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Sarbjit v. Piara Lal And Others

Punjab & Haryana High Court

Apr 1, 2005

Judgment

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Structured Summary of the Opinion — M.M. Kumar, J.

Factual and Procedural Background

The petitioner, Smt. Sarbjit, married Shri Mukesh Kumar on 17.10.1999 at Hoshiarpur. The couple lived at Ambala, where the respondents (the paternal grandparents of the minor) also resided. A male child, Gautam, was born on 11.9.2000 (birth certificate on record shows birth at Hoshiarpur). Mukesh Kumar died on 7.10.2001. The petitioner alleges she was turned out of the matrimonial home on 1.2.2002 and that the respondents forcibly retained custody of the minor child. The petitioner filed a petition under Sections 7 and 25 of the Guardian and Wards Act, 1890 read with Section 6 of the Minority and Guardianship Act, 1956 in the Court of Guardian Judge at Hoshiarpur in March 2002 seeking custody. Earlier, the petitioner had initiated criminal proceedings under Sections 406/498-A IPC, pending at Hoshiarpur.

The Guardian Judge at Hoshiarpur sustained a preliminary objection by the respondents on territorial jurisdiction, relying on Section 9 of the 1890 Act and a 1999 R.C.R authority, concluding that the District Court at Ambala alone had jurisdiction because the child was residing at Ambala. The petitioner filed the present petition challenging that order. During the proceedings the petitioner also sought interim custody by an application (C.M. No. 3233-CII of 2005), alleging she had been prevented from meeting the child and that the original custody petition had been returned after being kept pending for about two years.

Legal Issues Presented

Whether the Civil Court at Hoshiarpur has territorial jurisdiction to adjudicate the petition under Sections 7 and 25 of the Guardian and Wards Act, 1890 read with Section 6 of the Minority and Guardianship Act, 1956 — i.e., whether jurisdiction is determined by the place where the minor "ordinarily resides".
Whether, for a minor below five years of age, the minor’s "ordinary residence" should be treated as the residence of the mother under Section 6(1) of the 1956 Act, thereby conferring jurisdiction on the Court where the mother resides.
Whether, in view of the child's age and the statutory presumption in Section 6(1) of the 1956 Act, interim custody should be granted to the mother (petitioner).
Whether a delay (about two years) in returning a petition on territorial jurisdiction grounds affects the appropriateness of returning the petition rather than permitting adjudication in the forum where the mother is residing.

Arguments of the Parties

Petitioner's Arguments

The minor is under five years of age and the mother is the natural guardian under Section 6(1) of the 1956 Act; the child should therefore ordinarily reside with the mother and jurisdiction should be in Hoshiarpur.
Depriving the child of the mother's custody would be improper because the child's welfare and the natural love and affection of the mother are paramount.
The expression "ordinarily resides" in Section 9 of the 1890 Act should be interpreted to mean where the child is ordinarily supposed to reside (i.e., with the mother), not merely where the child happens to be physically staying.
Delay in proceedings (about two years) and the approaching age of five would make territorial jurisdiction less significant; returning the petition after such delay is inappropriate.
Relied on authorities including K.C. Sashidhar (Karnataka High Court), Dinesh Chandra Gahotri (Supreme Court), and High Court decisions supporting welfare and maternal custody to press for jurisdiction and custody in Hoshiarpur.

