Legal Question in Family Law in

Sir,

At the outset, I am really obliged that you are giving m every valuable advise & it is giving me great relief to decide further legal remedies available to get justice. Despite sufficient evidences available, my advocate has not properly argued my case in High court & my second appeal has also been dismissied.

All the courts have only relied merely on the false & contradictory statements of the respondents & have ignored the facts & evidences submitted by me to support all the points raised in my petition / appeal.

All the respondents are trying to prove that after birth of my son my wife & child never stayed with me but I have produced all evidence to prove that both of them stayed with me.

I want to prove that courts have ignored my evidences & without any evidence, decided that my wife & child never stayed with me. I also want to prove that court has merely relied on the contradictory statements / evidences of the respondents & ignored the factual position & evidences submitted by the petitioner.

Since we are not divorced & are husband & wife, based on the my evidence, I want to get the custody of my child who is being kept away from me without my consent

Brief facts:

My wife & myself both have been divorced once & this is our second marriage. She divorced after 2 months where as I was divorced after (15-16 years) with mutual consent.

We both are working; her job is transferable whereas I am staying & working at Faridabad. Before filing the petition she was posted at Ludhiana & was residing with her parents at Chandigarh & daily commuting for her duties between Chandigarh & Ludhiana. I am staying with my parents (house is in my father�s name). In 2000, when she was pregnant, came back to me (her matrimonial home). During her stay with me all treatment was given to her in the prestigious hospital. As their customs, for her Ist delivery, her parents took her to their home at Chandigarh. Without informing me, they brought her back to Delhi for the delivery & due to long journey / fatigue, on the same day she gave birth to a pre-matured son. After being informed, I took all care during their stay at hospital.

After discharge, she again went with her parents & after few days came to me along with child�

After delivery, for 2-3 months, she along with son stayed at my home & during this period all treatment were given to my son (evidences submitted in court) & his namkaran ceremony was also performed at our home (evidences submitted- photos). The name of child is also appearing on the cash receipt of hospital (submitted in court)

After 2-3 months she went back to her parents along with child & joined her duties & despite my several requests did not join me.

After two years, in June 2002, she was transferred to Delhi & all of sudden without any pre-intimation came back to me (at her matrimonial house) without the minor child & joined her duties at Delhi. She stayed with me for 3 months without the child. Despite my requests she did not bring child & kept with her parents.

In Aug 2002, petition was filed by me & after that she again left her matrimonial home & started living in her official accommodation allotted in Aug 2002. She produced evidence to prove the admission of child in a school at Noida in 2004 ( 2 years after filing of the petition). The evidence of admission at Noida are false & fabricated which have been proved by my advocate. The name of father & mother has not been mentioned in the receipts. The name of the child is contradicting with the affidavit & admission dates etc. as per records produced by the clerk of the school are also contradictory.

Without appreciating all the evidence submitted by me, the petition has been dismissed by the district court merely on the basis of statements of respondent no 1 (father of my wife) as evidence of respondent no. 3 (my wife) have not been considered by the court.

Petitioner- My self

Respondent no. 1&2- Parents of my wife

Respondent no. 3- my wife

I filed a petition for custody of my son under Hindu minority and guardianship act 1956 instead of under guardian & wards act 1890.

1. The petition has been dismissed by the lower court with the contradictory decision:-

�It is PROVED that the minor child is studying at Noida and is LIVING with her mother IN NEW DELHI

In the present case, it is NOT PROVED that the minor is residing IN NEW DELHI

Therefore, it is concluded that the petition filed by the petitioner in this court is NOT MAINTAINABLE.�

2. Application for rectification for contradictory decision was filed, without any change in the evidence already available with the court, the lower court, changed the place from New Delhi to Noida but final decision remained unchanged:-

�It is PROVED that the minor child is studying at Noida and is LIVING with her mother IN NOIDA

In the present case, it is PROVED that the minor is residing IN NOIDA

Therefore, it is concluded that the petition filed by the petitioner in this court is NOT MAINTAINABLE.�

3. An appeal against the impugned order was filed & the Distt. Court & The

Court decided:-

�On the pleadings of the parties, following issues have been settled for adjudication on 28.11.02:

1. Whether the petitioner is entitled to get custody of minor child namely Jishnu from the respondent on the grounds taken in the petition? OPP.

