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

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

Tejbir Singh vs Baljit Kaur

Punjab and Haryana HC

02/11/2018

CR No. 7257 of 2018

About/from the judgment:

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 Jain, 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.

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