Whether custody of infant child should be given to father?

The HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the livelihood of the welfare and interest of the child being undermined or jeopardised if the custody retained by the mother. Section 6(a) of HMG Act, therefore, preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person whilst the child is less than five years old. It carves out the exception of interim custody, in contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age. We must immediately clarify that this Section or for that matter any other provision including those contained in the G&W Act, does not disqualify the mother to custody of the child even after the latter's crossing the age of five years.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1966 of 2015 

Decided On: 17.02.2015

 Roxann Sharma Vs.  Arun Sharma

Hon'ble Judges/Coram:

Vikramajit Sen and C. Nagappan, JJ.

Citation: AIR 2015 SC 2232

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Whether working mother can be denied custody of child born through surrogacy?

In our view, the professional and social obligations and activities of
the mother need not necessarily have an adverse impact on the upbringing
and safety of the minor child. In today‟s day and age, women are actively
pursuing their professions and avocations. They are also socializing as their
peers, friends, family and colleagues. That does not mean that they are
necessarily failing in performance of their maternal obligations. In fact,
working women are, by and large, having to put in extra time and effort to
keep both ends up, and they are doing it successfully. The child is an infant.
At this age, the child has little understanding of the actions and conduct of
the parents, particularly, those acts and conduct which take place outside the
child‟s environment.
 IN THE HIGH COURT OF DELHI AT NEW DELHI
 Judgment delivered on: 01.05.2018
W.P.(CRL) 357/2018

KIRAN LOHIA  Vs THE STATE GOVT OF NCT OF DELHI & ORS 
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE P.S.TEJI

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Whether court should decide issue of custody/visitation rights of minor children on basis of consent of parties?

Thus, it follows that the issue of custody of minor children cannot be decided by the Courts dealing with Petitions under the said Act or Petitions dealing with custody/visitation rights of children only on the basis of consensus or consent of the parties. Even under Rule 3 of Order XXIII of the Civil Procedure Code, 1908, a compromise can be recorded provided it is otherwise legal and is not against the public policy. In a case where contesting parties to a Petition under the said Act or under any other Enactment place compromise on record dealing with custody and visitation rights in relation to minors, the Court cannot the accept compromise mechanically. Before accepting the compromise and permitting parties to act upon the compromise, the Court has to apply its mind to the well settled law. What is paramount is what is conducive to the welfare of the children. Therefore, it is the duty of the Court to consider whether the compromise is for the welfare of the children. As stated earlier, the consent of the parties and even the personal law dealing with the issue of custody of children cannot and must not supersede paramount considerations laid down under Section 17 of the said Act. The Court has to be very cautious especially when parties by consent agree to disturb the custody of the children.

IN THE HIGH COURT OF BOMBAY

Family Court Appeal No. 76 of 2016

Decided On: 08.12.2016

Appellants: "A"

Vs.

Respondent: "B"

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Anuja Prabhudessai, JJ.

Citation: 2017(6) MHLJ 134

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Under which circumstances court can deny custody of the child to the mother?

The net result of foregoing discussions goes to show

that Ms.Janhavi was found to be hurt and injured on 28th January

2017 and 18th February 2017 when her medical examination was

done by the competent Medical Officer.   It is averment of her

father   that   the   respondent­mother   is   the   cause   behind   those

wounds.  There is duly sworn testimony to this effect on record.

As against this, it is the contention of the respondent­mother that

Ms.Janhavi was not in her custody on those two dates and she has

not wounded Ms.Janhavi.  Be that as it may, but the case in hand

appears   to   be   a   clear   case   of   a   child   abuse.     I   have   already

