(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV) 1 Heard the learned counsels appearing for the respective parties. With consent of the learned advocates appearing for the respective parties, the First Appeal No. 1268 of 2023 is taken up for final hearing today. 2 Admit. Both the learned counsels for the respective parties waive service of notice of admission. 3 First Appeal No. 1268 of 2023 has been filed by the appellant, Amit Dhansing Jagtap & Anr, wherein, challenge is to the order dated 11.10.2022 passed by the Principal Judge, Family Court, Navsari, in Exh.14 preferred by the appellants in Civil Miscellaneous Application No. 12 of 2022. The Exh.14 application of the appellants questioning the jurisdiction of the Navsari Court was rejected. Civil Miscellaneous Application No. Page 2 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined 12 of 2022 was filed by the appellant of First Appeal No. 4464 of 2023 praying for custody of minor child Varad before the Navsari Court. In the custody application, since the Family Court by its order dated 12.06.2023 did not give custody of the child to the father, hence First Appeal No. 4464 of 2023, is filed by the father challenging the order refusing the interim custody. 4 We have heard First Appeal No. 1268 of 2023 as it involves consideration of an order below Exh.14, by which, the Court at Navsari held that it had jurisdiction to entertain the custody application.

5 In the main application for custody filed by the father, Chandrashekhar Uttamrao Shinde, under Sec.9 of the Guardians & Wards Act, 1890, it was the case of the father that he was engaged as an Assistant Professor at Navsari Agricultural University since 02.03.2013. He entered into matrimony with the deceased Mayuriben on 26.04.2016. The marriage took place at Baramati, Page 3 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined Maharashtra. The father in his application for custody of the minor son Varad stated that out of the wedlock, Varad was born on 12.08.2017. During the currency of the marriage, the wife and the son kept on traveling between Navsari and their hometown at Baramati. Unfortunately, on 15.09.2021, Mayuriben, the wife committed suicide. The application further states that on the next day i.e. on 16.09.2021, the family of Mayuriben, i.e. the appellants of First Appeal No. 1283 of 2023, the family of Mayuriben which included the appellants, came to Navsari and took away the child together with the body of the mother to their village Pandare, i.e. the maternal home of the deceased mother. The last rites took place on 17.09.2021. The application for custody further states that the custody of the child Varad was forcibly taken away by the in-laws and it is in that context that the child was taken to Baramati, whereas, prior thereto, i.e. the death of his wife and the mother of the child, the child continued to be residing with the father at Navsari. It is in the background of these facts that the application for custody Page 4 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined of the child Varad was made before the Navsari court. 5.1 It is thereafter, that the appellants of the First Appeal No. 1268 of 2023, the maternal uncle and maternal grand parents of the child made an application Exh.14 disputing the jurisdiction of the Navsari Court. In the application so filed, it was the case of the appellants of this appeal that the child Varad was actually residing at Pandhare, Taluka: Baramati, that is in Pune. Being a resident of the State of Maharashtra, the Navsari Court would have no jurisdiction. The Court rejected the application.

5.2 Before the Family Court, as is evident from the impugned order, two Aadhar Cards were produced. One by the father Chandrashekhar Uttamrao Shinde showing an address of Koparde, Taluka: Khandala, District: Satara and the other Aadhar Card produced by the appellants (maternal grand parents) showing the address in the Aadhar Card of the child at Village: Pandare, Taluka: Page 5 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024

6 Mr.Parth Thummar, learned counsel appearing for the appellants would take us through the relevant dates. He would submit that after the marriage, the birth of the child was on 12.08.2017, the mother Mayuriben died on 15.09.2021. The last rites took place on 17.09.2021 and till the application for custody was filed on 05.05.2022, the child indisputably after his mother's death was residing in Maharashtra, and therefore, the observation Page 6 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined of the Trial Court that since in the past he was residing in Navsari was erroneous. He would submit that the very fact that Varad was in Maharashtra on the date when the custody application was filed and months preceding thereto, it should have been taken as an undisputed fact that the child was ordinarily residing in Maharashtra. 6.1 Mr.Thummar, learned counsel, would take us through the provisions of Sec.9 of the Guardians & Wards Act. Since we had also asked Mr.Thummar, to address us on the question of maintainability of the appeal, in support of the fact that the appeal was maintainable though, it was an application of interim nature and barred by Sec.19 of the Family Courts' Act, Mr.Parth Thummar, learned counsel, has cited the following decisions:

NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined 6.2 On the issue of interpretation of the term "ordinarily resides", Mr.Thummar, learned counsel, cited decision in the case of Salini Vs. Umasankaran. , reported in 2016 SCC OnLine Ker 29041. Reading the relevant paragraphs of the decision, Mr.Thummar, learned counsel, would submit that since welfare of the child is of paramount importance, that was an issue which the jurisdictional Court can take into consideration. Undisputed and factual averments indicated that the child Varad was in fact staying in Maharashtra, and therefore, since Maharashtra being the permanent residence, the Court at Navsari would have no jurisdiction. Varad for a considerably long period was in Pune which should have weighed in favour of the appellants. He would submit that importance of attendant circumstances was also considered by the Kerala High Court. In the facts of this case, since the mother has committed suicide, the father did not deserve the custody of the child. He would rely on a decision in the case of Ram Sarup Vs. Chimman Lal. , reported in 1951 SCC Page 8 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined OnLIne AII 238., to submit that the learned judge has committed an error to construe the fact of past residence to mean as "ordinary residence". Reliance was also placed on a decision in the case of Kiritbhai Meghjibhai Rathod Vs. Kanjibhai Virabhai Solanki. , rendered in Appeal From Order No. 95 of 2022 dated 25.09.2023, on the ground that it would be applicable in the facts of the present case. That there cannot be a presumption that the ordinary residence would mean the residence where the natural guardian would reside. Reliance was also placed on a decision in the case of Dilip Kr.Behera Vs. Puspanjali Behera. , reported in AIR 2015 Ori

200., to submit that the term "ordinarily resides" cannot be said to mean "would have resided or should have resided".

7 Mr.Manan Paneri, learned counsel for the respondent - father would make the following submissions:

8.1 The second question also is whether the Trial Court could have extensively referred to the definition of "the Court" under Sec.4(5)(ii) , rather than Section 9 of the Act. In other words, unless and until the term "ordinarily Page 12 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined resides" is extensively decided by leading evidence by the parties.

8.2 In the facts of this case, the question that needs to be answered is whether merely past instances of the child's residence in Navsari could have solely been the weighing factor for rejecting the application under Sec.9 of the Act [rather then dwelling on Sec.4(5)(ii) ]. It is in light of this that we may consider decisions cited by the counsels for the respective parties. Since we had asked Mr.Thummar, learned advocate, to address us on the maintainability of the first appeal, two decisions, of the Kerala High Court and the Bombay High Court have been cited before us i.e. Madhavan (supra) and Ravindra Harshad Parmar (supra). The Bombay High Court in Ravindra Parmar (supra), has held that when an order deciding the question of jurisdiction of the Court to entertain and try the proceedings is an order which cannot be subject to a change or a subsequent correction, the proceedings cannot be said to be interlocutory in Page 13 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined nature.

8.3 Here is a case where an application for jurisdiction of the Court has been rejected. We are also conscious of a Division Bench judgement of this Court in the case of Rajan Ankleshwaria S/o Manojkumar Babulal Ankleshwariya Vs. Vinni Ankleshwariya D/o mahesh Gulshanrai Malhotra W/O Rajan Ankleshwaria reported in (2024) 3 GLR 1810, wherein in the facts of the case, the Division Bench in para 15 and 16 held as under:

8. Further, in the case of Madhu Limaye vs State of Maharashtra , reported in (1977) 4 SCC 551, the Hon'ble Apex Court has made following observations with regard to the criterion of interlocutory order:-

(2) Yet, in another decision of Hon'ble the Apex Court in the case of Honnaiah T.H. v. State of Karnataka and others reported in 2022 LiveLaw (SC) 672, observations contained in paragraph12 are relevant, which we deem it proper to quote hereunder:

Speaking for a two-Judge Bench, Justice Murtaza Fazal Ali observed:

NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined Explaining the historical reason for the enactment of Section 397(2) CrPC, this Court observed in Amar Nath (supra) that the wide power of revision of the High Court is restricted as a matter of prudence and not as a matter of law, to an order that "suffered from any error of law or any legal infirmity causing injustice or prejudice to the accused or was manifestly foolish or perverse." In KK Patel v State of Gujarat,7 where a criminal revision was filed against an order taking cognizance and issuing process, this Court followed the view as expressed in Amar Nath (supra), and observed:

16. From the aforesaid situation, we are of the clear opinion that so long as the relief of seeking return of the child is not finally decided by virtue of impugned order, same cannot be said to be an interim order, but is merely an interlocutory order since said impugned order is neither finally deciding the right of the applicant about custody nor terminating the Page 19 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined main application. Since that be the situation, it is not possible for us to construe the impugned order as not an interlocutory order."

