing at Roorkee. 14. The same learned single Judge again explained the expression „ordinarily resides‟ as used in Section 9 of the Act in Jamauna Prasad's case (AIR 1969 All 285). He, inter alia, noticed Vimlabai‟s case (AIR 1951 Nag 179), Ram Sarup's case (AIR 1952 All 79), Chandra Kishore‟s case (AIR 1955 All 611) and Smt. Kamla‟s case (AIR 1956 All 328) and observed as under (at p. 288 of AIR 1960 All) In my opinion the words „ordinarily resides‟ have a different meaning than „residence at the time of the application‟. Both may be identical or my be different. That would depend on the facts of each particular case. To interpret the words „where the minor ordinarily resides‟ to mean „where the minor actually resides at the time of application‟ may in some cases amount to rendering nugatory all the provisions of the Guardians and Wards Act. It may be that persons who have absolutely no right may remove the minor forcibly and keep him at a distant place, when the application is made, where the minor was ordinarily residing, and objection may be taken that the application was not entertainable. Page 16 of 19 In that event, the residence may depend on the machinations of recalcitrant persons. It may be that in the Bombay case on the facts the Bench had come to the conclusion that the place where he was residing at the time of the application was the place where he was ordinarily residing. But it cannot be held as a proposition of law that it will always be the same.” 10. With the aforesaid perspective, learned counsel for the petitioners, brought to the notice of this Court the fact, as admitted by the opposite party, that the minor child resides with the mother in Bhubaneswar. Such fact is apparent from the cause title of the case record of the opposite party, which is to the following effect: “1. Smt. Sthitiprangya Satapathy, Aged about 33 years, Wife of Basudev Mohapatra, D/o. Rabindra Chandra Satapathy, Occupation-Housewife. Permanent address:- At/PO/P.S-Tirtol, Dist. Jagatsinghpur Present address:- D/o. Rabindra Chandra Satapathy, At-Krishna Cottage, Plot No.349 Madhusudan Nagar, Near New Bus Stand, P.O. Pallhat, Near Canara Bank, P.S./Dist, Khurda. At present Sitanathnagar, P.O. SailashreeVihar, P.S. Chandrasekharpur, Bhubaneswar, Dist. Khurda. 2. Arjya Adyasa Mohapatra, Aged about 5 years, D/o.-The petitioner and opposite party no.1, being minor, represented through mother guardian-opposite party no.1, as she is staying with her mother with care and custody.” Page 17 of 19 11. This Court finds that there is no dispute set up by the opposite party (husband of the petitioner) with regard to fact that minor child resides with her mother (guardian). Therefore, since the opposite party admits such a fact and does not dispute at any point of time, it is appropriate to observe bearing in mind the meaning of the term “ordinarily resides” as interpreted by this Court in Dilip Kumar Behera (supra) that the minor child resides in Bhubaneswar with her mother. 12. Reading the provisions of Section-9, it is apparent that while entertaining an application under Section-7 of the G and W Act, the Court is required to first determine its own jurisdiction to proceed with such application. When the provision contained in sub-section (1) of Section-9 admits of no ambiguity with respect to jurisdiction of the Court that it is the “District Court having jurisdiction in the place where the minor ordinarily resides”, the learned Judge, Family Court, Cuttack should have considered his jurisdiction to proceed with the matter. 13. It is trite that even by way of acquiescence or consent of parties, no jurisdiction can be conferred on any Court. To a query of this Court to learned counsel for the opposite party whether the child is still studying in Cuttack, he replied in the negative. From the facts as adumbrated by the petitioners as well as the opposite party it is manifest that the minor child “ordinarily resides” with her mother in Bhubaneswar and the learned Judge, Family Court, Cuttack has no jurisdiction to entertain the application under Section 7 of the G and W Act. Page 18 of 19 14. Perusal of the impugned order dated 22.10.2022, it is revealed that the learned Judge, Family Court at Cuttack has proceed with the matter as if even after the petitioner left the company of the opposite party on 12.06.2020, the child is prosecuting her studies in Cuttack. Therefore, it appears under misconceived notion the learned Court has assumed jurisdiction to entertain the petition under Section-7 of the G and W Act. 15. With the aforesaid discussions and legal positions as set forth with regard to interpretation of Section 9 of the G and W Act, there is no other possible view than to hold that the learned Judge, Family Court, Cuttack has exercised the jurisdiction not vested in him by law. 16. In fine, the impugned order dated 22.10.2022 passed by the learned Judge, Family Court, Cuttack under Annexure-5 rejecting the petition dated 30.08.2022 of the petitioner is set aside. 17. As a consequence thereof, the civil revision petition is allowed. Laxmikant Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Sep-2024 14:05:30 (M.S. Raman) Judge Page 19 of 19