mentioned   that   welfare   of   a   child   is   paramount   consideration

while deciding the issue regarding the custody of a minor child.  In

the case in hand, Ms.Janhavi is seen to have been traumatized and

physically injured not once but on two occasions in the process of

giving access.   Report of her psychological evaluation done by a

competent disinterested Child Psychologist will give some clue, as

to who was the author of wounds suffered by Ms.Janhavi and the

reason of her apprehension and reluctance to join company of her

mother.  Ms.Janhavi, since her birth, is undoubtedly in custody of

her father­the petitioner.   As such, looking to the aspect of her

safety and wellbeing, she needs to be continued in his custody till

her psychological evaluation by the expert Child Psychologist for

ascertaining her behavioral issues and issue of a child abuse.  The

respondent­mother is objecting appointment of Child Psychologists

from the list given by the petitioner­father.  Her learned Advocate

states that by tomorrow, he will submit another list of expert Child

Psychologists for consideration of this Court.   Keeping in mind

welfare of minor female child Ms.Janhavi, I proceed to pass the

following order as an interim measure :

(i) Until   further   order,   impugned   order   dated   25th  April

2017 passed by the learned Family Court, Mumbai so far

as   relates   to   granting   access   of   Ms.Janhavi   to   the

respondent/mother for the period from 29th May 2017 to

3 rd June 2017 is stayed.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.5700 OF 2017

Anirudha Herwadkar V/s. Namita Herwadkar 

CORAM : A.M.BADAR J.

DATED : 29th May 2017.

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Whether family court has jurisdiction to decide custody of minor children who are living abroad ordinarily?

The Family Court has referred to Section 9 of the Guardians and Wards Act, 1890. On reading of the Section, it can be noticed that the application must be presented before the Court having jurisdiction in the place where the minor ordinarily resides. The word ‘ordinarily’ has got such a meaning that it rules out temporary residence of the children. In this case, the children were born at Doha Qatar and are pursuing their studies at that place only. If they had come to Belgaum at the time when the marriage between the appellant and the 1st respondent was dissolved, it does not mean that they are ordinarily residents of Belgaum. This being the position, it has to be now said that the Family Court has rightly held that it has no jurisdiction to entertain the petition. 

In the High Court of Karnataka at Dharwad

(Before Raghvendra S. Chauhan and Sreenivas Harish Kumar, JJ.)

Dr. Mrs. Mashmoom, v. Mr. Sajid, S

Miscellaneous First Appeal No. 22302/2013 (G & WC)

Decided on December 14, 2016

The Judgment of the Court was delivered by

Citation: 2016 SCC OnLine Kar 7559

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When magistrate should give interim custody of child relying on affidavit?

In the present case, it is specifically averred in the application filed under section 12 of the P.W.D.V. Act that while the opposite party was in deep sleep, the petitioner got control of the child forcibly as she was in a sleeping state and went out of the hotel very politely and in a casual manner so that nobody in the hotel would ever smell/suspect his foul play and criminal act. The CCTV Camera footage of the hotel according to the opposite party confirms her averments that the petitioner had parted with the sleeping child around 7.40 a.m. An FIR has also been lodged under section 363 of the Indian Penal Code against the petitioner. Whether the criminal proceeding against the petitioner who is the father and natural guardian of the girl child for an offence of kidnapping is maintainable or not is a complete different matter but it can be said that on the basis of the averments made in the application supported by affidavit coupled with the domestic incident report which was called for by the Magistrate, it prima facie appears that the petitioner has committed an act of domestic violence on the opposite party and the manner in which the girl child of less than five years was allegedly separated from her mother, I am of the view that considering the welfare of the child, the learned Magistrate has rightly passed the ex parte interim order of granting interim custody of the girl child in favour of the opposite party. The petitioner is at liberty to establish before the Magistrate at appropriate stage that the psychological disorder of the opposite party, if any, is of such a nature that it would be harmful for the girl child to stay in the company of the opposite party. The Magistrate can duly consider the same and give his findings thereon at the time disposal of the application under sections 25(2) and 12 of the P.W.D.V. Act filed by the petitioner and the opposite party respectively.

In the High Court of Orissa at Cuttack

(Before S.K. Sahoo, J.)

Vinay Gupta 

v.

