Exclusive HOLI Discounts!
Get Courses and Combos at Upto 50% OFF!
Upgrad
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

gunjan aggarwal (partner)     12 October 2009

jurisdiction of court in custody matters

i am fighting a custody case of my daughter of 4.9 months old.my wife left me and my daughter on 27.10.2007 and  then abducted the child on 4.8.2008 from the school in delhi to ghaziabad and i filled the case in oct 2008in delhicourts after giving notice to her.now can my petition can be dismissed bcs of jurisdiction of delhi courts since the child in now living in ghaziabad.the mother is coming daily to delhi for job and reaching late in night as well she has filled her latest income tax returns from the delhi address and her car is also registered in delhi and the child has her name included in delhi ration card as well she was studing in a delhi school from the begining before her abduction by mother.mother is getting treatment of manic depression from the last 3 yrs as well the house of her parents has a boys hostel on two floors as well as other commericial acitivities like a beauty parlour as well as property business and a computer institute and she has denied all this in his reply to courts .my wife is doing two jobs and has no time for the child.now i would like to ask u that can my case be dismissed by delhi courts bcs of jurisdiction problem at the stage of framing of issues and arguments on interim custody. pls reply with other revelent judgements on this issue.



Learning

 15 Replies

Kamal Grover (Advocate High Court Chandigarh M:09814110005 email:adv.kamal.grover@gmail.com)     13 October 2009

Dont worry your case is good and court will not dismiss your case on jurisdiction point.

Regards

adv.kamal.grover@gmail.com

Khaleel Ahmed (Legal Advisor)     14 October 2009

The court cannot grant custody of your minor daughter in your favour, in the above mentioned grounds. You have not mentioned that, the respondent your wife has challenged the jurisdinction of the delhi court in her counter or not.

gunjan aggarwal (partner)     15 October 2009

lawyer of other side has raised a objection for jurisdiction.now the court will decide on jurisdiction .is it so easy to change jurisdiction of case then everbody will do forcefull abduction only.kindly advice by giving some case citation.thanks


(Guest)

1. Kindly read S. 9 of GWA for understanding Jurisdiction of Court in GWA matters once issues are framed.

2. In connection with the term '' ordinary residence'' as appearing in Section 9 , Lord Denning MR has made the following observations:-
"
So long as the father and mother are living together in the matrimonial home, the child's ordinary residence is the home, and it is still his ordinary residence, even while he is away at Boarding School. When father and mother are at Variance and living separate and apart, and by arrangement the child resides in the house of one of them, then that home is the ordinary residence, even though the other parent has access and the child goes to him from time to time. Quite generally, I do not think a child's ordinary residence can be changed by one parent without the consent of the other or by other's acquiescence.''
3. In JAGDISH CHANDRA GUPTA VS. VIMLA GUPTA,AIR 2003 ALL 317 it hasbeen held that:-

"The expression 'ordinarily resides' signifies something more than a temporary residence. Even though the period of such temporary residence may be considerable, the place where the minor generally resides and would be expected to reside but for special circumstances may be taken to be the place denoting a place where the minor ordinarily resides.''

4. Another relevant provision which deserved to be looked into at this juncture is section 6 of Hindu Minority & Guardianship Act 1956 which runs as under:-

Natural guardians of a Hindu Minor:-
The natural guardian 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 an 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 case of an illegitimate boy or an illegitimate unmarried girl- the mother, and after her, the father;
c)in the case of a married girl- the husband:
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 or an ascetic.

5. The conjoined reading of both the statues , specifically shows that the jurisdiction to file petition U/s 25 Guardianship & Ward Act lies only with the court where the minor in question ordinarily resides. So as to ascertain as to what is the place where the minor can be adjudged to be ordinarily residing is dependent on various circumstances. These circumstances have been elaborately dealt with by Hon'ble Delhi High Court in case title RAMJI LAL YADAV vs. DILIP KUMAR YADAV 6(1998),DLT 526. Hon'ble High Court while summing up the relevant consideration has observed :-

''while ascertaining the residence of the minor, one has to see all the circumstances, the place where the child is living , the relation who is having the custody, the person who has preferential claim of the custody or in natural care, age of the child, welfare of the child, qualification or disqualification of the preferential natural guardian and place of residence of such guardian to decide constructive and deemed residence of the minor. Each factor is equal important and subservient to the ultimate purpose of over all welfare of the child.''

