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Child’s custody presumed to be with mother, irrespective of residence: Punjab & Haryana HC

Team SoOLEGAL 22 Jan 2021 3:24pm

Child’s custody presumed to be with mother, irrespective of residence: Punjab & Haryana HC

In a landmark judgment, Punjab and Haryana High Court had clearly held that, if a minor child who is under 5 years of age, although he may not be residing with mother still the custody of minor would be deemed to be at a place where the mother is residing and that place must be the jurisdiction to hear the matter.

Justice Arun Monga was hearing a petition which was filed by the father of the minor child and by interpreting Section 6(a) of Hindu Minorities and Guardians Act, 1956, the Court had held that, though a minor under the age of five may not be in actual custody of or living with the mother, but still the custody shall be considered to be in the location where the mother lives.

The issue before this Court was that, whether the Family Court at Panipat has the jurisdiction to deal with the case which was initiated by the mother regarding the custody of her minor child. The petitioner that is the father of the minor child had contended that, the custody of the minor was with him and the Family Court where the minor child normally lived would have the local jurisdiction to deal with this particular case. In this situation, the girl was in the physical care of her father in Jagadhri.

By referring to Section 6 of Hindu Minorities and Guardians Act, 1956, the Court had stated that, the natural guardianship of the minor child who is less than five years remain with the mother. The Court finally had held that, at the time of the commencement of litigation in the Family Court, the mother was assumed to be the legal parent of the minor and, thus, natural custody would be deemed to be with the mother, irrespective of the location where the child actually resided physically at that time.

The Court had also held that, the safety and convenience of the child should also be seen and that, as such, any practicable attempt must be made to avoid the minor from travelling from one place to another by not insisting on his physical appearance unless it is appropriate to do so.

 



Tagged: Punjab & Haryana HC   landmark judgment   Justice Arun Monga   Hindu Minorities and Guardians Act   Family Court  
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