Saveri Nayak 

CRLREV No. 635 of 2016

Decided on November 28, 2016

Citation:2016 SCC OnLine Ori 862

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How to ascertain territorial jurisdiction of court for deciding custody dispute of child?

The meaning of the word 'ordinarily resides' signifies dwelling in

a place continuously for a certain period. Therefore, ordinary residence is

something more than a temporary residence and it can be the ordinary

residence of the parents in a case of themselves residing together or of

either the parents as well in a situation when both parents are living apart.

The Apex Court in Rosy Jacob v. Jacob Chakramakkal[(1973) 1 SCC

840] held that the controlling consideration governing the custody of the

children is the welfare of the children and not the right of the parents. The

dictum in Hareendran Pillai v. Pushpalatha [2007(1) KLJ 842] is to the


effect that when parties have permanent residence within the jurisdiction of

a particular Family Court, that court can be taken to have jurisdiction to

entertain a petition for custody.

       12. In Jajabhai v. Pathankhan [(1970) 2 SCC 717] the Apex Court

held that where the mother and father had fallen out and were living

separately and the minor daughter was under the care and protection of

her mother, the mother could be considered as the natural guardian of the

minor girl.

       13.    The dictum of the Apex Court in Smt.Jeewanti Pandey v.

Kishan Chandra Pandey [AIR 1982 SC 3] is contextually relevant and is

extracted hereinbelow:-

        "In order to give jurisdiction on the ground of 'residence',
        something more than a temporary stay is required. It must be
        more or less of a permanent character, and of such a nature
        that the Court in which the respondent is sued, is his natural
        forum. The word 'reside' is by no means free from all ambiguity
        and is capable of a variety of meanings according to the
        circumstances to which it is made applicable and the context in
        which it is found.      It is capable of being understood in its
        ordinary sense of having one's own dwelling permanently, as
        well as in its extended sense. In its ordinary sense residence is
        more or less of a permanent character.           The expression
        'resides' means to make an abode for a considerable time; to
        dwell permanently or for a length of time; to have a settled
        abode for a time. It is the place where a person has a fixed
        home or abode. In Webster's Dictionary, 'to reside' has been
        defined as meaning 'to dwell permanently or for any length of
        time', and words like 'dwelling place' or 'abode' are held to be
        synonymous. Where there is such fixed home or such abode at


         one place the person cannot be said to reside at any other
         place where he had gone on a casual or temporary visit, e.g. for
         health or business or for a change. If a person lives with his
         wife and children, in an established home, his legal and actual
         place of residence is the same. If a person has no established
         home and is compelled to live in hotels, boarding houses or
         houses of others, his actual and physical habitation is the place
         where he actually or personally resides."

A Division Bench of this Court in Vasu.V. and others v. Muralidharan and

others [2009(1) KHC 443(DB)] in a case wherein the father of a minor girl

child aged 10 years, whose wife was no more, and the child was pursuing

her education at Pune under the custody of her maternal grandparents,

and in a circumstance, when the application seeking custody of the child

came up for consideration before the Family Court at Palakkad on the

ground of his residence there and the maternal grandparents of the minor

girl resisted the claim contending that only the courts at Pune would have

jurisdiction to entertain the issue as the child was residing there, held that,

the court at Palakkad had jurisdiction to entertain the matter as the child's

natural father was residing at Palakkad. The court further held:-

                 "5. ..................................................................... ...............
           The phrase "ordinarily resides" indicates ordinary residence even
           at the time of presentation of the application. The emphasis is
           undoubtedly on the minor's ordinary place of residence.
                 6. ..............................................................................................
           The question as to the ordinary residence of a minor is always to
           be decided on the facts and particulars of each case. Ordinarily, a
           child's ordinary residence will be the place of residence of the
           parents. The mere fact that a minor child has to temporarily go
           outside the ordinary residence either for the purpose of continuing



           the education or because of the fact that the parents are
           temporarily employed else where by itself will not determine that
           place as the place of ordinary residence. In other words, ordinary
           residence must be something more than a temporary residence
           even    though         such     residence  is spread over a   long
           period. ......................."
What emanates from the above is that in order to be

ordinary residence, there must be more than a temporary residence and

that must not have been occasioned out of circumstances of constraints.