8.4 We may note that this decision would operate against the appellant of First Appeal No. 4464 of 2023. However, it also makes us to take a view that prima facie, the present appeal i.e. First Appeal No. 1283 of 2023 would be maintainable in light of what the Division Bench has said and what the Bombay High Court has said and we have quoted in our own words.

8.5 Coming now to the question of jurisdiction, the word "ordinarily resides" is set out in section 9 of the Guardians & Wards Act. Sec.9(1) of the Act, and the same 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. If the application is with respect of 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 Page 20 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined Court having jurisdiction in the place where he has property.

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 on conveniently by any other District Court having jurisdiction." 8.6 With great respect to the learned Judge of the Family Court, it was Sec.9 that should have been considered by him and not section 4(5)(ii) of the Act merely because the section was cited by the parties or their advocates discounting their ignorance. The term "Ordinarily resides", has been interpreted by the Division Bench of the Kerala High Court in the case of Salini (supra). The Kerala High Court has considered the decisions of the Hon'ble Supreme Court and set out the principles emanating therefrom in para 19 of the judgement. Para 19 thereof, reads as under:

Living apart can also be on reasons of one among the spouses being employed abroad or elsewhere in the country. In case of the spouses living apart, or are no more, the person with whom the child shares his residence for a considerably long period should be given preference by the court while dealing with custody applications.

(4) In case the parties have a permanent residence or a regular home and the child out of circumstances of compulsion of his education or parents' employment is constrained to stay at different places, the court should see, the place where the permanent residence is built by the parties intending thereby to stay together lifelong would be of relevance while the jurisdictional issue is in seizin of a Court." 8.7 Sub-para, paragraphs 3 and 4 of para 19, when read would indicate that custody applications would normally come in circumstances of strained relationship of parents and the consequent living of either of them separately. In cases of retention of the child by in-laws or other relatives Page 22 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined after the death of either of the spouse is one such circumstance. The facts of this case are a circumstance which indicate that here is a case where the retention of the child by in-laws after the death of the mother is a question. Albeit, the retention of the child with the in- laws according to the applicant of the custody application is by force by the appellants. Whereas, the case of the appellants in this appeal is that since the permanent residence is that of Pune, the Navsari Court had no jurisdiction. That is what is also considered by the Kerala High Court in sub- para 4 of para 19. A decision of the learned Single Judge of this Court in the case of Kiritbhai Meghjibhai Rathod (supra), does say that there cannot be a presumption that the place where the minor resides would mean the residence of his natural guardian i.e. in the facts of this case Navsari and so also a decision in the case of Dilip Behera (supra), where the term "ordinarily resides" should not be construed as "would have resided or should have resided" as has been done in the facts of the present case by the learned Judge Page 23 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined of the Family Court while coming to the conclusion that since he was in the past residing at Navsari, the Navsari Court had jurisdiction.

8.8 All these decisions, have lost sight of the decision of the Hon'ble Supreme Court in the case of Ruchi Majoo (supra), where the question before the Hon'ble Supreme Court was whether the Delhi Court had jurisdiction to entertain an application for custody. The question of interpretation of the term "ordinarily resides" was therefore considered in its own factual background which is set out in para 5 to 11 of the Hon'ble Supreme Court, which reads as under:

7. The appellant further alleged that she had informed the respondent about a petition under Page 25 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined the Guardian and Wards Act being ready for presentation before the Guardian Court at Delhi, whereupon the respondent is alleged to have agreed to the appellant staying back in Delhi to explore career options and to the minor continuing to stay with her. The respondent eventually returned to America around 20th July, 2008, whereafter he is alleged to have started threatening the appellant that unless the later returned to America with the minor, he would have the child removed and put in the custody of the respondent's parents at Udaipur. Apprehending that the respondent may involve the appellant in some false litigation in America and asserting that she was fit to be given the custody of the minor being his mother and natural guardian, the appellant sought the intervention of this Court and her appointment as sole guardian of the minor.