Respondents' Arguments

Under Section 9 of the Guardian and Wards Act, 1890, the District Court having jurisdiction where the minor "ordinarily resides" must entertain the application; since the minor was residing at Ambala with the grandparents after the father's death, jurisdiction lies in Ambala.
The minor cannot be treated as residing where the mother resides (Hoshiarpur) simply because she is the mother; the factual residence of the child at Ambala determines jurisdiction.
Relied on authorities including Ramesh Bhardwal v. Ram Saran Dass and Pooja Bahadur v. Uday Bahadur (Supreme Court) to support the contention that jurisdiction remains where the child actually resides.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
1999 (3) R.C.R (C) 219	Relied upon by the Guardian Judge to conclude that Hoshiarpur had no jurisdiction because the child resided at Ambala.	The impugned order of the Guardian Judge had relied on this authority to sustain the preliminary objection on territorial jurisdiction; the High Court considered that approach but rejected the resulting conclusion in light of statutory provisions and other considerations.
Smt. Chandra Kanta v. Superintendent of Police (Rajasthan), 2000 4 R.C.R Civil 652	Petitioner's reliance to support maternal custody and welfare considerations favoring mother.	Cited by petitioner to stress the welfare rationale for awarding custody to the mother; the Court noted petitioner relied on this authority in support of maternal custody based on the child's welfare.
Balbir Kaur v. Jit Kaur (P&H), 2001 1 R.C.R Civil 148	Petitioner relied on this High Court decision to support the welfare-based award of custody to mother.	The Court recorded that the petitioner placed reliance on this decision in support of the submission that welfare of the child favors custody with the mother.
K.C. Sashidhar v. Roopa, AIR 1993 Karnataka 120	Interpretation that the child's residence may be treated as the residence of the mother; used to argue "ordinarily resides" follows the mother's residence.	The Court accepted and relied on the Karnataka High Court's view to support the proposition that where Section 6(1) mandates custody with the mother for children below five, the minor's "ordinary residence" should follow the mother's residence.
Kamleshwari Ram v. Smt. Kaushalya Devi, 1999 1 R.C.R Civil 209 (Patna High Court)	Authority cited for considering the convenience of parties in territorial jurisdiction questions.	Cited by petitioner to stress convenience; the Court considered convenience (including hardship to the petitioner) as a relevant factor in declining to return the petition on territorial grounds.
Dinesh Chandra Gahotri v. Chief of Army Staff, 2001 9 SCC 525	Petitioner's reliance for the proposition that territorial jurisdiction may lose significance after considerable delay.	The Court noted the petitioner relied on this Supreme Court decision to argue delay undermines the objection to jurisdiction; the Court took the delay into account when concluding the petition should not have been returned.
Ramesh Bhardwal v. Ram Saran Dass, 1998-3 120 PLR 35	Respondents' reliance to support the proposition that jurisdiction lies where the minor actually resides.	The Court recorded respondents' reliance on this decision as support for their position that Ambala (where the child lived) was the proper forum; the High Court nonetheless reached a different conclusion on the present facts.
Pooja Bahadur v. Uday Bahadur, 1999 4 SCC 348	Respondents' reliance to support the position that jurisdiction follows where the minor resides.	The Court noted the respondents relied on this Supreme Court authority; it did not treat that reliance as decisive in the circumstances of a child below five and the statutory presumption in Section 6(1).
Rajiv Bhatia v. Govt. of NCT Delhi, 1999 8 SCC 525	Support for the paramount consideration of welfare of the child (referred in connection with Section 13 of the 1956 Act).	The Court relied on this Supreme Court authority as supporting the paramountcy of child welfare in custody decisions.
Sayeed Saleemuddin v. Rukhsana, 2001 5 SCC 247	Authority supporting the welfare principle in custody matters.	The Court relied on this decision, together with Section 13 of the 1956 Act and Rajiv Bhatia, to emphasize that welfare of the child is paramount.
Surinder Kaur Sandhu v. Harbax Singh Sandhu, 1984 3 SCC 698	Protection of wife/ mother against the burden of litigation in an inconvenient forum; convenience of a hapless woman.	The Court relied on this Supreme Court observation to support weighing the petitioner's convenience and to justify permitting proceedings in Hoshiarpur rather than returning the petition to be presented in Ambala.

Court's Reasoning and Analysis

The Court's reasoning proceeded in a sequence of statutory interpretation, application of welfare principles, and consideration of practical convenience and delay:

Interpretation of Section 9, Guardian and Wards Act, 1890: The Court noted Section 9 requires that an application concerning guardianship of the person of a minor be made to the District Court having jurisdiction where the minor "ordinarily resides."
Interaction with the 1956 Act: The Court observed, relying on provisions of the 1956 Act, that the 1890 Act applies in addition to the 1956 Act unless inconsistent. Section 6(1) of the 1956 Act mandates that custody of a minor who has not completed five years "shall ordinarily be with the mother."
Consequence for "ordinarily resides": The Court reasoned that, given the mandatory provision of Section 6(1), the phrase "where the minor ordinarily resides" in Section 9 must, for a child below five, be interpreted so that the residence of the mother is to be treated as the minor's residence. In short, the minor's "ordinary residence" follows the mother's residence where Section 6(1) applies.
Authority support: The Court accepted the viewpoint in K.C. Sashidhar (Karnataka High Court) supporting this proposition and thus found the Guardian Judge in Hoshiarpur had erred in strictly treating the child's physical presence at Ambala as determinative without regard to the statutory rule favoring maternal custody for under-fives.
Consideration of delay: The Court took into account that the petition had been pending for about two years (filed on 17.3.2002) and that the Guardian Judge returned the petition on jurisdictional objection only after that delay. The Court found that ordinarily a petition should not be returned on such a jurisdictional objection after such a lapse of time.
Paramountcy of welfare: The Court emphasized the paramount consideration of the child's welfare, referencing Section 13 of the 1956 Act and Supreme Court authorities (Rajiv Bhatia; Sayeed Saleemuddin) to justify placing the child with the natural guardian (mother) who can provide natural love and affection at a tender age.
Convenience and hardship: The Court considered the practical inconvenience and burden that would fall upon the petitioner if required to prosecute custody proceedings in Ambala, especially in light of pending related criminal proceedings in Hoshiarpur; it relied on Surinder Kaur Sandhu to stress protecting the wife from the burden of inconvenient litigation.
Relief granted: On the combined basis of statutory interpretation (Section 6(1) and Section 9), welfare considerations, delay, and convenience, the Court concluded the petition should not have been returned and granted relief accordingly.

