Jurisdiction To Decide Guardianship Of Hindu Child Below 5 Yrs Lies Where Child Actually Resides, Not Where Mother Resides: Punjab & Haryana HC

The Punjab and Haryana High Court has made it clear that application seeking guardianship of a minor, particularly one aged below 5 years of age, will lie to the district where the child actually and physically resides.

Bench of Justice Sureshwar Thakur and Justice Sudeepti Sharma said merely because as per Section 6(a) of the Hindu Minority and Guardianship Act, 1956 custody of a minor who has not completed five years of age will "ordinarily" be with the mother, it does not imply that the child is always living with the mother. It highlighted,

"...the language is “shall ordinarily be with the mother with the mother”. By using the words "shall ordinarily be with the mother", the intention of the legislature is to see the welfare of the child. The custody of the minor cannot be with the mother who is unchaste, insane, leading immoral life, insensitive, leading to estranged matrimonial relationship with her husband (the father of the child), sick, physically or mentally suffering from any disability, not conducive for ideal upbringing of the child.

Therefore, the intention of the legislature is that the proviso to Section 6(a) of the Hindu Minority and Guardianship Act, 1956 is not mandatory but depends upon the welfare of the child. If the intention of the legislature under Section 6 of the Hindu Minority and Guardianship Act, 1956 would have been that the natural guardian of Hindu minor who has not completed the age of 5 years shall be the mother then the provisions under Sections 12, 17 and 25 of the Guardian and Wards Act, 1890 would be redundant for the minor below the age of 5 years."

In the present case, the husband challenged the order passed by a Family Court dismissing his application for rejection of plaint filed by mother under Section 25 read with Section 12 of the Guardians and Wards Act, 1890 before the Family Court (Kaithal) seeking custody of their minor son (aged 3.5 year).

The Family Court held that the intention of Section 6(a) is that even though the minor below 5 years may not be in physical custody/residing with mother but still his/her custody would be deemed to be at the place where the mother is residing and the respondent-mother at the time of instituting proceedings before the Family Court, was deemed natural guardian of the minor child since the child was below 5 years of age, therefore, the natural custody would also be presumed to be with the mother, regardless of the place where the child was actually or physically residing at that time.

Counsel for the husband argued that as per Section 9 of the Act, the application with respect to guardianship of a minor shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. He further submitted that the minor son is residing with him at Panchkula.

Counsel appearing for the wife contended that it is settled law that whenever the age of child is less than 5 years and physical custody is not with the mother then the district in which mother resides shall have the jurisdiction with respect to the custody of the child.

After hearing the submissions, the Court referring to cases cited by the mother namely, Smt. Sarabjit Vs. Piara Lal and Another (2005), Amit Kashyap Vs. Pooja (2017) and Akashy Gupta Vs. Divya (2021) said,

"In all the above referred to judgments learned Single Bench of this Court decided the question of jurisdiction by interpreting the expression “minor ordinarily resides” as used in Section 9 of the Guardian and Wards Act, 1890 to mean, for the children below 5 years of age to be residence of the mother in view of Section 6(a) of the Hindu Minority and Guardianship Act, 1956. We find that all the above referred to decisions of learned Single Judge are per-incuriam and Section 9 of the Guardian and Wards Act 1890, has been wrongly interpreted."

The Court highlighted that, a perusal of the definition of 'Guardian' shows that the guardian is the person who is having the care of the person and/or property of a minor.

The bench elucidated, "By using the language “shall ordinarily be with the mother” the intention of the legislature is that since the child below 5 years is normally breast feeding child and requires love and affection from the mother and since mother gives birth to the child, the child is more comfortable in the lap of the mother, therefore the intention of the legislature is welfare and the comfort of the child. For that the language is “shall ordinarily be with the mother” and not “shall be with the mother”."

By using the words “shall ordinarily be with the mother”, the intention of the legislature is to see the welfare of the child. The custody of the minor cannot be with the mother who is unchaste, insane, leading immoral life, insensitive, leading to estranged matrimonial relationship with her husband (the father of the child), sick, physically or mentally suffering from any disability, not conducive for ideal upbringing of the child", it added.

The Court opined that, "therefore, the intention of the legislature is that the proviso to Section 6(a) of the Hindu Minority and Guardianship Act, 1956 is not mandatory but depends upon the welfare of the child."

Reliance was placed on Rosi Jacob Vs. Jacob A. Chakramakkal [1973] whereby Supreme Court while dealing with Section 25 of the Guardian and Wards Act held, "...the object and purpose of this provision being ex facie to ensure the welfare of the minor child, which necessarily involves due protection of the right of his guardian to properly look after the ward's health, maintenance and education, this section demands reasonably liberal interpretation so as to effectuate that object."

The Court also referred to Kuldip Nayar & Ors. v. Union of India & Ors., (2006) wherein the expression "ordinary residence" as used in the Representation of People Act, 1950 fell for interpretation before the Supreme Court. "...the question whether one is ordinarily residing at a given place depends so much on the intention to make that place ones ordinary abode,” the Apex Court observed.

The division bench opined that a conjoint reading of all the above referred to statutory provisions shows that the intention of the legislature in Section 9 with respect to the jurisdiction is that application for the guardianship of the person of the minor shall lie to the District Court having jurisdiction in the place where the "minor is actually and physically residing" and not as per the proviso to Section 6(a) of Hindu Minority and Guardians Act, 1956.

Consequently, the Court set aside the order of the Family Court and allowed the appeal.

Mr. Bharat Julka, Advocate for the appellant.

Mr. Samay Singh Sandhawalia, Advocate for the respondent

Citation: 2024 LiveLaw (PH) 231

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