Punjab-Haryana High Court
Smt. Sarabjit Wd/O Sh. Mukesh Kumar vs Sh. Piara Lal And Anr. on 1 April, 2005
Equivalent citations: AIR2005P&H237, AIR 2005 PUNJAB AND HARYANA 237, (2005) 4 CURCC 378, (2005) 4 ICC 739, (2005) 2 HINDULR 470, (2005) 3 CIVILCOURTC 179, (2005) 35 ALLINDCAS 236 (P&H), (2006) MATLR 152, (2005) 3 RECCIVR 213, (2005) 1 MARRILJ 497
ORDER M.M. Kumar, J.
1. The sole question which requires determination in the present case is whether the Civil Court at Hoshiarpur has territorial jurisdiction to adjudicate the petition filed by the petitioner who is a widow, Under Sections 7 and 25 of the Guardians and Wards Act, 1890 (for short 1890 Act) read with Section 6 of the Minority and Guardianship Act, 1956 (for short 1956 Act). Learned Civil Judge (Sr. Divn.), Hoshiarpur has sustained a preliminary objection raised by the respondents who are the grand parents of the minor child and it has been held by placing reliance on Section 9 of the 1890 Act that since the Child is residing at Ambala and the petitioner, who is the natural mother is residing at Hoshiarpur, the Courts at Ambala alone would have the jurisdiction.
2. Brief facts of the case which are necessary for disposal of the controversy raised in this petition are that the petitioner Smt. Sarbjit got married to the son of respondents Shri Mukesh Kumar on 17-10-1999 according to Hindu rites at Hoshiarpur. Both of them lived together at Ambala where the respondents who are grand parents of the minor child have been residing. One male child Gautam was born out of the wedlock on 11-9-2000 at Hoshiarpur. The petitioner has placed on record a copy of birth certificate showing that the minor child was born at Hoshiarpur (P-2). There are allegations of demands of dowry by the respondents and its tolerance of unfair behaviour by the petitioner. It is asserted that Mukesh Kumar, husband of the petitioner died on 2-10-2001 under some mysterious circumstances. After his death, the petitioner has been allegedly turned out of the matrimonial home on 1-2-2002. It is alleged that she was denied even the custody of the minor child Gautam who had been forcibly and illegally snatched by the respondents. Despite intervention of respectables to keep the petitioner in the matrimonial home or give her back the minor son Gautam but all in vain. When nothing materialised them, a petition Under Sections 7 and 25 of the 1890 Act read with Section 6 of the 1956 Act for taking custody of the minor Gautam was filed by the wife-petitioner in the Court of Guardian Judge at Hoshiarpur in March 2002. The petitioner had also initiated proceedings earlier Under Sections 406/498-A IPC which are pending in the Court at Hoshiarpur. The Guardian Judge, on the basis of objection- raised in the reply filed by the respondents, has recorded a conclusion that such a petition could be filed within the jurisdiction of District Courts where the minor ordinarily re-sides' as has been provided by Section 9 of the 1890 Act. The operative portion of the impugned order is extracted below for the facility of reference :---
4. It is admitted case of the parties that the minor child was born at Ambala and after the death of Mukesh Kumar, husband of the petitioner, the petitioner started residing at Hoshiarpur whereas the child is residing with his grand parents at Ambala. The allegations of the petitioner is that the child was forcibly kept by the respondent at Ambala and she was shunted out from her matrimonial home. But these allegations have been denied by the respondent at the time of arguing the case of jurisdiction point. Section 9 of the Guardians and Wards Act provides that 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.
7. In the present case, it is admitted case of the parties that the minor child is residing at Ambala since his birth and his mother is residing at Hoshiarpur and as per the law laid down by Hori'ble Supreme Court in 1999(3) RCR (C) 219 the Court at Hoshiarpur has no jurisdiction. Therefore, the present petition is ordered to be returned to the petitioner for presentation of the same in the competent Court.
3. During the pendency of the instant petition, an application C. M. No. 3233-CII of 2005 has also been filed for grant of interim custody of the child, asserting that the custody petition filed by the petitioner was returned to her by the Guardian Judge, Hoshiarpur after keeping it pending for over about 2 years. There are further allegations that the respondent-grand parents are not even permitting the petitioner to meet the child. Reply to the aforementioned application has also been filed, wherein the allegations with regard to depriving the petitioner the opportunity to meet the child have been controverted. In para 3, details have been given, as to how the respondent-grand parents have permitted the petitioner to meet the child.
4. Mr. Sandeep Bansal, learned counsel for the petitioner has argued that respondent-grand parents of Gautam cannot look after the interest of the child especially when it is remembered that child is less than five years of age and that the mother is the natural guardian. It would not be proper to deprive the child the natural love and affection of the mother. In support of his submissions, learned counsel has placed reliance on a Division Bench Judgment of Rajasthan High Court in the case of Smt. Chandra Kanta v. Superintendent of Police (Rajasthan), 2000 (4) Rec. Civ. (Civil) 652 : (2000 Cri LJ 3138), and a judgment of this : Court in Balbir Kaur v. Jit Kaur (P&H) . According to learned counsel, the paramount consideration of the welfare of the child would be amply met if the custody of the child is given to the mother.
5. Assailing the impugned order passed by learned Guardian Judge, Mr. Bansal has argued that the expression 'ordinarily re-sides' used in Section 9 of the 1890 Act would not mean where the child is actually residing, but it would mean where it ordinarily supposed to be residing. In support of his submissions, learned counsel has placed reliance on a judgment of Karnataka High Court in case of K.C. Sashidhar v. Roopa and argued that the mother is legal guardian of a minor of tender age and, therefore, the place of residence of mother would be considered to be the same place for the minor. It has further been urged that for deciding the question of territorial jurisdiction, the convenience of the parties is also required to be taken into consideration and support has been sought from the judgment of Patna High Court in Kamleshwari Ram v. Smt. Kaushalya Devi : 1999 (1) Rec Civ R (Civil) 209.
