Source:barandbench.com<\/p>\n\n\n\n
The Delhi High Court has held that the claim of a mother under Section 6<\/strong> of the Hindu Minority and Guardianship Act, 1956 <\/em>as the natural guardian of a minor cannot be used to decide the jurisdiction of the Family Court under Section 9<\/strong> of the Guardians and Wards Act, 1890<\/em>.<\/p>\n\n\n\n The judgment was passed by a Division Bench of Justices GS Sistani<\/strong> and Jyoti Singh<\/strong> in an appeal under Section 19 (1)<\/em> of the Family Courts Act, 1984<\/em>\n for setting aside a Family Court\u2019s judgment. The Family Court had \ndismissed the appellant mother\u2019s plea seeking guardianship of her two \nminor children.<\/p>\n\n\n\n Civil marriage was performed between the\n appellant and the respondent-father in the USA in August 2006. \nSubsequently, in December 2007, the marriage was solemnized at New \nDelhi.<\/p>\n\n\n\n The appellant alleged that she faced \nimmense hostility from the respondent and his family on several \ngrounds. She claimed that the respondent was an absentee husband and did\n not give her any love or support. Subsequently, a baby girl was born \nout of the marriage in August 2012 in the USA. The child was a US \ncitizen.<\/p>\n\n\n\n Marital discord between the parties \ncontinued even after the birth of the child. Meanwhile, in March 2013, \nthe appellant also became an American citizen.<\/p>\n\n\n\n In January 2016, the appellant travelled\n to India for the marriage of her brother and decided to settle down in \nIndia permanently. She then discovered that she was expecting a second \nchild. When the respondent also travelled to India for the wedding, the \nappellant informed her husband that she would like to permanently settle\n in India.<\/p>\n\n\n\n Thereafter, in June 2016, the respondent\n filed an application in the US County Court at Stamford, Connecticut \nseeking temporary and permanent custody of the minor daughter and the \nunborn son.<\/p>\n\n\n\n In September 2016, a baby boy was born. \nThe appellant alleged that between September 2016 and November 2016, the\n respondent kept harassing her over phone calls and text messages, \nthreatening that he would take the children away.<\/p>\n\n\n\n In November 2016, the appellant sent a legal notice to the respondent seeking maintenance under Section 125<\/strong> CrPC read with Section 18(1)(b)<\/strong> of Hindu Adoption and Maintenance Act, 1956<\/em>.<\/p>\n\n\n\n She also filed a guardianship petition under Sections 7, 9, 11<\/strong> and 25<\/strong> of the Guardians and Wards Act, 1890<\/em> read with Section 6(a)<\/strong> of the Hindu Minority and Guardianship Act, 1956<\/em> and Section 7(g)<\/strong> of the Family Courts Act.<\/em><\/p>\n\n\n\n Meanwhile, the American court granted temporary custody of the children to the respondent, ex-parte<\/em>.\n Later, the Superior Court of the State of Connecticut granted sole \nphysical and legal custody of the children to the respondent with \nsupervised visitation rights to the appellant mother.<\/p>\n\n\n\n The Family Court also dismissed the \nguardianship petition on the ground of lack of territorial jurisdiction.\n The matter thereafter reached the Supreme Court, which remanded it to \nthe Family Court after observing that the welfare of the child was \nparamount and the same could not be the subject matter of final \ndetermination in proceedings under Order VII Rule 11 CPC.<\/p>\n\n\n\n Meanwhile, the respondent had also moved\n a writ of habeas corpus before the Delhi High Court. While allowing the\n writ petition, the Court directed the appellant to return to the USA \nwith the respondent and the children subject to certain conditions to \nsecure the rights of the appellant. The conditions were accepted and \nincorporated by the American court in its order.<\/p>\n\n\n\n After the Supreme Court\u2019s order, the \ntrial in the guardianship petition commenced. The petition was dismissed\n once more on the ground that it lacked territorial jurisdiction. While \nopining that the children should be with both parents in the USA, the \nFamily Court also observed that the residence of the children was \nillegal.<\/p>\n\n\n\n This order became the subject matter of the present appeal.<\/p>\n\n\n\n The appellant contended that the Family \nCourt failed to appreciate Section 9 of the Guardians and Wards Act, \n1890 in its correct perspective as the phrase \u201cordinary resident\u201d was a \nmatter of intention. It was submitted that the Court overlooked the \nfact that the second child was born in India.<\/p>\n\n\n\n She thus pleaded that the son being born\n in India qualified as an \u201cordinary resident\u201d of India. Also, since the \ndaughter was in her mother\u2019s legal custody and her \u201cordinary resident\u201d \nstatus would follow the appellant\u2019s ordinary residence i.e. Delhi, \nIndia.<\/p>\n\n\n\n It was submitted that the citizenship of\n the parties and their children was irrelevant and the same was not \nrelated to being a resident. A citizen of one country could thus be an \nordinary resident anywhere in the world.<\/p>\n\n\n\n It was also argued that the Family Court\n failed to appreciate the statutory presumption in favour of the mother \nunder Section 6 of the Hindu Minority & Guardianship Act, which \nprovides that custody of a child below five years of age is ordinarily \nbelongs to the mother.