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2017 DIGILAW 124 (JK)

Anis Nizami v. Ishrat Fazal

2017-03-14

ALOK ARADHE

body2017
Judgment Alok Aradhe, J.—With the consent of the learned counsel for the parties, the matter is finally heard. 1. In this revision petition, the petitioners inter alia have assailed the validity of order dated 28.01.2017 passed by the Trial Court, by which the application preferred by the respondent under Section 12(1) of the Guardians and Wards Act has been allowed. 2. The facts giving rise to the filing of this petition briefly stated are that the parties got married on 16.09.2012 and out of the wedlock, one male child was born on 06.07.2013. It is the case of the respondent that she was deserted by the petitioner No. 1 in the month of June, 2016 and without her consent, petitioner No. 1 took away the custody of minor son from Jammu. The respondent thereafter filed petition under Section 25, read with Section 12 of the Guardians and Wards Act, Svt. 1977 (hereinafter referred to as the Act) seeking custody of the minor son. The Trial Court vide order dated 28.01.2017, allowed the petition preferred by the respondent and the petitioners were directed to handover the custody of the minor son to the respondent forthwith. 3. On 30.01.2017, the petitioners filed an application before the Matrimonial Court seeking 15 days’ time to handover the custody of the child, however, custody of the minor child was not handed over. Therefore, the respondent filed an application for implementation of the order dated 28.01.2017 through Sr. Superintendent of Police, Jammu. The Trial Court vide order dated 28.02.2017, directed Sr. Superintendent of Police, Jammu to ensure the compliance of Order dated 28.01.2017 and to submit report. The Sr. Superintendent of Police, Jammu on 06.03.2017, filed report before the Trial Court, in which it was stated that he visited the house of the petitioners at Jammu and learnt that the petitioners have hidden the minor child somewhere, which he is unable to trace. The petitioners, thereafter, filed an application seeking deferment of the proceedings before the Trial Court for a period of two weeks and have filed instant revision petition before this Court. 4. Learned counsel for the petitioners submitted that the child is residing with his father at Banihal in Ramban District, therefore, the Trial Court at Jammu has no territorial jurisdiction to pass the impugned order. 4. Learned counsel for the petitioners submitted that the child is residing with his father at Banihal in Ramban District, therefore, the Trial Court at Jammu has no territorial jurisdiction to pass the impugned order. It is further submitted that Section 12 of the Act can be invoked only in respect of the proceedings initiated under Chaper II of the Act. It is further submitted that application, which has been filed by the respondent under section 25 of the Act, falls under Chapter-III of the Act, therefore, the trial court has no power to pass the interim order. It is further submitted that the averments that the child was taken away forcibly has not been rebutted, is factually incorrect. It is further submitted that in the fact situation of the case, interest of minor would be well served if he is allowed to remain with the petitioner No. 1. In support of his submissions, learned counsel for the petitioners refers to the decisions of the Supreme Court and High Courts in the cases of Smt. Narbada vs. Sita Ram, AIR 1998 Rajasthan 113, Pooja Badhadur vs. Uday Bahadur, AIR 1999 SC 1741 , Harshadbhai Zinabhai Desai vs. Bhavnaben Harshadbhai Desai, AIR 2003 Gujarat 74 and Roxann Sharma vs. Arun Sharma, AIR 2008 SC 2262 . 5. On the other hand, learned senior counsel for the respondent submitted that from the perusal of the pleadings, it is evident that the petitioners and respondent are residents of Jammu and the petitioner No. 1 himself is residing at Jammu, which is evident from the report submitted by the Senior Superintendent of Police, Jammu. It is also submitted that the custody of the minor has been taken from the mother from Jammu and, therefore, the Trial Court has a jurisdiction to pass the order. It is further submitted that Section 12 of the Act is independent provision, therefore, the submission that aforesaid provision is applicable to the proceeding under chapter–II of the Act, is misconceived. It is further submitted that the respondent being mother is the natural guardian of the minor child, who is aged about four years. Learned senior counsel for the respondent fairly submitted that the respondent has no objection, if the petitioner No.1 is given visitation right. 