Legal Question in Family Law in India

Sir,

I filed a petition for the custody of my child. At the time of filing petition, my wife was staying with me but she kept the child with her parents. After filing of petition she left her matrimonial home.

1. Can a petition filed for the custody of minor child under

� Hindu marriage and Guardianship Act, 1956

be dismissed only on the ground that it should have been filed under

� Guardian and Wards Act, 1890

2. I request you to analyze the following decision of the Distt. Court & please give your valuable advice whether petition has been dismissed:

� Due to filing of petition under Hindu marriage and Guardianship Act, 1956

Instead of Guardian and Wards Act, 1890

Or

� Petition has been dismissed purely because of �territorial jurisdiction�

3. Abstract of the decision of the court:

1. 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

2. No other point was raised before the undersigned

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


Asked on 9/13/10, 4:42 am

2 Answers from Attorneys
BHUPESH NARULA NARULA&ASSOCIATES;

The application for custody can be filed and the court cannot be technical in cases of the custody matter , it can be read under guardianship Act or may grant them the opportunity to amend the application. The judgment passed in respect of the territorial Jursidiction issue only and the applicant can file the fresh in the court having the jursidiction for the custody

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Answered on 9/13/10, 7:27 am
Vishwa Arya Arya & Co.

the custody will not where the child resides and it would be at the place where the mother of the child resides. You are claiming custody from mother and not claiming it from the child

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Answered on 9/13/10, 8:47 am


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