6. In case title Eugenia Archetti Abdulla Vs. State of Kerala 2005 (1) RCR Civil 259 , Division Bench of Hon'ble Kerala High Court observed,

'' the lap of the mother is the natural cradle where the safety and welfare of these twins under the age of three year can be assured and there is no substitute for the same. Mother's protection for such children is in dispensable. As held by the full bench : we can not think of any other protection which will be equal to in measure and substance to that of the mother.''

7.In Seema @ Preeti Vs. Parmod Chanderkant Verneker 2005 (1) RCR Civil 258 Hon'ble Karnatka High Court observed that :

''it is well settled that while considering the application for transfer of matrimonial proceedings , the convenience of the wife has to be looked into as laid down by the Supreme Court in the case of Sumita Singh Vs. Kumar Sanjay and another AIR 2002 SC 396.''

8. In case title Smt. Sarabjeet Vs. Pyara Lal and others 2005 (3) RCR Civil 213 Hon'ble Punjab and Haryana High Court while discussing the term ''

MINOR ORDINARILY RESIDES'' observed that :
Section 6 A of the Hindu Minority and Guardianship Act in unmistakable term has provided that the mother as against the father is entitled to the custody of the child up to the age of 5 years which is a mandatory provision. Thereafter parties being the 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........ once

U/s 6 a , 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 ..... the tender age of the child below five years would necessarily require the natural love and affection which the child is likely to get in the lap of his mother .......the custody of such a child with the mother would facilitate his proper growth .''

9.In another case title Bharat Bhushan Vs. Madhu 2005 (3) RCR Civil 206 Hon'ble Punjab and Haryana High Court Observed,

'' there can not be two opinions that mother is always in a better position to look after and cater to the biological needs of a female child.''

10.In case title Anita Krishan Kumar Kachba Vs. Krishan Kumar Ram Chander Kachba AIR 2003 Bombay 273, DB of Hon'ble High Court ,

''in the formative years, it is the mother who can look after the physical , biological, psychological , mental , spiritual or ethical growth of a child ''

11.In other case titled Chetna Ram Teerath Vs. Kumar V. Jagirdar 2003 (3) RCR Civil 52 , Hon'ble Karnatka High Court observed :-

'' the company of the mother is the most natural thing for child and that is what has evolved over a period of generation. So long as mother does not suffer from any disqualification , she does not dis entitle herself to bring up her child , neither father nor any other person can endow the same kind of love and affection , care and sympathies to a child that a mother can.''

12. These golden principles have to be applied on the facts of this case as well before a decision can be arrived at as to what is the ordinary place of residence of the child . She is living with her respondent mother at Gaziabad . The age of the child is such that she needs mother's care and comfort besides spending quality time with her.

13. Further, in AIR 2005 Punjab and Haryana 237 titled Smt. Servjeet Vs.Pyara Lal and another while referring to AIR 1994 SC 1224 Surender Kaur Sandhu Vs. Harvansh Singh Sandhu, Hon'ble High Court observed:

'' there is another aspect in this matter which requires to be noticed. It would be highly inconvenient for her to prosecute proceedings for the custody of the minor Gautam at Ambala. It is well settled that convenience of hopeless woman like the petitioner is always kept in view. It is the duty and function of the court.''

14.Applying the dictum laid in the aforesaid case laws on the facts of the case in hand, since the respondent mother is living at Gaziabad alongwith the child she should not be forced to commute all the way to Delhi, just to defend the custody of her minor child.

15.As such summing up the entire discussion, I think the Hon'ble Judge will not have hesitation in concluding that place of ordinary residence of child is Gaziabad and not Delhi as sought to be made by the petitioner .

Sorry to disappoint you but with above observations the preliminarily issue will be accordingly decided against the petitioner and in favour of the respondent.

However do not loose hope. I am also fighting for custody of my 9 years old fremale child.

