Natural Custody of a minor child below 5 years lies with the mother even if the child is not residing with the mother: Punjab and Haryana High Court

 on 21 01 1 203 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR 6419Date of Decision: 11.01.2021. Akshay Gupta ...Petitioner V S Divya & Ors. ....Respondents CORAM: HON’BLE MR JUSTICE ARUN MONGA Present : Mr. Akshay Jindal Advocate for the petitioner. Mr. Aman Bansal Advocate for the respondents. 1. Before this Court are parents of their minor daughter “Kyna” currently aged 6 years litigating over her custody having separated from each other sometime in October 2017. 2. The marriage between parties took place on 19.11.2013. Out of wedlock they were blessed with a daughter on 08.12.2014. Unfortunately their marriage fell on the rocks and under acrimonious circumstances the respondent wife moved to her parental house. Though it is alleged by her that she was thrown out of her matrimonial home during the night of 19.10.2017. The case of respondent wife is that the minor daughter at the time of separation was in her physical custody. Minor was later admitted in Shemrock School Panipat on 01.11.2017. Mother alleges that on 19.01.2018 daughter Kyna was taken by her father petitioner and his family in a deceitful manner from the answering respondent stating that the grand parents wanted to be with their granddaughter for few days. Instead the custody of minor daughter was never on 21 01 2 handed back to the mother thereafter. Several meetings and Panchayats were convened but the custody was not restored. On the other hand allegation of the petitioner husband is that the respondent wife has willfully abandoned her matrimonial home and even the custody of minor child has been willfully handed over to the petitioner father. 3. Be that as it may aforesaid allegations counter allegations are not very relevant for the purpose of adjudication qua the issue raised in instant proceedings. The short controversy herein is whether the Family Court at Panipat has the territorial jurisdiction to entertain the petition instituted by the mother respondent to seek the custody of her daughter. 4. Instant revision petition is second foray of lis in this Court arising out of proceedings pending before the Family Court Panipat under Sections 10 and 25 of the Guardian and Wards Act(for brevity the Act). The earlier round arose out of an order passed by the Family Court vide which interim custody was declined to the respondent wife leading to the filing of an appeal before the Division Bench of this Court bearing FAO No. 57219. 5. The DB appeal was disposed of on 13.12.2019 with a direction to the Family Court at Panipat to conclude the proceedings expeditiously preferably within a period of 5 months. It would be apposite to reproduce the relevant extract of the order dated 13.12.2019 passed by the Division Bench as below: “As the matter is still pending before the court below this court does not find any reason to entertain the present appeal. Same is hereby dismissed. However at this stage learned counsel for the appellant has prayed that a direction be issued to the court below to decide the matter expeditiously and the observations made in the order be not taken into consideration. We hereby direct that the Family Court Panipat shall make endeavor to conclude the proceedings expeditiously preferably within a period of five months. It shall not be swayed by the observations made in the on 21 01 3 interlocutory orderwhich is under challenge in this appeal.” 6. Pursuant to aforesaid direction of the Division Bench the Family Court took up the matter and has now kept the same for recording the evidence for its expeditious disposal. It is at this stage that the petitioner husband instead of joining the proceedings for evidence before the Family Court is now instead resisting the same on the ground that the Court at Panipat does not have the territorial jurisdiction. 7. The primary plea taken is that admittedly custody of the minor child is with father petitioner and relying on Section 9 of the Act it is contended that only Family Court where a minor child ‘ordinarily’ resides shall have the territorial jurisdiction. In this case the child is since in physical custody of father petitioner at Jagadhari Yamunanagar. 8. In the premise learned counsel for the petitioner relying on the judgments in Shakuntala Vs. Rajesh1 Smt. Aparna Banerjee Vs. Tapan Banerjee2 Smt. Sunita Jain & Ors. Vs. Mittar Sain Jain & Anr.3 Tejbir Singh Vs. Baljit Kaur4 Pooja Bahadur Vs. Uday Bahadur5 and Rosy Jacob Vs. Jacob A. Chakramakkal6 submits that it is the convenience and welfare of the minor child which is of paramount importance to determine the issue of territorial jurisdiction and not the convenience of the mother respondent. He contends that in order to avoid unnecessary travelling of the minor child to appear before the Family Court at Panipat proceedings ought to have been 12010(5) RCR(Civil) 261 21986 AIR(Punjab) 113 32003(1) RCR(Civil) 440 4CR No. 72518 decided on 02.11.2018 51999(3) RCR(Civil) 219 61973 AIR(SC) 2090 on 21 01 4 instituted before the Family Court at Jagadhri where minor child is currently residing with her father. 9. Per contra learned counsel for respondent wife submits that it is too late at this stage to raise the issue of territorial jurisdiction. 10. Learned counsel for the respondents submits that when the Division Bench disposed of the aforesaid appeal at that stage it was neither argued nor pointed out by the petitioner before the Division Bench that Family Court at Panipat cannot conclude the proceedings within a period of 5 months since the issue of jurisdiction of Family Court at Panipat was also still pending before this court by way of the instant petition. 