In a significant ruling, Punjab and Haryana High Court clarified that even if a minor who is under the age of five is not residing with his/her mother, the minor’s custody would be deemed to be the place where the mother is residing, and a case can be heard there.
A couple got separated in 2017, and at that time, their minor daughter’s custody was with the mother.
In January 2019, the father deceitfully took the child away from the mother by stating that his parents wanted to meet her for a few days.
According to the mother, the child’s custody was never returned to her, even though the Panchayat tried to resolve it.
On the other hand, the petitioner(father) alleged that his wife left her matrimonial home and handed the child’s custody to him.
Case before the Court
The parties initiated proceedings u/s 10 and 25 of Guardians and Wards Act before Family Court, Panipat.
Vide an interim order, Family Court refused to grant custody of the minor child to the mother.
Aggrieved, the mother filed an appeal in the Punjab and Haryana High Court. The Court directed the family court to conclude the case expeditiously, preferably within five months.
Before the Family Court, the father contended that only the Court under whose jurisdiction the child Ordinarily resides could try the case. He further contended that as the child resided at Jagadhri/Yamunanagar, the case should be transferred to Family Court, Jagadhari.
Observations of the Court
The Court opined that the father did not raise the same issue before the Division Bench and did not seek to leave to pursue it; therefore the Court cannot allow him to raise the issue at a late stage.
Hon’ble Court referred to Section 6 Hindu Minorities and Guardians Act and observed that custody of a child below five years would be with the mother. The Bench further remarked that the child was three years and seven months old at the time of the separation. As per Section 6(a) of the Act, the act intended that even if the minor child were not in the mother’s physical custody, the child’s custody would be deemed to be with the mother.
In this regard, the Court held that Family Court, Panipat has the jurisdiction to try the case.
Title: Akshay Gupta vs Divya & Ors
Case No.:CR-641 of 2019 (O&M)
Date of Order:11.01.2021
Coram: Hon’ble Justice Arun Monga