6. I have considered the submissions made by the learned counsel for the parties and have perused the record. Learned senior counsel for the respondent fairly submitted that the respondent has no objection, if the petitioner No.1 is given visitation right. 6. I have considered the submissions made by the learned counsel for the parties and have perused the record. It is well settled in law that the welfare of the minor child is of paramount importance while deciding the issue pertaining to the custody of the child. A heavy duty is cast upon the Court to exercise its judicial discretion in the background of relevant facts and circumstances bearing in mind the welfare of the child. Though the better financial resources either of the parent may be one of the relevant considerations but it cannot be the sole determining factor for the custody of the child. See (2008) 7 SCC 673 , Mausami Maitra Ganguli vs. Jayant Ganguli. Similarly, in Roxann Sharma vs. Arun Sharma, AIR 2015 SC 2232 , the Supreme Court has held that the custody of an infant should ordinarily be with the mother and the order giving interim custody to father on the ground that the mother has not established her suitability to be granted interim custody of the infant, was disapproved by the Supreme Court. 7. In Halsbury’s Laws of England (Fourth Edition, Vol.13), the law pertaining to the custody and maintenance of children has been succinctly stated in the following terms: “809. Principles as to custody and upbringing of minors. Where in any proceedings before any court, the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other.” 8. In the backdrop of the aforesaid well settled legal position, the facts of the case may be seen. In the backdrop of the aforesaid well settled legal position, the facts of the case may be seen. The question of territorial jurisdiction is a mixed question of law and fact, which can be decided by the trial court only after recording the evidence. From the perusal of the pleadings made by the petitioners, prima facie, it appears that the child was taken away from the custody of the mother from Jammu. This aspect is also evident from the report of the Sr. Superintendent of Police, Jammu. A Bench of this Court in the case of Mukhtar Ahmed Bhat vs. Nighat Parveen, 2009 (i) JKJ 72, has held that ordinary residence of the mother is to be treated with the person who by law has the custody and care of the ward, so the jurisdiction for entertaining the application for custody of the ward lies with the District Court, where the person, in whose custody and care ward remains by law. In the instant case, prima facie the parents of the minor child were resident of Jammu and from Jammu the minor was taken to Banihal. Therefore, prima facie, it cannot be said that the Court at Jammu has no territorial jurisdiction to entertain the application. However, as is stated supra, the aforesaid issue is required to be dealt with on merits by the Trial Court after recording the evidence. 9. Section 12 of the Act is an independent provision and is not confined to proceeding under chapter II of the Act. Even otherwise also, in absence of any specific power, authority has power to grant the ancillary or interim order. See Income Tax Officer vs. M. K. Mohammad Kunhi, AIR 1969 SC 430 . Therefore, the aforesaid submission does not deserve acceptance. 10. The child is admittedly minor and has completed three years on 06.07.2016. The parents of the minor reside at Jammu. The mother of the minor, who is a Doctor is in a position to take care of the welfare of the minor and the education facility at Jammu are much better than at Banihal. Presently the petitioner No. 1, namely, father is residing at Jammu, whereas the child is at Banihal. The mother of the child is at Jammu and she being natural guardian, it is in the interest of the minor that the custody of the minor is given to his mother. Presently the petitioner No. 1, namely, father is residing at Jammu, whereas the child is at Banihal. The mother of the child is at Jammu and she being natural guardian, it is in the interest of the minor that the custody of the minor is given to his mother. Therefore, I do not find any infirmity in the impugned order passed by the Trial Court. Needless to say that the petitioner No. 1 being father shall have a right to visit and meet the child. He shall visit and meet the child on second Sunday of every month between 10 A.M. to 1.00 P.M. The petitioner No. 1 is directed to handover the custody of the child to respondent forthwith. 11. With the aforesaid directions, the revision petition is disposed of.