2. Whether the petition is not maintainable in the present form ? OPR

3. Relief

a) To prove their respective cases-----------; the respondent no. 3 examined herself as RW2 and deposed through her affidavit Ex.RW2 /A on 01.02.2005 but her cross-examination was deferred on the request of learned counsel for the petitioner (not correct) and was never completed. Though the respondent closed their evidence on 9.11.2006. Thus, as per the settled preposition of law, the statement of RW2 can not be read in evidence as the petitioner could not get the opportunity to cross-examine her.

b) As regarding the territorial jurisdiction of this court admittedly, the minor is living in Noida with his mother respondent no. 3 and is a student. In fact, he along with his mother is not living in Faridabad practically since his birth in Delhi as stay of the mother and the child is disputed. Even the petitioner himself has alleged that minor child is living at Chandigarh with respondents no. 1 & 2, the maternal grandparents and sought the custody on this very ground that respondent no. 3 is not taking due care and welfare of the child which however, found to be incorrect in issue no. 1 above. Thus, as the minor son Jishnu is not Ordinarily resides at Faridabad, the District Court at Faridabad has no territorial jurisdiction to try this petition under provisions of section 9 of the Guardian and Wards Act, 1890 which is supplement to the Hindu marriage and Guardianship Act, 1956 and the learned Lower court has validly decided issue no. 2 in favor of the respondent

c) No other point was raised before the undersigned

d) Consequently, the appeal has no merits, It fails and stands dismissed.

4. I also filed an appeal in High Court against impugned order of the Distt. Court which has been dismissed. The advocate could not properly plead the case before the judge (order is awaited). The judge asked his views on the decision of Distt. Court regarding �Territorial Jurisdiction� but again he could not properly argue the case despite the facts that sufficient evidence are available on records to prove:

a) After the birth of child- Stay of respondent no. 3 (my wife) along with child with the petitioner (treatment record of the child, photographs of Namkarans etc. (more than 100 photo) of the child etc. submitted in court)

b) After her transfer at Delhi- Stay of respondent no 3 without child at petitioner�s house (her medical treatment submitted in court)

c) Admitted by respondent no. 1- After her transfer at Delhi, child was staying with them at Chandigarh.

d) No evidences have been produced by any respondents to prove that during June 2002 to Aug 2002 respondent no. 3 (my wife) was not staying with the me (petitioner)

e) Whereas Petitioner has submitted evidence to prove at the time of filing appeal in Aug 2002, the respondent no. 3 was staying with the petitioner without the minor child

f) Admitted by respondents, that she was allotted official accommodation in Aug 2002 only.

g) False & fabricated evidences have been submitted by respondents to prove the stay & admission of child at Noida in 2004 (petition was filed in 2002)

h) There is also no consensus between the counsel of the respondent & the respondents as they have stated :

I. Counsel: The child is living in Delhi

II. Respondent no. 3- Child is living with her at Noida

III. Respondent no. 1- In affidavit & his written statement- At Noida

But during his cross examination admitted- after the transfer of respondent no. 3 , child was staying with them

Without considering the evidences submitted by me, all the courts have just relied merely on the contradictory statements of the respondents.

a) Subsequently, the distt. Court in its order decided that The statement of RW2 (respondent no. 3) cannot be read as evidence as the petitioner could not get the opportunity to cross-examine her

b) Since the statement of Respondent no. 3 cannot be read as evidence & no additional evidence has been produced by respondent no. 1. He has only referred the evidences submitted by respondent no. 3

c) Hence the issue has been decided only on the affidavit / statement of resp. no. 1,

Abstract of lower Court�s order

Issue No.

12. The onus to prove this issue is on the respondents and they are to prove that the petition is not maintainable in the present form. Learned counsel for the respondent has argued that the present petition has been filed by the petitioner under Hindu Minority & Guardianship ACT where as petition for the custody for the minor should have been filed under the provisions of Guardianship and wards Act in the jurisdiction of the court in which the minor resides.

He has contended that the minor is residing at Delhi and therefore, present petition is not maintainable.

On the other hand, learned counsel for the petitioner has argued that after marriage, petitioner and respondent resides at Faridabad and the respondent no. 3 conceived at Faridabad.

He has contended that respondent no. 3 had gone to her parents for the delivery and after delivery, she had returned to Faridabad along with child .

He has contended that the minor child is permanent resident of Faridabd and therefore, petition at Faridabad is maintainable.