<\/p>\n\n\n\n The appellant also informed the Court \nthat she wanted to stay in India and to give up her USA citizenship. She\n has already applied for Indian citizenship and taken an oath of \nallegiance towards the Indian Constitution.<\/p>\n\n\n\n Invoking the legal doctrines of tender years and matrimonial preferences, the appellant thus sought the custody of her children.<\/p>\n\n\n\n After hearing the parties, the Court \nnoted that as on date, the appellant was enjoying her OCI status along \nwith her American passport, which was valid till 2023. She had not moved\n any application before the US court for renouncing her American \ncitizenship and had not applied for Indian citizenship at the time of \nthe trial before the Family Court.<\/p>\n\n\n\n It was further noted that while the \npassport of the minor girl had expired in October 2017 and her OCI \nstatus had also expired, the baby boy was also not an Indian citizen, \nand did not have any passport or OCI in his favour as yet.<\/p>\n\n\n\n While deciding on the issue of the interplay between Section 9 of Guardians and Wards Act<\/em>\n and Section 6 of Hindu Minority & Guardianship Act, the Court \nobserved that the two Sections operated in different fields, independent\n of each other.<\/p>\n\n\n\n \u201cWhile Section 6\n deals with natural guardian of a Hindu Minor, Section 9 lays down the \nrules with respect to territorial jurisdiction of the Court in which the\n application for custody of the child has to be filed.\u201d<\/em><\/p>\n\n\n\n It stated that Section 9 only dealt with\n the territorial jurisdiction of the court and to decide the \njurisdiction, what was to be considered was the \u201cordinary residence of \nthe child\u201d.<\/p>\n\n\n\n Once the question of jurisdiction is \nsettled, it is open for a mother to place reliance on Section 6 in a \ncase where the child is below five years of age, it added.<\/p>\n\n\n\n However, the argument that the claim of \nthe mother under Section 6 should be used to decide the jurisdiction of \nthe Court under Section 9 cannot be accepted, the Court held.<\/p>\n\n\n\n “…therefore, \nwe reject the contention of the appellant that the provisions of Section\n 6 will control the jurisdiction of the Court and since the younger \nchild is below five years of age and is in the custody of the appellant \nat New Delhi, the courts at Delhi will have the jurisdiction.\u201d<\/em><\/p>\n\n\n\n Rejecting the argument that the \nappellant and her children were ordinary residents of Delhi, the Court \nstated that a very careful examination of the facts indicated that the \nparties always intended to make USA their home.<\/p>\n\n\n\n In view of these facts, the Court held \nthat the courts at Delhi would not have jurisdiction to entertain the \npetition filed by the appellant in view of Section 9 of the GWA.<\/p>\n\n\n\n The Court then proceeded to determine \u201cwhat is the best interest and welfare of the two minor children<\/em>\u201d.<\/p>\n\n\n\n Relying on judgments passed by the Supreme Court, the provisions of the Juvenile Justice Act,<\/em>\n as well as the Convention on the Rights of the Child, the Court \nconcluded that the best scenario for the child would normally be living \nwith both the parents in a happy, loving and caring environment.<\/p>\n\n\n\n The Court noted that both the parents \nacquired American citizenship and worked jointly as dentists till 2016 \nand had acquainted themselves with the systems and the environment of \nthat country. It thus held that the welfare of the children lied with \nboth the parents and in shared parenting in America.<\/p>\n\n\n\n \u201cThe two \nchildren are, thus, entitled to, as a matter of right, all the \nprivileges, security, both social and financial, in America. At the age \nin which the two children are, we do not think that it would be \ndifficult for them to get accustomed to the life and environment at \nAmerica..<\/em><\/p>\n\n\n\n …we are \ndealing with an appellant who is highly educated and chose to live in \nAmerica to give herself the best in life. We see no reason why we should\n deprive the children of good education, good environment, good medical \ncare and the joint love of both parents.\u201d<\/em><\/p>\n\n\n\n The Court also recorded that the \nappellant had not been able to place on record any material to infer \nthat the respondent would have an adverse influence on the minor \nchildren.<\/p>\n\n\n\n It further observed,<\/p>\n\n\n\n \u201cWhile we have \nno doubts in our mind that the mother is a primary care giver, but we \ncannot also shut our eyes to the fact that even the father can \ncontribute a lot to the upbringing of a child and, in fact, the love, \naffection, guidance and moral support of a father is extremely important\n in shaping the life of the children. Thus, the requirement of the \nrespondent in the lives of the children, in our view, is, if not more, \nequally important for the holistic growth of the children. Paramount \nconsideration being the crucial factor, we hold that the welfare of the \nchildren lies with both the parents and in shared parenting.\u201d<\/em><\/p>\n\n\n\n The Court stated that if the appellant \ngoes to the USA, the court of competent jurisdiction there would decide \nthe issue of guardianship and custody as per law and keeping in mind the\n welfare of the children.<\/p>\n