Deemed Custody Of Minor Below 5 Yrs Would Be With Mother Even Though He/She Isn't Residing With Mother: Punjab & Haryana High Court

The Bench of Justice Arun Monga was hearing the case of parents litigating over the custody of their minor daughter "Kyna", currently aged 6 years.

Background of the matter

The Husband & Wife got separated from each other in October, 2017 and at the time of separation, the minor daughter was in the physical custody of mother.

Allegedly, on 19^th 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.

On the other hand, 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.

Controversy before the Court

The proceedings under Sections 10 and 25 of the Guardian and Wards Act were initiated before the Family Court, Panipat

The Family Court, Panipat vide an interim order, declined daughter's custody to the respondent-wife, leading to the filing of an appeal before the Division Bench of P&H HC by the Wife/Mother.

The DB appeal was disposed of on 13^th December 2019 with a direction to the Family Court at Panipat to conclude the proceedings expeditiously, preferably within a period of 5 months

However, when the Panipat Court kept the matter for recording the evidence for its expeditious disposal, the Father of the minor took a plea that the Family Court, where a minor child 'ordinarily' resides only had the territorial jurisdiction to deal with the Case.

In this case, it 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

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."

Further, the Court, while perusing 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.

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.

"Her mother/ respondent-wife was, therefore, well within her right to invoke territorial jurisdiction of Family Court at Panipat", said the Court.

Case title - Akshay Gupta v. Divya & Ors. [CR-641 of 2019 (O&M)]

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