Child’s custody presumed to be with mother, irrespective of residence: HC

Saurabh Malik

Tribune News Service

Chandigarh, January 19

In a significant judgment liable to end legal controversy over territorial jurisdiction of courts hearing pleas of estranged couples, the Punjab and Haryana High Court has made it clear that a minor under five years of age may not be residing with mother, but custody will be deemed to be at the place where she is putting up and the matter will be heard there.

“I have no hesitancy to interpret Section 6(a) of the Hindu Minorities and Guardians Act, 1956, to mean and intend that though a minor below five years of age may not be in physical custody of or residing with the mother, custody will be deemed to be at the place where the mother is residing. It is so held accordingly,” Justice Arun Monga asserted.

The controversy was whether the family court at Panipat had territorial jurisdiction to entertain a petition instituted by a mother to seek her daughter’s custody. The father’s claim was that the minor’s custody was with him and the family court where the minor child “ordinarily” resided would have territorial jurisdiction. In this case, the child was in her father’s physical custody at Jagadhri.

Referring to Section 6, Justice Monga asserted that there was a legal presumption with regard to natural guardianship vis-a-vis a “minor’s person” and “minor’s property” in case of a child less than five years of age and both were in favour of the mother.

Justice Monga noted that the court was persuaded with the view taken by another Bench headed by Justice Amol Rattan Singh, holding that “the custody of a child below five, especially a female child, will naturally lie with the mother and therefore, the deemed custody will be with the mother even if actual custody is with the father”.

Justice Monga observed that the respondent-mother, at the time of instituting proceedings in the family court, was the deemed natural guardian of the minor and therefore, natural custody would be presumed to be with the mother, regardless of the place where the child was actually residing physically at that time.

He said the mother was well within her right to invoke territorial jurisdiction of the family court at Panipat. Justice Monga asserted that the welfare and convenience of the child was also to be seen and as such, all possible endeavour would be made to avoid travel by the minor from Jagadhri to Panipat by not insisting on her physical presence unless essential.