Punjab-Haryana High Court
Shakuntala vs Rajesh on 25 February, 2009
Equivalent citations: AIR 2009 (NOC) 2108 (P&H)
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
FAO No.1572 of 2006 -1 -
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.1572 of 2006
Date of Decision: 25.2.2009
Shakuntala
..Appellant.
Vs.
Rajesh
..Respondent.
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
Present: Mr.M.R.Verma, Advocate for the appellant.
Mr.Sudhanshu Makkar, Advocate for the respondent.
RAKESH KUMAR JAIN, J.
This appeal has been filed by the wife being aggrieved against the order dated 17.3.2006 passed by Additional District Judge, Bhiwani whereby petition filed by the husband under Section 6 of the Guardian and Wards Act, 1890 (for short `the Act') for custody of a minor child Pooja has been allowed.
In the petition filed before the Court below, it is pleaded by the respondent-husband that marriage between the parties was solemnised on 31.5.1997. Out of this wedlock, a female child, namely, Pooja was born. Due to temperamental differences between them, they could not live together as husband and wife. Consequently, their marriage was dissolved by an order of mutual consent passed under Section 13-B of the Hindu Marriage Act, 1955 in Lok Adalat on 3.10.2001. It is also averred that respondent has remarried with one widower Mohan Lal, who already had FAO No.1572 of 2006 -2 - two children from the first marriage. Thus, the appellant has no love and affection for minor child Pooja. It is further alleged that his divorced wife has also been pregnant after her marriage with Mohan Lal, therefore, neither she nor her new husband has even thought of the welfare of Pooja. On these grounds, the respondent herein claimed custody of the minor.
On notice, the present appellant filed written statement and admitted that the marriage between the parties was solemnised as alleged and minor Pooja was born out of the wedlock. It was also admitted that their marriage has been dissolved by an order of mutual consent. It was, however, denied that orally it was settled that child shall remain with the father. It was also refuted that she has lost love and affection for Pooja even after her remarriage.
The learned Court below, after taking into consideration the evidence of both the parties, vide the impugned order dated 17.3.2006, allowed the petition. Hence this appeal.
Sh.M.R.Verma, learned counsel for the appellant has vehemently contended that petition filed before the Court at Bhiwani was not maintainable as the Court at Bhiwani has no jurisdiction in view of Section 9 of the Act. It is contended that the minor child, who is now of the age of about 9 years, is living with the mother since long at village Amarsingh Pura District Jhunjhunu at Rajasthan. In order to support his contention, learned counsel for the appellant has relied upon a decision of this Court reported in Smt.Anju Bala Vs. Vipin Oberoi 2004(1) PLR 468; Smt.Sunita Jain and others Vs. Mittar Sain Jain and another 2003 (1) PLR 641 and a decision of the Supreme Court in Pooja Badhadur Vs. FAO No.1572 of 2006 -3 - Uday Bahadur 1999(3) RCR (Civil) 219. Learned counsel for the appellant has next argued that since the minor is a girl child aged about 8-9 years and is at the advent of her puberty therefore, custody should be given to the mother instead of father. In this regard, counsel for the appellant has relied upon a decision of the Supreme Court in Kumar v. Jahgirdar Vs. Chethana Ramatheertha AIR 2004 SC 1525.
The next contention of the counsel for the appellant is that the respondent-husband has no means of earning to provide all the basic necessities of life to the minor as he has pleaded in his reply to the application, filed under Section 125 Cr.P.C. by the wife, for maintenance, that he has no means of livelihood. It is contended by the learned counsel for the appellant that respondent-husband has never paid the maintenance even of Rs.500/- per month as directed by the Court.
On the contrary, Sh.Sudhanshu Makkar, learned counsel for the respondent has argued that the Court at Bhiwani had jurisdiction to decide this petition. He relied upon a decision of this Court in the case of Ramesh Bhardwaj Vs. Ram Saran Dass 1998(2) RCR (Civil) 109. He also submitted that even though the minor is a girl and is at the advent of her puberty, she can very well be looked after by her grand mother with whom the father of the girl is presently living. He also contended that the respondent is a skilled labourer who had paid the maintenance of Rs.500/- per month till the decision of order of the District Judge.
I have heard counsel for the parties and have perused the record with their assistance.
