Legal Question in Family Law in India

Your below valuable advice to my query:

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

Sir,

At the outset, I am grateful for your prompt valuable advice.

In fact at the time of filing an appeal, my wife was staying with me at her matrimonial home (evidence to prove her stay submitted in court) but she kept the child with her parents (admitted by her father during his cross examination). Despite my several requests she did not bring the child. After delivery, she along with the child stayed with me (though denied by the respondents but I submitted evidences in court to prove their stay) & later on along with the child went to her parents to join her duties.

The appeal was filed against

1 respondent no. 1- Her father

2 respondent no. 2- Her mother

3 respondent no. 3- My wife (respondent proforma)

After filing appeal, she left her matrimonial home & started living at her official accommodation in Noida (allotted after date of filing appeal). False & contradictory evidence to prove the stay of child with her at Noida were submitted by respondents through clerk of the school.

I humbly request for your advice on the following main issue, It would be highly appreciated if advice can be supported with any case laws etc.:-

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 9/14/10, 4:49 am

1 Answer from Attorneys
Vishwa Arya Arya & Co.

Dear Gentleman:

If you also admitted that the custody was with maternal grandparents of the child that is respondent 1 and 2, and respondent 3 was a proforma party. then in that case the jurisdiction would be of the place of respondent 1 and 2. The petition could be dismissed for want of jurisdiction but not for want of proper provision. the same application or petition could have been considered to be one under Guardian and ward aCt

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Answered on 9/14/10, 9:50 am


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