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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

“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 & Ors., [CR-641 of 2019 (O&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.”

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