Holding and Implications

Holding:

The Court's final disposition was that the petition succeeds and the impugned order dated 17.1.2004 is set aside. The Court directed that the Guardian Judge, Hoshiarpur, decide the petition filed by the petitioner expeditiously. In addition, and in view of Section 6(1) of the 1956 Act, the Court granted interim custody of the minor child Gautam (who is admittedly below five years of age) to the mother (petitioner), directing that the child be handed over to the petitioner within one week. The petitioner was also awarded costs of Rs. 10,000. The Court concluded with the notation: "Petition allowed."

Implications:

The direct operational effect of the decision is: (a) the impugned jurisdictional order is set aside, (b) the custody petition will be heard in Hoshiarpur by the Guardian Judge, and (c) interim custody of the child is given to the mother with a cost award of Rs. 10,000.
The Court relied on an interpretation that for a child below five years, the statutory presumption in Section 6(1) that custody "shall ordinarily be with the mother" informs the meaning of "ordinarily resides" in Section 9 of the 1890 Act — leading to the conclusion that the mother's residence may determine territorial jurisdiction in such cases. This is the reason the Court permitted the case to proceed in Hoshiarpur.
The opinion does not state that it is laying down a binding new precedent for all future cases; the decision is grounded on the application of the cited statutory provisions and authorities to the facts before the Court. No express declaration was made that a novel legal principle of broader application was established beyond the resolution of the present dispute.

Show all summary ...

M.M Kumar, J.:— The sole question which requires determination in the present case is whether the Civil Court at Hoshiarpur has territorial jurisdiction to adjudicate the petition filed by the petitioner who is a widow, under Sections 7 and 25 of the Guardian and Ward Act, 1890 (for short 1890 Act) read with Section 6 of the Minority and Guardianship Act, 1956 (for short 1956 Act). Learned Civil Judge (Sr. Division), Hoshiarpur has sustained a preliminary objection raised by the respondents who are the grand parents of the minor child and it has been held by placing reliance on Section 9 of the 1890 Act that since the child is residing at Ambala and the petitioner, who is the natural mother is residing at Hoshiarpur, the Courts at Ambala alone would have the jurisdiction.

2. Brief facts of the case which are necessary for disposal of the controversy raised in this petition are that the petitioner Smt. Sarbjit got married to the son of respondents Shri Mukesh Kumar on 17.10.1999 according to Hindu rites at Hoshiarpur. Both of them lived together at Ambala where the respondents who are grand parents of the minor child have been residing. One male child Gautam was born out of the wedlock on 11.9.2000 at Hoshiarpur. The petitioner has placed on record a copy of birth certificate showing that the minor child was born at Hoshiarpur (P-2). There are allegations of demands of dowry by the respondents and its tolerance of unfair behaviour by the petitioner. It is asserted that Mukesh Kumar, husband of the petitioner died on 7.10.2001 under some mysterious circumstances. After his death, the petitioner has been allegedly turned out of the matrimonial home on 1.2.2002 It is alleged that she was denied even the custody of the minor child Gautam who had been forcibly and illegally snatched by the respondents. Despite intervention of respectables to keep the petitioner in the matrimonial home or give her back the minor son Gautam but all in vain. When nothing materialised then, a petition under Section 7 and 25 of the 1890 Act read with Section 6 of the 1956 Act for taking custody of the minor Gautam was filed by the wife-petitioner in the Court of Guardian Judge at Hoshiarpur in March, 2002. The petitioner had also initiated proceedings earlier under Section 406/498-A I.P.C which are pending in the Court at Hoshiarpur. The Guardian Judge, on the basis of objection raised in the reply filed by the respondents, has recorded a conclusion that such a petition could be filed within the jurisdiction of District Courts where the minor ‘ordinarily resides’ as has been provided by Section 9 of the 1890 Act. The operative portion of the impugned order is extracted below for the facility of reference:—