Regards,
D.Arun Kumar, New Delhi

gunjan aggarwal (partner)     17 October 2009

dear mr arun kumar .thanks for replying but i feel in my case since the mother is coming to delhi for attending her office daily and moreover she also travels upto gurgaon for attending her second office so no body will force her to come to delhi.in this case the child was abducted from my custody in delhi and the child was a resident of delhi at the time of abduction.since i filed the petition in very short period of time so i feel the court will also consider that the house in which she is presently living has a boys hostel where 45 boys live in that house and her mother reaches her ghaziabad house very late and after that she has to work for her second job and hence has no time for the child.the mother is filing her latest it returns from the delhi address her car & tds returns are also from delhi so lets see what happens since it is a case of kidnapping by mother who is also suffering from bipolar disorder and all the medical papers are in front of the court.since i feel that it is no so easy to change the jurisdiction just by kidnaping the minor from one place to another.thanks


(Guest)

Dear Gunjan,
Thank you for healthy debate on "child custody case jurisdiction?".

If you have filed Suit in "very short time" then I also feel that you should have filed HCP as you "feel" that she has abducted child. Then other suits shall follow.

But, your Ld. Counsel may have his sightings so I should not comment much on the natur eof suit that has been filed in very short time. However could you advise under which Sections and in which Code you have filed the present Suit and its location (City / District)?

Also study this case - AIR 1983 Bombay 242 (In re: Dr. Givanni Marco Muzzur and etc. etc. Petitioners) where children were brought to Mumbai and they were in "transit" hence the court said child jurisdiction case is not in Mumbai !

To the best of my understanding of Jurisdiction of Child in custody matters it is where the child ordinariry resides is formed as jurisdiction hence I mentioned to you draft of an Order which the court may give explaining all that I explained in above format order.

Botomline with highest regards to legal fraternity; a litigant should also study law of the subject with case citations to understand his plaint and also for helping his hired Ld. Counsel with logical thinking in addition to his professional help extended to his client(s).  The ultimate goal is to win a case........right ! hence this soft comment from me :-)

Do keep us posted on the progress of the case as it is very interesting scenario. And once again I wish you very best in the suit.

Rgds,
D. Arun Kumar, New Delhi

gunjan aggarwal (partner)     17 October 2009

thanks again mr d.arun kumar for giving some nice advice.ur case citation has also help me a lot.pls inform us ur source so that i can also search for some more case citation in my case.i will certainly keep u posted on any new devlopement.in our case since the respondent does not have any other thing other then being mother as she openly says that since i am ther mother i will get the custody in the end so she thinks she can do any thing she likesand thats why have spoken only lies in her w s statement in court including about  her jobs ,her salary,her house status .whereas my contetion is that the welfare of the child should be seen and thats why have submitted about 100 photocopys to prove that she is lying and giving wrong information to court actually the law in this case is with the ladies so i am trying my level best .lets see what  happenes.i have also submitted a cd in court in which it can be heard and can be seen as a video the way the respondent behaves when she gets her bipolar attack inspite of doing v  good 2 jobs.i will once again request you to kindly give me ur source of case study.i will wait for ur message.since u are also in delhi pls inform ur telephone number or contact address. 

waiting for ur response

thanks and regards

gunjan aggarwal

9810635466

 


(Guest)

Well what to say reading your mail reply ! As I mentioned earlier I am contesting in person till Delhi HC (so far I reached HC and next stop very soon is SC) and bze of not having much  money I can't afford hiring an Advocate and hence on each Court dates I sit hours at end at various Court Library studying about case laws and doing research on Judis sites of various Courts and make lots of notes about various cases and logical decisions in them and try to corelate with my contesting cases for a probable similar relief he he .......
Concerning your case I showed the "other side" which is "in general court's thinking" to make you stronger and fight it out correctly with your Ld. Counsel and both of you need to train each other as it is the winning on Law points which matters n not "egos" at the end:-)
I do respect the Ld. community, one as I'm a professional too in my fied and two their logics and court craft really fascinates me...........and in sum total I'm learning on the go.
Keep posting here more often for everybody's learning and polishing respective knowledge base progress of your suit.
Also remember in child custody it is the satisfaction which matters more than win to loose at the end as it is the child which looses the most in custody matters in reality which we realise bit late. A child needs both parents no matter who is good or bad which is infact parents destiny not child's !
My email ID is ishqindia@gmail.com and my cell no. is already there in my short profile.
Rgds,
D. Arun Kumar, New Delhi