6. Mr. Bansal has further submitted that a calculated attempt is being made to ensure that the child born on 11-9-2000 attains the age of 5 years, and they are out of the ambit of Section 6 of the 1956 Act which provides that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. Learned counsel has further argued that the question of territorial jurisdiction would lose significance if considerable period has passed after entertaining the petition. In support of his submissions, learned counsel has placed reliance on a judgment of Supreme Court in Dinesh Chandra Gahotri v. Chief of Army Staff .
7. Mr. Balbir Singh, learned counsel for the respondent-grand parents has argued that Under Section 9 of the 1890 Act, there is a specific bar created for initiation of proceedings for custody of a minor and such proceedings can be initiated in the District Court having jurisdiction in the place where the minor ordinarily resides. According to the learned counsel after death of Shri Mukesh on 7-10-2001, the minor child was living at Ambala with his grand parents and, therefore, it cannot be claimed that the minor child would be deemed to be living where his mother lives i.e. Hoshiarpur. In support of this submission, learned counsel has placed reliance on a judgment of this Court in the case of Ramesh Bhardwaj v. Ram Saran Dass (P&H) 1998 (2) Rec Civ. (Civil) 109 : (1999 AIHC 1045) and a judgment of the Supreme Court in Pooja Bahadur v. Uday Bahadur .
8. After hearing learned counsel for the parties and bestowing my thoughtful consideration, I am of the considered opinion that this petition deserves to be allowed for various reasons. It would be appropriate to make a reference to Section 9 of the 1890 Act which reads as under :--
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. .
(2) If the application is with respect to the guardianship of the property of the 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 having jurisdiction.
9. It would also be pertinent to make a reference to Section 6 of the 1956 Act which reads as under :--
6. Natural Guardians of Hindu minor-- The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are--
(a) In the case of a boy or unmarried girl-- the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother:
(b) In the case of an illegitimate boy or an illegitimate unmarried girl -- the mother, and after her, the father;
(c) In the case of a married girl -- the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section--
(a) If he has ceased to be a Hindu, or
(b) If he has completely and finally renounced the world by becoming a hermit (Vanaprastha) or an ascetic (yati or sanyasi).
Explanation :-- In this section, the ex-. pressions 'father' and 'mother' do not include a step-father and a step-mother,
10. A perusal of Section 9 of the 1890 Act makes it abundantly clear that the application for guardianship of a person of the minor has to be made to the District Court having jurisdiction of the place where the minor 'ordinarily resides'. According to the provisions of Section 2 and Section 5 of the 1956 Act, the 1890 Act is in addition, and not in derogation thereof. In other words, 1890 Act would continue to apply unless there is something contrary provided by 1956 Act. Section 5(A) in unmistakable terms has provided that the mother as against the father is entitled to the custody of a child upto the age of 5 years which is a mandatory provision. Thereafter, the parties namely mother and lather may apply for the custody which would be decided by the Court by keeping in view the paramount consideration of welfare of the child. A statutory recognition has been given to the principle of paramount consideration by Section 13 of the 1956 Act.
11. The question then arise whether the expression 'minor ordinarily resides' used in Section 9 could be construed to mean that the minor would cease to reside with his mother. Once Under Section 6(1), it is mandatory that a child below the age of 5 years has to reside ordinarily with the mother then the expression 'where the minor ordinarily resides' has to be interpreted to mean the residence of the mother. In other words the residence of the mother would follow the residence of the son. This proposition is supported by the view taken by the Karnataka High Court in the case of K. C. Sashidhar (supra). I am further of the view that the learned Guardian Judge has lost sight of the fact that a period of 2 years had already expired since the filing of application by the petitioner. It is appropriate to mention that the application was filed on 17-3-2002 and she was non-suited by sustaining the objection of lack of territorial jurisdiction. After such a delay ordinarily the petition should not be returned by sustaining the objection of territorial jurisdiction.
12. It is trite to observe that the paramount consideration of the child have to be kept in view in deciding these matters. The tender age of the child below 5 years would necessarily require the natural love and affection which the child is likely to get in the lap of his mother, rather than that of grandmother and grand-father who are respondents in this case. The custody of such a child with the mother would facilitate his proper growth and development. For the aforementioned view, reliance could be placed on Section 13 of the 1956 Act and the judgment of Supreme Court in the cases of Rajiv Bhatia v. Govt. of NCT Delhi and Sayeed Saleemuddin v. Rukhsana
13. There is another aspect of the matter which requires to be noticed. It would be highly inconvenient for her to prosecute proceedings for the custody of her minor son Gautam at Ambala. It is well-settled that the convenience of hapless woman like the petitioner is always kept in view. It is the duty and function of the Court as has been observed by the Supreme Court in Surinder Kaur Sandhu v. Harbax Singh Sandhu, to protect the wife against the burden of litigation in a convenient form. Moreover, the proceedings initiated by the petitioner against the respondent grand parents Under Sections 498-A and 406 are also pending in the courts at Hoshiarpur which the respondent-grand parents have to attend.
14. For the reasons stated above this petition succeeds. The impugned order dated 17-1-2004 is set aside. The Guardian Judge, Hoshiarpur is directed to decide the petition filed by the petitioner-mother expeditiously. Keeping in view the principles enunciated by Section 6(1) of 1956 Act, the interim custody of the minor child Gautam who is admittedly below five years of age is granted to mother. Let the child be handed over to the petitioner-wife within a period of one week from today. The petitioner-mother shall also be entitled to costs which are quantified as Rs. 10,000/-