4. It is admitted case of the parties that the minor child was born at Ambala and after the death of Mukesh Kumar, husband of the petitioner, the petitioner started residing at Hoshiarpur whereas the child is residing with his grant parents at Ambala. The allegations of the petitioner is that the child was forcibly kept by the respondent at Ambala and she was shunted out from her matrimonial home. But these allegations have been denied by the respondent at the time of arguing the case of jurisdiction point. Section 9 of the Guardian and Wards Act provides that 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.

7. In the present case, it is admitted case of the parties that the minor child is residing at Ambala since his birth and his mother is residing at Hoshiarpur and as per the law laid down by Hon'ble Supreme Court in 1999 (3) R.C.R (C) 219, the Court at Hoshiarpur has no jurisdiction. Therefore, the present petition is ordered to be returned to the petitioner for presentation of the same in the competent court.

3. During the pendency of the instant petition, an application C.M No. 3233-CII of 2005 has also been filed for grant of interim custody of the child, asserting that the custody petition filed by the petitioner was returned to her by the Guardian Judge, Hoshiarpur after keeping it pending for over about 2 years. There are further allegations that the respondent-grand parents are not even permitting the petitioner to meet the child. Reply to the aforementioned application has also been filed, wherein the allegations with regard to depriving the petitioner the opportunity to meet the child have been controverted. In para 3, details have been given, as to how the respondent-grand parents have permitted the petitioner to meet the child.

4. Mr. Sandeep Bansal, learned counsel for the petitioner has argued that respondent-grand parents of Gautam cannot look after the interest of the child especially when it is remembered that child is less than five years of age and that the mother is the natural guardian. It would not be proper to deprive the child the natural love and affection of the mother. In support of his submissions, learned counsel has placed reliance on a Division Bench judgment of Rajasthan High Court in the case of Smt. Chandra Kanta v. Superintendent of Police (Rajasthan) 2000 4 R.C.R Civil 652, and a judgment of this Court in Balbir Kaur v. Jit Kaur (P&H) 2001 1 R.C.R Civil 148. According to learned counsel, the paramount consideration of the welfare of the child would be amply met if the custody of the child is given to the mother.

5. Assailing the impugned order passed by learned Guardian Judge Mr. Bansal has argued that the expression ‘ordinarily resides’ used in Section 9 of the 1890 Act would not mean where the child is actually residing, but it would mean where it ordinarily supposed to be residing. In support of his submissions, learned counsel has placed reliance on a judgment of Karnataka High Court in case of K.C Sashidhar v. Roopa AIR 1993 Karnataka 120, and argued that the mother is legal guardian of a minor of tender age and, therefore, the place of residence of mother would be considered to be the same place for the minor. It has further been urged that for deciding the question of territorial jurisdiction, the convenience of parties is also required to be taken into consideration and support has been sought from the judgment of Patna High Court in Kamleshwari Ram v. Smt. Kaushalya Devi 1999 1 R.C.R Civil 209.

6. Mr. Bansal has further submitted that a calculated attempt is being made to ensure that the child born on 11.9.2000 attains the age of 5 years, and they are out of the ambit of Section 6 of the 1956 Act which provides that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. Learned Counsel has further argued that the question of territorial jurisdiction would lose significance if considerable period has passed after entertaining the petition. In support of his submissions, learned counsel has placed reliance on a judgment of Supreme Court in Dinesh Chandra Gahotri v. Chief of Army Staff 2001 9 SCC 525.

7. Mr. Balbir Singh, learned Counsel for the respondent-grand parents has argued that under Section 9 of the 1890 Act, there is a specific bar created for initiation of proceedings for custody of a minor and such proceedings can be initiated in the District Court having jurisdiction in the place where the minor ordinarily resides. According to the learned counsel after death of Shri Mukesh on 7.10.2001, the minor child was living at Ambala with his grand parents and, therefore, it cannot be claimed that the minor child would be deemed to be living where his mother lives i.e Hoshiarpur. In support of this submission, learned counsel has placed reliance on a judgment of this Court in the case of Ramesh Bhardwal v. Ram Saran Dass 1998-3 120 PLR 35, and a judgment of the Supreme Court in Pooja Bahadur v. Uday Bahadur. 1999 4 SCC 348.