Abstract of Distt. Court�s order

12. As regarding the territorial jurisdiction of this court admittedly, the minor is living in Noida with his mother respondent no. 3 and is a student. In fact, he along with his mother is not living in Faridabad practically since his birth in Delhi as stay of the mother and the child is disputed. Even the petitioner himself has alleged that minor child is living at Chandigarh with respondents no. 1 & 2, the maternal grandparents and sought the custody on this very ground that respondent no. 3 is not taking due care and welfare of the child which however, found to be incorrect in issue no. 1 above. Thus, as the minor son Jishnu is not Ordinarily resides at Faridabad, the District Court at Faridabad has no territorial jurisdiction to try this petition under provisions of section 9 of the Guardian and Wards Act, 1890 which is supplement to the Hindu marriage and Guardianship Act, 1956 and the learned Lower court has validly decided issue no. 2 in favor of the respondent

Abstract of High Court�s order

The plaintiff is in second appeal. Both the courts below have dismissed petition / suit of the plaintiff in which he had sought custody of minor namely, Jishnu under the provisions of Hindu Minority & Guardianship Act 1956 (for short �the Act�)

De hors the findings recorded by the courts below on the issues no. 1&2 has been decided against the plaintiff concurrently to the effect that the petition / suit filed by the plaintiff was not maintainable.

It was held that the minor is studying at Noida and is living with her mother in New Delhi,therefore, the Courts at Faridabad had no jurisdiction and the petition / suit was not maintainable.

The plaintiff has only challenged finding on issue no. 1 and not touched finding on issue no. 2 which is apparent even in which question pertaining to law framed in the memo of appeal in which question pertaining to finding on issue no. 2 is conspicuous by its absence.

In fact learned counsel for the plaintiff has failed to raise any argument much less meaininful against the finding recorded by both the courts below on issue no. 2. Hence no substantial questuin of law envisaged under Section 100 of the Code of Civil procedure, 1908 is involved in this appeal to reverse the finding recorded by the Courts below on Issue no. 2 by which the petition / suit of the plaintiff has been dismissed as not maintainable.

In view of the same is hereby above, I do not find any merit in the present appeal and the same is hereby dismissed.

13. It is admitted that the minor child was born at Delhi. It is proved that the minor child is studying at Noida and is living with her mother in Noida (New Delhi).

Section 9 of Guardianship and wards Act provides that a petition for the custody of the minor child can be filed in the court in whose jurisdiction the minor child ordinarily resides. In the present case, it is proved that the minor is residing in Noida (New Delhi).

Therefore, it is concluded that the petition filed by the petitioner in this court is not maintainable.

13. No other point was raised before the undersigned.

14. Issue no. 3 (Relief)

In view of my decision on the above issues, the present petition is dismissed with costs

14. Consequently, the appeal has no merits. It fails and stand dismissed.

Our Comments

1. Whether the petition has been dismissed purely on the basis of filing of petition under :

� Hindu marriage and Guardianship Act, 1956, instead of

� Guardian and Wards Act, 1890

2. Thus, as the minor son Jishnu is not Ordinarily resides at Faridabad, the District Court at Faridabad has no territorial jurisdiction to try this petition

� If the minor child would have been residing at Faridabad or proved, then

� Whether court would have decided issue no. 2 in favor of the petitioner?

� Whether the wording of the above judgment it can be concluded that even if petition has been filed under

 Hindu marriage and Guardianship Act, 1956, instead of

 Guardian and Wards Act, 1890

If it is proved child Ordinarily resides at Faridabad

Then can issue be decided in favor of the petitioner keeping in view the wording of the judgment?

�Thus, as the minor son Jishnu is not Ordinarily resides at Faridabad, the District Court at Faridabad has no territorial jurisdiction to try this petition under provisions of section 9 of the Guardian and Wards Act, 1890 which is supplement to the Hindu marriage and Guardianship Act, 1956�

Our Comments

1. High court wrongly mentioned- �It was held that the minor is studying at Noida and is living with her mother in New Delhi�

2. Whereas, Civil court in the judgment held-�In the present case, it is proved that the minor is residing in Noida� (New Delhi).

3. Point of territorial Jurisdiction has been raised in our appeal at s.no. 3

4. No decision on our prayer:

It is further prayed that during the pendency of the present petition, the appellant may kindly be granted visiting rights to meet his son, who is presently in the custody of the respondent no.3, in the interest of justice.

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