Base jurisdiction in custody cases on minor’s actual residence: Punjab and Haryana High Court

The Punjab and Haryana High Court has made it clear that the jurisdiction in custody cases under the Guardian and Wards Act must be based on the minor’s actual “physical” residence, rather than the mother’s presumed custody. The Division Bench of Justices Sureshwar Thakur and Sudeepti Sharma, in the process, disagreed with three previous rulings by single Benches on the matter.

The Bench asserted that the jurisdiction of a court to hear a custody matter under Section 9(1) of the Act was required to be determined by the minor’s actual location, not the statutory presumption under Section 6(a) of the Hindu Minority and Guardianship Act, 1956, which designates the mother as the custodian for children under five.

The Bench noted: “The expression ‘the place where the minor ordinarily resides’ occurring in Section 9(1) of the Guardian and Wards Act, 1890, has to be interpreted in light of the actual residence of the minor child and cannot be determined solely on the presumption of custody with the mother, as per Section 6(a) of the Hindu Minority and Guardianship Act, 1956”.

Expressing disagreement with three earlier judgments that had held otherwise, the Bench asserted that the rulings were per incuriam or characterised by lack of due regard to the law or the facts. The court ruled: “The presumption under Section 6(a) of the Hindu Minority and Guardianship Act, 1956, that the custody of a child below five years rests with the mother, is a rebuttable presumption and cannot take precedence over the jurisdictional requirement under the Guardian and Wards Act, which mandates that the court exercising jurisdiction must be where the minor ordinarily resides.”

The Bench also emphasised the necessity of considering the child’s welfare as the paramount factor in determining jurisdiction. It said Section 17 of the Guardian and Wards Act made it clear that the minor’s welfare was of paramount consideration and this included determining the child’s physical location for jurisdictional purposes.

“The welfare of the minor child, which is the guiding principle in matters of custody, cannot be compromised by adhering to a mere legal presumption. The physical and emotional well-being of the child should be of utmost importance, and this necessitates determining jurisdiction based on the child’s actual residence,” the judgment stated.

Before parting with the case, the Bench set aside Kaithal family court’s order rejecting a father’s plea raising objections regarding jurisdiction. His stand in the matter was that the minor son was residing with him in Panchkula and studying in a school there only. “We find the order dated April 24 is infirm and against the statutory provisions of law. Therefore, we set aside the same and allow the present appeal,” the court asserted.