8. Shortly after the presentation of the main petition, an application under Section 12 of the Guardian and Wards Act read with Section 151 of the Civil Procedure Code was filed by the appellant praying for an ex-parte interim order restraining the respondent and/or any one on his behalf from taking away and/or physically removing the minor from her custody and for an order granting interim custody of the minor to the appellant till further orders. The application set out the circumstances in brief that compelled the appellant to seek urgent interim directions from the court and referred to an e-mail received from the father of the minor by the Delhi Public School (International) at R.K. Puram, where the minor is studying, accusing the mother of abducting the minor child and asking the school authorities to refuse admission to him. The application also referred to an e-mail which the Principal of the school had in turn sent to the appellant and the order which the US Court had passed granting custody of minor child to the respondent. The appellant alleged that the US Court Page 26 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined had no jurisdiction in the matter and that the order passed by that Court was liable to be ignored. On the presentation of the above application the Guardian Court passed an ex-parte interim order on 16th September, 2008 directing that the respondent shall not interfere with the appellant's custody of the minor child till the next date of hearing.

9. The respondent entered appearance in the above proceedings and filed an application for dismissal of the petition on the ground that the court at Delhi had no jurisdiction to entertain the same. In the application the respondent denied all the allegations and averments suggesting habitual internet sex, womanizing, dowry demand and sexual or behavioural perversity alleged against him. The respondent also alleged that the family had planned a vacation-cum-family visit to India and booked return air tickets to be in America on 20th July, 2008. The respondent's version was that the appellant along with the respondent and their minor son, Kush had stayed with the parents of the appellant at Delhi till 5th July, 2008. Thereafter, they were supposed to visit Udaipur but since the appellant insisted that she would stay at Delhi and assured to send Kush after sometime to Udaipur, the respondent left for Udaipur where he received a legal notice on behalf of the appellant making false and imaginary allegations. On receipt of the notice the respondent returned to Delhi to sort out the matter. During the mediation the respondent was allegedly subjected to enormous cruelty, pressure and threat of proceedings under Section 498A IPC so as to obstruct his departure scheduled on 20th July, 2008. The respondent alleged that since any delay in his departure could cost him a comfortable job in United States, he felt coerced to put in writing a tentative arrangement on the ground of appellant trying "career option of Dental medicine at Delhi"

10. It was, according to the respondent, curious that instead of returning to USA to submit to the jurisdiction of competent court at the place where both the petitioner and respondent have a house to reside, jobs to work and social roots and where Kush also normally resided, has friends and school, the appellant wife had persisted to stay in India and approach and seek legal redress. It was further stated that the proceedings initiated by the appellant on or about 28th August, 2008, with allegations and averments that were ex-facie false and exaggerated, were not maintainable in view of the proceedings before the Court in America and the order passed therein. It was also alleged that in terms of the protective custody warrant order issued on 9th September, 2008, by the Superior Court of California, County of Ventura, the appellant had been directed to appear before the US Courts which the appellant was evading to obey and that despite having information about the proceedings in the US Court she had obtained an ex-parte order without informing the respondent in advance. Page 28 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024

NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined

11. The respondent also enumerated the circumstances which according to him demonstrated that he is more suitable to get the custody of Master Kush in comparison to the appellant-mother of the child. The respondent husband accordingly prayed for dismissal of the petition filed by the appellant- wife and vacation of the ad-interim order dated 4th April, 2009 passed by the Guardian Court at Delhi." 8.9 Para 19 in the case of Ruchi Majoo (supra) also refers to the judgement in the case of Kuldip Nayar & Ors Vs. Union of India & Ors. , reported in 2006 (7) SCC 1, where the expression of the word "ordinarily" is primarily directed not to the duration but to the purpose. Interpreting Sec.9 and its term "ordinary" "preceding the word residence" the Supreme Court in paras 13 and 14 held as under:

9 identifies the court competent to pass an order for the custody of the persons of the minor, sub-sections (2) & (3) thereof deal with courts that can be approached for guardianship of the property owned by the minor. Section 9(1) alone is, therefore, relevant for our purpose. It says :

