Place of residence of mother to be considered while instituting a petition for guardianship of a minor child below 5 years of age

Punjab & Haryana High Court: A Single Judge Bench of Amol Rattan Singh, J., dismissed a petition filed against the order of the lower court whereby the application of the petitioner under Order VII, Rule 11 of CPC was dismissed.

The main issue that arose before the Court was whether the lower court had the territorial jurisdiction to hear the petition under Section 25 of the Guardian and Wards Act, 1990 read with Section 10 of the Hindu Minority and Guardianship Act, 1956 and Section 26 of the Hindu Marriage Act, 1955.

The Court observed that the application in respect of the guardianship of the minor is to be made to the District Court having jurisdiction in the place where minor ordinarily resides. The Court referred to the case of Sunita Jain v. Mittar Sain Jain2002 SCC OnLine P&H 869, wherein it was held that the place of residence of a minor child below 5 years of age would be the place of residence of the mother. The custody of a child below 5 years of age (especially a female child), would naturally lie with the mother, and therefore the deemed custody would be with the mother even if actual custody was with the father.

The Court held that in the instant case the age of the child was 11 months and hence applying the rule laid down in Sunita Jain’s case, the natural custody of such child would lie with the mother. Hence, the petition for the guardianship of the child was rightly instituted before the District Court of Khadur Sahib. Resultantly, the petition of the petitioner was dismissed and the order of lower court was upheld. [Tejbir Singh v. Baljit Kaur, 2018 SCC OnLine P&H 1682, order dated 02-11-2018]

3 comments

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    Send me entire judgement

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      Please refer SCC Online (2018 SCC OnLine P&H 1682) to read the entire judgment.

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    You Know what the court has decided to help the women intentionally now. Like our chief justice gave a remarkable but a negative decision by omitting Section 497 which will result in admitting serious charges in the future. The core reason is if both the sex are same in the eyes of Justice they must act in that direction. But they do whatever they like. There is no law remaining in this country anymore. They are afraid of giving the right decisions or they are working under the pressure of government neeti. That is Larki Bachao Larki Padhao. So before it was the boy now it is the girl. It shows very clearly about the criteria because there are no criteria. I give you a guarantee that in the future you will see all the families will be destroyed. And they are totally working on and not only working they are running on the Slogan DIVIDE AND RULE. You will see in the future what will be the effect of these judgments. The good example is the present case of the Suicide Case of the constable in the Delhi Secretariate. And I tell you and guarantee you no court or media will speak now for that person because that was male, not a female. And the above case has very clearly mentioned about the judge thinking that father does not love their daughters and only mothers have love in the heart. And fathers are heartless. Nobody contacts me. Otherwise, the person who can see right and wrong contact me I will show how judges are blindly helping the girl even after the proofs are on record, on the file and they are not ready to be strict or want to take actions against the mother, who left her own multi handicap child. And the same Haryana courts are helping by not taking any actions against the girl. I must say shame on the people who help these girls legally especially the lawyers who say anything in the courts just to make some money. But I tell you that a time will come when these people will pay and their own children will pay for the wrong decisions made by these selected people. People use the courts because judges allow them to use it otherwise no one has the guts to play with the courts. But you must have listened to a saying that JUB SAYIAN BHAY KOTWAL TO DAR KAHEKA. Wait and see when the Supreme Power GOD will play with these people and they will have no place to hide. If you are sitting on the top seats, try to make some prestige, do not destroy the prestige of it. Nobody asks one question to these judges that what is the stipulated time for finishing or to provide a final justice to a victim. And I guarantee you if you will ask then also you will not get the right answer. But I tell you what Nobody has the guts even to ask them this question. Then ye sab dikhawa kyon. Mazaak hai hum aur mazaak hee rahenge. Lekin wo jo ooper baitha hai wo ek din zaroor sath hoga aur tab in jaiso ki sazaa bhi waqt par hee dega.

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