11. Having heard learned counsel for both the parties I am of the view that there is merit in the arguments addressed by learned counsel for respondent wife. Petitioner 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 ibid. 12. Apart there from a perusal of Section 6 of Hindu Minorities and Guardians Act 1956 would reveal that the custody of child below five years would ordinarily lie with mother. It is not in dispute that 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. For ready reference Section 6of the Act ibid is reproduced as under : 6. Natural guardians of a Hindu minor.—The natural guardian of a Hindu minor in respect of the minor’s person as well as in respect of the minor’s propertyare— on 21 01 5 in the case of a boy or an 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 xxx….” A bare reading of above denotes that qua a child less than five years there is a legal presumption with regard to natural guardianship vis a vis “minor’s person” and “minor’s property” both being in favour of the mother. I am of the opinion that benefit of legal presumption of guardianship would also enure therewith all the other consequential rights arising there from including the legal presumption qua custody of a minor below five years in favour of his her mother. 13. I am also persuaded with the view taken by my learned Brother Amol Rattan Singh J. in Tejbir Singh’s caseholding “that the custody of a child below 05 years of agewould naturally lie with the mother and therefore the deemed custody would be with the mother even if actual custody was with the father.” 14. In the aforesaid premise I have no hesitancy to interpret section 6(a) ibid 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. It is so held accordingly. 15. The respondent mother herein at the time of instituting proceedings before the family court was the deemed natural guardian of the minor child. 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. 16. It is conceded position that when the petition for custody was filed before Family Court Panipat the minor daughter was less than 5 years being 3 years and 07 months. Accordingly there is no legal infirmity in the order on 21 01 6 impugned before this Court. 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. 17. Having observed aforesaid I am also in agreement with learned counsel for the petitioner that it is the welfare and convenience of child which is to be seen. Being so Family Court at Panipat should also keep the same in mind while proceeding further with the custody petition. Accordingly all possible endeavors shall be made to avoid travelling of minor daughter from Jagadhri to Panipat by not insisting on her physical presence unless really essential. Even though physical hearings have resumed before the trial Courts in the States of Punjab and Haryana pursuant to recent administrative orders passed by this Court regardless the Family Court at Panipat shall be at liberty to conduct the proceedings either through video conferencing or through WhatsApp Zoom video call depending upon internet connectivity. 18. In the parting it would not be out of place to observe that nothing stated herein above shall be treated as an expression on merits of the case pending before the Family Court. The same shall be adjudicated on its own merits based on the evidence adduced by the respective parties in accordance with law. 19. Disposed of in above terms. January 11 2021 Jiten JUDGE Whether speaking reasoned: Yes No Whether reportable: Yes No 

Summary: “Even if a minor, who is under five years of age may not be residing with mother, but his/her custody would be deemed to be at the place where the mother, but his/her custody would be deemed to be at the place where the mother is residing and the matter could be heard there.” The Punjab and Haryana High Court presided over by J. A. Monga made this ruling while deciding on the case between parents for custody of their minor daughter in the case Akshay Gupta Vs. Divya &amp; Ors., [CR-641 of 2019 (O&amp;M)]. The facts of this case are that the husband and wife started living separately since October 2017, and during that period wife had the custody of the daughter. The wife further alleged that in January 2018 the husband took custody of the daughter through deceitful means by telling her that her grandparents wanted to be with her for few days. The mother alleged that the custody of the daughter has not been handed over to her since that time even after several meetings and Panchayats. The husband alleged that the wife abandoned her matrimonial home and willfully handed over the custody to him. The Family Court at Panipat analyzed the case initiated under Section 10 and 25 of the Guardian and Wards Act. The Family Court decline daughter’s custody to the respondent-wife. Hence, she filed an appeal to the division bench of the High Court. The High Court directed the family court to expeditiously conclude the entire proceedings within a time frame of 5 months. However, after these orders the father took a plea to this Court that the Family Court at Panipat does not have jurisdiction to hear the matter since the child was residing with the father at Yamunanagar/Jagdhari and so to avoid the unnecessary travelling of the minor child the Family Court at Jagdhari should have jurisdiction to hear the matter. So the question before the Court was 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. The Court in this case noted that initially the mother had the custody of the daughter and she had admitted her in a school in Panipat. Further, as per Section 6 of the Hindu Minorities and Guardian Act, 1956, the custody of the child below five years usually lies with the mother and in the present case the daughter is 3 years and 7 months. Hence, the Court stated that “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 further noted that “Petitioner, 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.”