Child's Ordinary Residence And Not Natural Guardianship Decides Which Court Will Have Jurisdiction In Custody Dispute: Punjab & Haryana HC

The Punjab & Haryana High has said that the "ordinary residence of a child" or a ward would determine which court would have jurisdiction to decide the child's custody under the Guardianship & Wards Act. It further underscored that the "ordinary residence" of the child would determine the court's jurisdiction which can hear the custody case, and the "natural guardianship" of the child will not determine this jurisdiction. The court further emphasized that the two concepts cannot be superimposed. As per Section 9 of the Guardianship & Wards Act (GWA), 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. Meanwhile Section 6 of the Hindu Minority and Guardianship Act (HMGA) states the natural guardians of a Hindu minor wherein the father is a guardian for an unmarried boy/girl, and after the father it is the mother; "provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother". Examining the provisions of the two acts, Justice Deepak Gupta said, "Thus, the legal position which emerges is that Section 6 (a) of HMGA and Section 9 of GWA operate in different fields, independent of each other. While Section 6 of (HMGA) 1956 Act deals with natural guardian of a Hindu Minor, Section 9 of (GWA) 1890 Act lays down the rules with respect to territorial jurisdiction of the Court, in which the application for custody of the child has to be filed. The ordinary residence of a child would determine the jurisdiction of the Court under Section 9 of 1890 Act and thus, the natural guardianship of a minor will not determine the jurisdiction and the two cannot be superimposed"."If the legislature intended that the residence of the mother should determine the ordinary residence of the child, it would have used this expression in Section 9 of 1890 Act. However, this is not so and therefore, provision of Section 6 of 1956 Act cannot be imported to interpret Section 9 of 1890 Act. It is further clear that jurisdiction of the court to decide custody maer of the child is where the ward/child for the time being ordinarily resides. It does not require that a father or mother must ordinarily reside with the ward and that such queson may be raised at the time of final hearing of the application under Section 25 of the said Act," the court added. In the present case, the father had moved a plea under Section 6 HMGA and GWA seeking custody of their daughter before a court Guardian Judge, Chandigarh. The mother moved an application claiming lack of the court's jurisdiction to entertain the plea as the child was ordinarily residing in Jalandhar. However the Civil Judge, Chandigarh rejected the mother's plea observing that both father and mother of the child are residing in Chandigarh; that the custody of a child below 05 years of age (especially female child) would naturally lie with the mother and therefore, the deemed custody would be with the mother, even if the actual custody was with the parents of the mother. With this reasoning, the Civil Judge held that the Chandigarh Guardian Court has the jurisdiction in the matter. Against this the mother moved the high court. The court also said that the intention of the legislature in Section 9 of Guardians and Wards Act with respect to the jurisdiction is that application for the guardianship of the person of the minor shall lie to the District Court having jurisdiction in the place where the minor is actually and physically residing and not as per the proviso to Section 6 (a) of Hindu Minority and Guardians Act, 1956. With respect to Section 6 HMGA the court said that by using the language "shall ordinarily be with the mother" the intention of the legislature is that since the child below 5 years is normally breast-feeding child and requires love and affection from the mother and since mother gives birth to the child. “The child is more comfortable in the lap of the mother, therefore the intention of the legislature is welfare and the comfort of the child. For that the language is "shall ordinarily be with the mother' and not "shall be with the mother". By using the words "shall ordinarily be with the mother", the intention of the legislature is to see the welfare of the child,” the Court said.It added that the custody of the minor cannot be with the mother who is unchaste, insane, leading immoral life, insensitive, leading to estranged matrimonial relationship with her husband the father of the child), sick, physically or mentally suffering from any disability, not conducive for ideal upbringing of the child. Therefore, the intention of the legislature is that the proviso to Section 6(a) (HMGA) is not mandatory but depends upon the welfare of the child. The judge said further the intention or the legislature under Section 6 HMGA would have been that the natural guardian of Hindu minor...

Child's Ordinary Residence And Not Natural Guardianship Decides Which Court Will Have Jurisdiction In Custody Dispute: Punjab & Haryana HC

Aiman J. Chishti

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