Child Under Five Is Presumed to Reside with Mother: Orissa High Court Affirms Jurisdiction of Boudh Family Court in Guardianship Petition

Territorial Jurisdiction in Custody Disputes Is Not a Game of Addresses—It’s a Matter of Evidence and Welfare – In a pivotal ruling that safeguards the rights of mothers in guardianship disputes, the Orissa High Court dismissed a revision petition filed by a father challenging the territorial jurisdiction of the Family Court at Boudh, where his estranged wife had filed a guardianship petition seeking custody of their five-year-old son.

Justice A.C. Behera emphatically held that “when a child has not completed five years, the law presumes his ordinary residence to be with the mother”, and such a presumption cannot be displaced without factual inquiry. The Court refused to entertain the father’s plea filed under Order 7 Rule 11(d) of the CPC seeking rejection of the mother’s petition on the ground of lack of territorial jurisdiction.

“Jurisdiction Cannot Be Dismissed as a Pure Question of Law When the Child Is Forcibly Kept Away”
The dispute arose when Santosini Khandei, alleging mental and physical abuse, was driven out of her matrimonial home and separated from her minor son, Rudranarayan, who was retained by her husband and in-laws. She filed a petition under the Guardians and Wards Act, 1890 in the Family Court at Boudh, seeking appointment as the child’s guardian.

Her husband, Rankanath Khandei, objected, stating that the child was residing with him in Nayagarh, and hence the Family Court at Boudh lacked jurisdiction. However, the High Court disagreed, emphasizing that the phrase “where the minor ordinarily resides” in Section 9 of the Guardians and Wards Act is not to be interpreted mechanically.

“Whether the minor resides ordinarily in the house of the opposite party is not capable of being answered without any enquiry into the factual aspects of the controversy,” observed Justice Behera.

The Court noted that the wife’s allegations of desertion and forcible separation cannot be brushed aside at the threshold stage, especially when the petition pertains to a child of tender age.

“When the Child Is Less Than Five, He Is Deemed to Reside with the Mother”
Drawing from precedent, the Court reaffirmed that in matters concerning very young children, the law grants the mother presumptive residence of the minor. Referring to Sarabjit v. Piara Lal, Ruchi Majoo v. Sanjeev Majoo, and the Kerala High Court’s decision in S. Prabhu v. Rajani R, Justice Behera observed:
“A child who has not completed five years in age shall be deemed to reside with the mother.”

He further added that “jurisdiction under the Guardians and Wards Act is governed by the fact of ordinary residence, which itself is a mixed question of law and fact, and cannot be resolved through a technical objection.”

The Court emphasized that Order 7 Rule 11(d) is not a tool to prematurely shut down custody litigation when allegations are serious and require evidence.

“A Mother's Right to Seek Custody Cannot Be Denied Without Due Inquiry”

The Court found no merit in the husband's argument that because the child was physically present in his custody, the Family Court at Boudh lacked jurisdiction.

“The solitary test for determining the jurisdiction of the court under Section 9 is ‘ordinary residence’ of the minor… which is a question of intention, and thus a question of fact,” held the Court, citing Ruchi Majoo.

Justice Behera added that “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.”

“If the Family Court’s Door Is Closed on Technicalities, the Welfare of the Child Stands Compromised”
Ultimately, the High Court dismissed the father’s revision petition, affirming the order of the Family Court and directing it to adjudicate the guardianship application on both merits and jurisdictional aspects, after taking evidence from both sides.

“The learned Judge, Family Court, Boudh is directed to decide the GUAP No.07 of 2023 as per law… after taking evidence from both the sides as expeditiously as possible.”

This ruling serves as a powerful affirmation that technical pleas cannot be allowed to override the core objective of custody law—the welfare of the child.

Date of Decision: 17 April 2025