The Punjab and Haryana High Court held while hearing the case of parents litigating over the custody of their 6 year old minor daughter that even if a minor, who is under five years of age may not be residing with mother, but child custody would be deemed to be at the place where the mother is residing and the matter could be heard there.
Case Background
The couple got separated from each other in October, 2017 and at the time of separation, the minor daughter was in the physical custody of mother. On 19th January 2018, she was taken by her father/ petitioner and his family in a deceitful manner from her, stating that the grand parents wanted to be with their granddaughter for few days.
The mother further alleged that the custody of minor daughter was never handed back to her thereafter. Several meetings and Panchayats were convened but the custody was not restored.
Allegation of the petitioner/husband was that the respondent-wife had willfully abandoned her matrimonial home and even the custody of minor child had been willfully handed over to the petitioner/father.
Also Read: [Child Custody] Habeas Corpus Petition Maintainable in Matters of Custody of Child: MP High Court
The proceedings under Sections 10 and 25 of the Guardian and Wards Act were initiated before the Family Court, Panipat. But the court declined daughter’s custody to the respondent-wife.
An appeal was filed before the Division Bench of P&H HC by the Wife/Mother.
The DB appeal was disposed of on 13th December 2019 with a direction to the Family Court at Panipat to conclude the proceedings expeditiously, preferably within a period of 5 months
Tt was argued that since the child was in physical custody of father/petitioner at Jagadhari/Yamunanagar, and so in order to avoid unnecessary travelling of the minor child to appear before the Family Court at Panipat, proceedings ought to have been instituted before the Family Court at Jagadhri where minor child is currently residing with her father.
So, the Court was dealing with the controversy as to whether the Family Court at Panipat (where the mother is residing) had the territorial jurisdiction to entertain the petition instituted by the mother/ respondent to seek the custody of her daughter?
Court’s Observations and Order
In the present case, the Court noted,
“The Petitioner (Father), having once acquiesced to the jurisdiction by not raising the issue of territorial jurisdiction before the Division Bench or not seeking leave to pursue the same or even otherwise also not pointing out that he would be pressing for the same through the instant proceedings, the said issue cannot be raised at this belated stage, as the same would defeat the very purpose of directions issued by Division Bench of this Court.”
The court obse3rved that Section 6 of Hindu Minorities and Guardians Act, 1956 observed that the custody of child below five years would ordinarily lie with mother.
The Court also noted,
“At the time of separation, the custody was with the mother and she was indeed admitted in School at Panipat where she was residing after separation and her age at the time of institution of petition by the wife was 03 years and 07 months.”
In the aforesaid premise, the Court interpreted section 6 (a) Hindu Minorities and Guardians Act, 1956 to mean and intend that even though a minor below five years may not be in physical custody/residing with mother, but her/ his custody would be deemed to be at a place where the mother is residing.
The Court specifically said that at the time of instituting proceedings before the family court, the mother was the deemed natural guardian of the minor child and therefore, the natural custody would also be presumed to be with mother, regardless of the place where the child was actually residing physically at the that time.
“Her mother/ respondent-wife was, therefore, well within her right to invoke territorial jurisdiction of Family Court at Panipat“, said the Court.
The Court also observed that the relevant consideration and cut-off date for consideration as to whether Family Court, Panipat had territorial jurisdiction, was the date on which the petition was filed, when admittedly minor daughter was less than 5 years of age.
