Punjab & Haryana Hc observed that custody of minor below 5 years will be with mother even if he/she isn’t residing with mother

HCBA Boycotts Chief Justice’s Court until physical hearings resume

CASE: Akshay Gupta v. Divya & Ors.

CORAM: Hon’ble Justice Arun Monga

Last week, the Punjab and Haryana High Court made it clear in a significant ruling that even if a minor who is under five years of age does not reside with a mother, his/her custody will be considered to be at the location where the mother resides and the matter could be heard there.

Justice Arun Monga was hearing the case of parents over the custody of their minor daughter “Kyna” she is currently 6 years old.

Background of the case 

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

On 19 January 2018, she was allegedly deceitfully taken from her by her father/ petitioner and his relatives, alleging that the grandparents wanted to be with their granddaughter for a few days. Furthermore, the mother alleged that the custody of a minor daughter had never been returned to her afterward. Several meetings and panchayats were held, but there was no restoration of custody.

But at the other hand, the petitioner/ husband’s alleged that the respondent-wife voluntarily left her marital home and even the custody of the minor child was willfully handed over to the petitioner/father.

Before the Family Court, Panipat, the proceedings under Sections 10 and 25 of the Guardian and Wards Act were started. The Family Court, Panipat vide an interim order, denied the custody of the daughter to the respondent-wife, resulting in the Wife/Mother filing an appeal before the Division Bench of P&H HC.

On 13 December 2019, the Division Bench appeal was disposed of with a direction to the Family Court at Panipat to expeditiously conclude the proceedings, preferably within a period of 5 months. However, when the Panipat Court held the case for recording the evidence for its expeditious disposal, the Father of the Minor took a plea that the Family Court had only the territorial jurisdiction to deal with the case where a minor child ‘ordinarily’ resides.

In this case, it was contended that since the child was in physical custody of father/petitioner at Jagadhari/Yamunanagar, in order to prevent the minor child from unnecessarily travelling to appear before the Family Court in Panipat, proceedings ought to have been brought before the Family Court in Jagadhri, where the minor child currently resides with her father.

Thus, the Court dealt with the conflict as to whether the Panipat Family Court (where the mother resides) had the territorial jurisdiction to entertain the petition filed by the mother/respondent to claim custody of her daughter?

Observations of the Court

The Court observed, 

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.”

In addition, when reviewing Section 6 of the Hindu Minorities and Guardians Act of 1956, the Court noted that the custody of children under five years of age would usually lie with their mother.

The Court also observed,

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 above premise, the Court interpreted section 6 (a) Hindu Minorities and Guardians Act, 1956 meaning and intending 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 resides.

The Court particularly 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 the mother, irrespective of the place where the child was actually residing physically at that time.

The Court also noted 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”, observed the Court.

Priyanshi Budholia
I am Priyanshi Budholia, a student of B.A.LL.B (Hons.) from Dharmashastra National Law University, Jabalpur. I always like to express my concern in research & writing skills as it enhances my skills for future endeavors in the legal field. I prefer to live in a dynamic environment where people help others to develop their skills.