gunjan aggarwal (partner)     18 October 2009

mr d . arun kumar thanks for giving me ur email address.on the jurisidction issue i think each case is decided by the merits of that case.the other side has to convince the court why the mother has abducted the child in between her edcuation  from    delhi  and moreover why she has not applied for custody from oct 2007 till aug 2008 when she was not living with the minor and moreover she has to also convince the courts that why she has denied all the facts and have lied in his written statement before the court.in his ws she has written that she works from homes whereas i have produced records to show that she visits her office daily from 9 in the morning till 7.30 and reaches her ghaziabad house not before 9 in the night and after that she has to work for the second job.she has also denied that there is a boys hostel and the child remains in the beauty parlour since there is no body to look after her as mother is in her office in delhi.i have produced photos and other video recordings and telephonic recordings to show that what ever i am saying is right.do u still feel that court will favour her since the cause of  this  petition lies  in delhi .if she would have not abducted the child the minor must be studing in delhi now but for his removal her ghaziabad residence is only temporary.pls inform me about ur source for citation so that i can also help my lawyer.thanks


(Guest)

Dear Sh. Gunjan ji,
I feel without offending your emotions that we are taking more bandwidth than needed of the briefs submitted by you as replies upon replies coming forth.

I also feel that you have hired an ld. advocate and if you show the citator nos. of quoted judgments replied in this post he will definitely find them which is his professional job and kindly also respect that no amount of spoon feeding helps a litigent !

And for you to find yourself citations / judgments I already given reference in one of the posts here that is searching via keywords at various courts judic.nic.in and or www.indiakanoon.com websites and this very platform past messages sections which you have to search yourself and understand the Law of subject matter which is on going team / self exercise.

And also for self studying subject matter you need to buy books (commenteries) especially that of Mullas or that of Late Prof. Paras Dewan's and so on so forth.

And at the end if you have more enquires then request you to interact via PM mode as I feel other querries also need to be viewed and replied by Ld. people here as it is a public platform for interacting with ld. Lawyers with public. Hence I close from my side further replies to this post with aforesaid notes / hints.

Kindly respect "common cause" sentiments and or respect space here.
Regards,
D. Arun Kumar, New Delhi

Sanjeev Kuchhal (Publishers)     24 October 2009

Sir I would like to cite a latest ruling of Bombay High Court which says that "Custody of minor child _ Writ of habeas corpus can be pressed into service for granting custody of a child to the deserving spouse _ In issuing the writ of Habeas Corpus in the case of infants the jurisdiction which the Court exercises is an inherent jurisdiction as distinct from a statutory jurisdiction conferred by any particular provision in any special statute." (2009 (10) LJSOFT 40)

"

Kamal Grover (Advocate High Court Chandigarh M:09814110005 email:adv.kamal.grover@gmail.com)     24 October 2009

Dear Gunjan,

The child is abducted at Delhi and only delhi police can investigate and proof this fact secondly, your wife has office in Delhi so jurisdiction could be delhi therefore jurisdiction cannot be change and no objection can be raise in this respect.

Further, there are 80% chances that court will allow custody of child in your favour coz as per child welfare, it is with u only and as per circumstances also.

 

U have to stress only on child welfare and abduction from delhi.

So Good luck.

Regards

adv.kamal.grover@gmail.com

K. Rajendra Prakash (Advocate)     04 November 2009

Court in Delhi has jurisdiction.  It cannot be said that courts will not give you the custody of child.  Paramount consideration is the welfare of the children.  Dont worry.

sarfaraz (electrical engineer)     30 January 2010

sir my wife is living with mother and sister and 2 brothers at 50k.m. of my home.she went there after pregnet and to do delivary as per our society on 04.04.07.but after some time telephonic dispute with my sister in law. so my sister in law washed up her mind against me. on 30.06.07. my wife got female chil but they did not informed us to see my daughter and meet my daughter.we got this message by our relative who are living in their area. we went to my mother in law's home to see my daughter but they did not allow us to go inside of their home.we tried to solve matter by social and our caste's leader but they are not ready to compromise.at that time there was good life of my wife and me.sir they have filed case against me as per cprc act 125. but i am ready to live with her near her mother's home.but they are not ready.sir i have not seen my daughter since her birth.now i want to take custody of my daughter and want to take my daughter with my home with my mother and father.i have filled case in district court as per guardian and ward's act.on 08.012.09.sir my mother in law is working in government job and my sister in law is LIC agent and my 2 brother in law are working in private firm. and my wife is hendling beauti parlour. so how can my baby live what is her future at there? sir can i get custody of my daughter and can i get permission to meet my daughter till this case come to oreder?please help me


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register