14. It is evident from a bare reading of the above that the solitary test for determining the jurisdiction of the court under Section 9 of the 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. The factual aspects relevant to the question of jurisdiction are not admitted in the instant case. There are serious disputes on those aspects to which we shall presently refer. We may before doing so examine the true purpose of the expression `ordinarily resident' appearing in Section 9(1) (supra) . This expression has been used in different contexts and statutes and has often come up for interpretation. Since liberal interpretation is the first and the foremost rule of interpretation it would be useful to understand the literal meaning of the two words that comprise the expression. The word `ordinary' has been defined by the Black's Law Dictionary as follows:

NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined 8.10 We note that the Hon'ble Supreme Court observed that from a bare reading of Sec.9 , the solitary test for determining the jurisdiction is the term "ordinary residence". However, the Hon'ble Supreme Court hastened to add that ordinarily residing at the given place is primarily a question of intention which inturn is a question of fact. It may be at best 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 any inquiry into the factual aspects of the controversy.

8.11 Perusal of the order impugned before us would indicate that this factual inquiry has not been undertaken by the Family Court. Even in the case of Shah Harichand (supra), though a Division Bench of this Court considered the question of the application in the facts where the ward was removed from the father's custody in this case, what needs to be noted is that the Division Bench observed that if there are two places Page 31 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined where it could be held that the minor was ordinarily residing the question would be one of convenience because the legislative test would be fulfilled. The question, however, cannot be decided on presumptive, legal or constructive custody but by an application of the statutory test of ordinary residence of the minor. This, according to the Division Bench would surely be a question of facts to be resolved in each case by taking into consideration all the relevant circumstances. Para 3 of the decision reads as under:

8.12 The question, therefore, that needs to be addressed by us is whether the Family Court in the facts of the case, though there was no dispute on the aspect of permanent address of the child being at Maharashtra, vis-a-vis the past residence of the child at Navsari, could have decided in favour of the father only on the ground of his past residence at Navsari before the death of the mother. We also note that the Trial Court would have, therefore, to reweigh its options in deciding the jurisdictional aspects of the application in accordance with the law set out by the Hon'ble Supreme Court in the case of Ruchi Mazoo (supra). The word of caution though without expressing any opinion on it, in light of the decision in the case of Salini (supra), the jurisdictional Court while taking a call on the jurisdictional issue also should bear in mind Page 33 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined that the welfare of the child is of paramount importance. 9 Considering all these issues, therefore, in First Appeal No. 1268 of 2023, the order dated 11.12.2022 passed by the Principal Judge, Navsari, in Application Exh.14 is quashed and set aside. The Family Court, Navsari, is directed to decide the issue of jurisdiction afresh in light of what we have stated hereinabove. He should keep in mind the provisions of Sec.9 and the term "ordinarily resides" as set out in various decisions which we have referred to. It may be noticed that the issue in the facts of the case would be a mixed question of fact and of law which will have to be considered by the Family Court.

We are told that the custody of the minor child Varad for the present is with the maternal grand-parents i.e. the appellants of First Appeal No. 1268 of 2023 and will continue to be with them till a decision in accordance with law is taken by the Family Court.

10 The appeal is allowed to the aforesaid extent. In Page 34 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024 NEUTRAL CITATION C/FA/1268/2023 JUDGMENT DATED: 15/10/2024 undefined light of this order that we have passed in the First Appeal No. 1268 of 2023 learned counsel Mr.Paneri would not press First Appeal No. 4464 of 2023 and the same is accordingly disposed of, as not pressed.

We may clarify that these observations in the order that we have made will not influence the Family Court henceforth in case an application for interim custody is made by either parties. It is clarified that before dwelling into any other issues, the Family Court shall decide the issue of jurisdiction. The application for jurisdiction under Exh.14 shall be decided by the Family Court as expeditiously as possible, preferably within six months from the date of receipt of the certified copy of this order.

In view of disposal of the main appeals, connected civil applications also stands disposed of, accordingly.

(BIREN VAISHNAV, J) (MAULIK J.SHELAT,J) BIMAL Page 35 of 35 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Fri Oct 18 2024 Downloaded on : Fri Oct 18 21:34:57 IST 2024