The first contention of the counsel for the appellant is in FAO No.1572 of 2006 -4 - respect of the jurisdiction. Although, question of jurisdiction was not raised before the Court below but it can be taken at any stage. Section 9 of the Act provides as to which Court shall have the jurisdiction to entertain the application. Section 9 of the Act is reproduced as under:
"(1) 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. (2) If the application is with respect to the guardianship of the property of minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property.
(3) 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 or conveniently by any other District Court having jurisdiction."
Admittedly the minor is living since birth with her mother (appellant) who is residing at village Amarsingh Pura District Jhunjhunu at Rajasthan. Thus, in view of Section 9(1) of the Act, the petition should have filed before the District Court at Jhunjhunu in whose jurisdiction minor is ordinarily residing. In the case of Anju Bala Vs. Vipin Oberoi (supra) the child was living with the mother at Faridabad but the father filed a petition for custody of the minor at Jagadhari. This Court took a view that the Courts at Jagadhari shall have no jurisdiction to entertain the petition as the petition would be maintainable only with the Court where the minor was residing. Similarly the facts of the case of Smt.Sunita Jain and others Vs. Mittar FAO No.1572 of 2006 -5 - Sain Jain and another (supra) are that Sunita was married to one Sandeep Jain and were having two sons Sonnu and Monnu. Sandeep, however, died. After his death, his father Mittar Sain Jain filed a petition at Bhiwani seeking custody of his grand sons Sonnu and Monnu. In the said case, a question arose as to whether the Bhiwani Court has territorial jurisdiction under Section 9(1) of the Act specially when Smt.Sunita who has been remarried with Jainender Kumar Jain living at Rohtak and custody of the children was with her. In these circumstances, this Court held that it cannot be concluded that the minors were living at Bhiwani at the time of filing of petition. It was also observed that paramount consideration for deciding the territorial jurisdiction, namely, welfare of the children would also lean towards taking the view that instead of minors travelling from Rohtak to Bhiwani, the proceedings should have been initiated in the Courts at Rohtak. Further in the case of Pooja Badhadur Vs. Uday Bahadur (supra), the Apex Court found that the minors were residing with the father at Delhi, therefore, the petition filed by the mother for the custody at Chandigarh was not in accordance with Section 9 of the Act.
Insofar as the judgment relied upon by the respondent in the case of Ramesh Bhardwaj Vs. Ram Saran Dass (supra), is concerned, it was held that place of ordinary residence of the minor, would be the place where the minor have continued to reside but for the recent removal of the minor to a different place. In the present case, the minor is ordinarily residing with the mother at village Amarsingh Pura, District Jhunjhunu at Rajasthan since long and it is not the case of the parties that the minor has been recently removed from the custody of the father. Therefore, the ratio of FAO No.1572 of 2006 -6 - law laid down in the case of Ramesh Bhardwaj Vs. Ram Saran Dass (supra) is not applicable to the facts of the present case rather, the present case is fully covered by the decision rendered in the aforesaid cases relied upon by the counsel for the appellant.
Therefore, in my considered view, the petition filed by the respondent-husband before the District Judge, Bhiwani seeking custody of the child is bad for want of territorial jurisdiction in view of mandatory provisions of Section 9(1) of the Act and as such the impugned order cannot be sustained.
Secondly, there is no doubt that welfare of the minor is of the paramount consideration for the Court while deciding the question of his/her custody. In the present case, admittedly, minor Pooja is of the age of 8-9 years and is at the advent of her puberty, therefore, law laid down by the Apex Court in the case of Kumar v. Jahgirdar Vs. Chethana Ramatheertha AIR 2004 SC 1525 is directly applicable that remarriage of mother of a minor is not a disqualification where the girl child is at the advent of her puberty. The best guardian considered by the Court in this regard is the mother. It has been held by the Apex Court that if the child is 9 years of age and is at the advent of her puberty then at that stage she requires more care and attention of the mother.
Further, it has also come in evidence that respondent has not paid any maintenance even of Rs.500/- for which execution under Section 125 Cr.P.C. was filed by the appellant. In my view, the welfare of child is not at all with the father rather it is with the mother, who has been remarried and is well settled after divorce with a widower having one child from the FAO No.1572 of 2006 -7 - first wife and one child from the mother of the minor. Taking all the facts on merits in totality coupled with the fact that the Court at Bhiwani had no jurisdiction in view of Section 9(1) of the Act, the present appeal is allowed and the impugned order dated 17.3.2006 is set aside. No costs.
(Rakesh Kumar Jain) 25.2.2009 Judge Meenu