8. After hearing learned counsel for the parties and bestowing my thoughtful consideration. I am of the considered opinion that this petition deserves to be allowed for various reasons. It would be appropriate to make a reference to Section 9 of the 1890 Act which reads as under:—

9. Court having jurisdiction to entertain application.— (1) 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.

(2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the district Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property.

(3) If an application with respect to the guardianship of the property of a minor is made to a district court other than that having jurisdiction in the place where the minor ordinarily resides, the court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other district having jurisdiction.

9. It would also be pertinent to make a reference to Section 6 of the 1956 Act which reads as under:—

6. Natural Guardians of Hindu Minor.— The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her ‘undivided interest’ in joint family property, are—

(a) In the case of a boy or 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;

(b) In the case of an illegitimate boy or an illegitimate unmarried girl the mother, and after her, the father;

provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section—

(a) If he has ceased to be a Hindu, or

(b) If he has completely and finally renounced the world by becoming a hermit (Vanaprastha) or an ascetic (yati or sanyasi).

Explanation:—In this section, the expressions ‘father’ and ‘mother’ do not include a step-father and a step-mother.

10. A perusal of the Section 9 of the 1890 Act makes it abundantly clear that the application for guardianship of a person of the minor has to be made to the District Court having jurisdiction of the place where the minor ‘ordinarily resides’. According to the provisions of Section 2 and Section 5 of the 1956 Act, the 1890 Act is in addition, and not in derogation thereof. In other words, 1890 Act would continue to apply unless there is something contrary provided by 1956 Act. Section 6(A) in unmistakable terms has provided that the mother as against the father is entitled to the custody of a child upto the age of 5 years which is a mandatory provision. Thereafter, the parties namely mother and father may apply for the custody which would be decided by the Court by keeping in view the paramount consideration of welfare of the child. A statutory recognition has been given to the principle of paramount consideration by Section 13 of the 1956 Act.

11. The question then arises whether the expression ‘minor ordinarily resides’ used in Section 9 could be construed to mean that the minor would cease to reside with his mother. Once under Section 6(1), it is mandatory that a child below the age of 5 years has to reside ordinarily with the mother then the expression where the minor ordinarily resides’ has to be interpreted to mean the residence of the mother. In other words the residence of the mother would follow the residence of the son. This proposition is supported by the view taken by the Karnataka High Court in the case of K.C Sashidhar (supra). I am further of the view that the learned Guardian Judge has lost sight of the fact that a period of 2 years had already expired since the filing of application by the petitioner. It is appropriate to mention that the application was filed on 17.3.2002 and she was non-suited by sustaining the objection of lack of territorial jurisdiction. After such a delay ordinarily the petition should not be returned by sustaining the objection of territorial jurisdiction.

12. It is trite to observe that the paramount consideration of the child have to be kept in view in deciding these matters. The tender age of the child below 5 years would necessarily require the natural love and affection which the child is likely to get in the lap of his mother, rather than that of grand-mother and grand-father who are respondents in this case. The custody of such a child with the mother would facilitate his proper growth and development. For the aforementioned view, reliance could be placed on Section 13 of the 1956 Act and the judgment of Supreme Court in the cases of Rajiv Bhatia v. Govt. of NCT Delhi 1999 8 SCC 525, and Sayeed Saleemuddin v. Rukhsana 2001 5 SCC 247.

13. There is another aspect of the matter which requires to be noticed. It would be highly inconvenient for her to prosecute proceedings for the custody of her minor son Gautam at Ambala. It is well settled that the convenience of hapless woman like the petitioner is always kept in view. It is the duty and function of the Court as has been observed by the Supreme Court in Surinder Kaur Sandhu v. Harbax Singh Sandhu 1984 3 SCC 698, to protect the wife against the burden of litigation in a convenient form. Moreover, the proceedings initiated by the petitioner against the respondent-grand parents under Section 498-A and 406 are also pending in the Courts at Hoshiarpur which the respondent-grand parents have to attend.

14. For the reasons stated above, this petition succeeds. The impugned order dated 17.1.2004 is set aside. The Guardian Judge, Hoshiarpur is directed to decide the petition filed by the petitioner-mother expeditiously. Keeping in view the principles enunciated by Section 6(1) of 1956 Act, the interim custody of the minor child Gautam who is admittedly below five years of age is granted to mother. Let the child be handed over to the petitioner-wife within a period of one week from today. The petitioner-mother shall also be entitled to costs which are quantified as Rs. 10,000/-.

R.M.S

Petition allowed.