IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.7393 of 2010(O&M) Date of decision: 3.1.2011 Sanjay and others …..Appellants versus Shalu ……Respondent CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Augustine George Masih Present: Mr.Rakesh Nehra, Advocate for the appellants Jasbir Singh, J. (Oral) CM No.32533-CII of 2010 In view of reasons mentioned in this application, it is allowed and 8 days delay in filing the appeal stands condoned. FAO No.7393 of 2010 This appeal has been filed against an order dated 10.11.2010, rejecting prayer of the appellants for dismissal of pending application, for want of jurisdiction. It is apparent from the records that the respondent –wife filed an application in the year 2006, seeking custody of her minor son, which is now pending before the District Judge, Family Court at Hisar. After service, appellants put in appearance and filed reply to that application, but they did not raised any objection regarding jurisdiction of the Court to hear that matter. The proceedings continued for about more than four years. FAO No.7393 of 2010(O&M) When the matter was virtually matured for arguments, an application to dismiss the original application was filed by stating that the District Judge, Family Court at Hisar has no jurisdiction to hear the case. That application was rejected by the Court below by observing as under:- “From the perusal of the para no.3 of the petition, it is observed that the petitioner was turned out from the matrimonial home on 9.10.2006 and the minor namely Anmol who was 1/1-4 years old was kept by the respondents. It is also to be noted here that in the authority cited by learned counsel for the petitioner tilted Eugenia Archetti Abdullah vs. State of Kerela 2005(1) RCR (Civil) 259 (Kerela High Court) it is clearly observed that the lap of the mother is the nature cradle where the safety and welfare of children can be assured and there is no substitute for the same. In this authority, it has also been held that if the children of tender age of less than three years are kept out of their motherland to the exclusion of their mother, even if it is by their father, it can only be treated as an illegal detention. In the given circumstances, the residence of the minor should have been treated the residence of his mother because the minor was of very tender age of 1/1- 4 year on 9.10.2006. It is to be noted here that both the parties have almost concluded their evidence and the case was fixed for documentary evidence of the respondent only and at that time the present application was moved. It is also to be noted that the present petition pertains to the year 2006 and is very old. It is also to be noted here that the petitioner who is mother of the minor Anmol can only prosecute the present 2 FAO No.7393 of 2010(O&M) petition in the present court and she could not prosecute the same by visiting at Rohtak courts.” We feel that the order passed is perfectly justified. If the appellants have any grievance regarding jurisdiction of the Court, objection should have been raised at an earlier point of time. Appellants allowed the matter to continue for more than four years. Evidence is virtually complete. At this stage, possibly, it is not justifiable to dismiss the original application on a technical ground. Accordingly, the appeal stands dismissed. (Jasbir Singh) Judge 3.1.2011 (Augustine George Masih) gk Judge 3