The Apex Court had the occasion to consider the true interpretation of the expression ‘Ordinarily resides’ in the case of Ruchi Majoo v Sanjeev Majoo (2011).
Section 9 of the Guardian and Wards Act, 1890 makes a specific provision as regards the jurisdiction of the Court to entertain a claim for grant of custody of a minor. While Sub-section (1) of Section 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) says :
“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.”
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 expression ‘ordinarily resident’ appearing in Section 9(1) (supra) has been used in different contexts and statutes and has often come up for interpretation before the Courts.
Literal Meaning of the Words
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:
“Ordinary (Adj.): Regular; usual; normal; common; often recurring; according to established order; settled; customary; reasonable; not characterized by peculiar or unusual circumstances; belonging to, exercised by, or characteristic of, the normal or average individual.”
The word ‘reside’ has been explained similarly as under:
“Reside: live, dwell, abide, sojourn, stay, remain, lodge. (Western-Knapp Engineering Co. V. Gillbank, C.C.A. Cal., 129 F2d 135, 136.)
To settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one’s residence or domicile; specifically, to be in residence, to have an abiding place, to be present as an element, to inhere as quality, to be vested as a right. (State ex rel. Bowden v. Jensen Mo., 359 S.W.2d 343, 349.)”
In Websters dictionary also the word ‘reside’ finds a similar meaning, which may be gainfully extracted:
“1. To dwell for a considerable time; to make one’s home; live.
2. To exist as an attribute or quality with in.
3. To be vested: with in”
In Mrs. Annie Besant v. Narayaniah AIR 1914 Privy Council 41 the infants had been residing in the district of Chingleput in the Madras Presidency. They were given in custody of Mrs. Annie Besant for the purpose of education and were getting their education in England at the University of Oxford. A case was, however, filed in the district Court of Chingleput for the custody where according to the plaintiff the minors had permanently resided. Repeating the plea that the Chingleput Court was competent to entertain the application their Lordships of the Privy Council observed :
“The district court in which the suit was instituted had no jurisdiction over the infants except such jurisdiction as was conferred by the Guardians and Wards Act 1890. By the ninth Section of that Act the jurisdiction of the court is confined to infants ordinarily residing in the district.
It is in their Lordship’s opinion impossible to hold that the infants who had months previously left India with a view to being educated in England and going to University had acquired their ordinary residence in the district of Chingleput.”
In Mst. Jagir Kaur and Anr. v. Jaswant Singh, AIR 1963 Supreme Court 1521, the Court was dealing with a case under Section 488 Criminal Procedure Code and the question of jurisdiction of the Court to entertain a petition for maintenance. The Court noticed a near unanimity of opinion as to what is meant by the use of the word “resides” appearing in the provision and held that “resides” implied something more than a flying visit to, or casual stay at a particular place. The legal position was summed up in the following words :
“…….Having regard to the object sought to be achieved, the meaning implicit in the words used, and the construction placed by decided cases there on, we would define the word “resides” thus: a person resides in a place if he through choice makes it his abode permanently or even temporarily; whether a person has chosen to make a particular place his abode depends upon the facts of each case…..”
In Kuldip Nayar & Ors. v. Union of India & Ors., 2006(7) SCC 1, the expression “ordinary residence” as used in the Representation of People Act, 1950 fell for interpretation. This Court observed :
“243. Lexicon refers to Cicutti v. Suffolk County Council (1980)3 All England Reporter 689 to denote that the word “ordinarily” is primarily directed not to duration but to purpose. In this sense the question is not so much where the person is to be found “ordinarily”, in the sense of usually or habitually and with some degree of continuity, but whether the quality of residence is “ordinary” and general, rather than merely for some special or limited purpose.
244. The words “ordinarily” and “resident” have been used together in other statutory provisions as well and as per Law Lexicon they have been construed as not to require that the person should be one who is always resident or carries on business in the particular place.
245. The expression coined by joining the two words has to be interpreted with reference to the point of time requisite for the purposes of the provision, in the case of Section 20 of the RP Act, 1950 it being the date on which a person seeks to be registered as an elector in a particular constituency.
246. Thus, residence is a concept that may also be transitory. Even when qualified by the word “ordinarily” the word “resident” would not result in a construction having the effect of a requirement of the person using a particular place for dwelling always or on permanent uninterrupted basis. Thus understood, even the requirement of a person being “ordinarily resident” at a particular place is incapable of ensuring nexus between him and the place in question.”
Reference may be made to Bhagyalakshmi and Anr. v. K.N. Narayana Rao, AIR 1983 Madras 9, Aparna Banerjee v. Tapan Banerjee, AIR 1986 Punjab and Haryana 113, Ram Sarup v. Chimman Lal and Ors., AIR 1952 Allahabad 79, Smt. Vimla Devi v. Smt. Maya Devi & Ors., AIR 1981 Rajasthan 211, and in re: Dr. Giovanni Marco Muzzu and etc. etc., AIR 1983 Bombay 242, in which the High Courts have dealt with the meaning and purport of the expressions like ‘ordinary resident’ and ‘ordinarily resides’ and taken the view that the question whether one is ordinarily residing at a given place depends so much on the intention to make that place ones ordinary abode.
Reference
Ruchi Majoo v Sanjeev Majoo (2011)