The deduction is that there cannot be any straight jacket formula that could

be adopted by the courts dealing with issues of territorial jurisdiction in

matters relating to custody of children or appointment of guardian for them.

On the contrary, the guiding factors for the court should be the facts and

circumstances of the case on its hand. The court must look into the facts

and circumstances of each case to ascertain whether the minor whose

guardianship or custody is in issue, is residing ordinarily in a particular

place for the purpose of assumption of jurisdiction by a family court of that

place. Therefore, the facts and circumstances of each case must be looked

into, to ascertain whether a person can be said to be ordinarily residing at a



given place.     The expression "ordinarily resides" connotes a regularly

settled home and not a place of stay where the children are obliged to dwell

by force of circumstances or compulsion of parents' employment. But a

minor can always retain the place of residence of his/her mother.

       19. The meaning of the words 'ordinarily resides' changes and is

capable of being understood differently according to the circumstances to

which it is made applicable. It is not the duration of stay, that matters but

the intention of the parties.    But, in the case of a minor he cannot be taken

to have any independent intention to reside at a particular place during his

age of minority. Therefore, his intention can only be that of his/her parents

and if they are living separated, then either of them with whom he/she was

residing, immediately prior to the preferring of the            application for

appointment as guardian. In case the parents are not alive, the place of

the person in whose custody he/she is or who is showing more concern

about his/her welfare and upbringing, would be of relevance while deciding

the question of jurisdiction of the court based on territory.    The decisions

referred supra would also give an indication that the court while considering

the custody application filed by a party has to arrive at a finding about the

place of ordinary residence of a minor based on the attendant

circumstances brought forth by the parties in the form of pleadings.


       20. In the backdrop, the circumstances available in the case on

hand, made available by either parties to the application seeking custody

have to be looked into. Since the issue involved is relating to appointment

of guardian for the minor, the place where the minor ordinarily resides only

has relevance.      We have already said, being a minor, he cannot be

presumed to have any independent place of residence apart from that of

his parents or persons in whose custody he was at the relevant time of

applying for the purpose.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT:

              MR.JUSTICE K.SURENDRA MOHAN
                                   &
               MRS. JUSTICE MARY JOSEPH

      23RD DAY OF AUGUST 2016
                      OP (FC).No. 148 of 2016 

      SALINI Vs UMASANKARAN
         

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What is duty of family court if child is hesitant to meet with one of parent?

 Family Courts were created with infrastructure having associations of
counsellors. All Family Courts at Delhi have two counsellors attached to the
Court. The counsellors are trained at breaking the ice.
 The learned Judge Family Court ought not to have rushed through the
matter in a casual manner. One interaction with the child was not enough.
If a child is hesitant to be with a parent, it is duty of the Presiding Judge of
the Family Court to have the child counselled with the help of the
counsellors attached to the Court. Every effort has to be made to counsel
both parents to spare the child the agony of their separation. The parents
have to be counselled to keep the child out of the litigation. Both spouses
should be encouraged to, in turn encourage the child to meet the other
spouse.
Of course, this process of breaking the ice would be slow and
cumbersome. But it has to be followed. Meaning thereby, if a Judge of a
Family Court finds a child hesitant to meet either parent, it should not be the
ground to deny proper access to the spouse in question.
Meeting a child for an hour every month and that too in the Court
premises is not sufficient. In such a situation the application seeking interim
custody for a few hours each week should be deferred and situation
monitored for a period of few months. This period should be utilized for the
counsellors to break the ice.

 IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : September 01, 2016
MAT.APP.(F.C.) 82/2016 & CM 23339/2016

ADITYA MAHAJAN  Vs SHACHI MAHAJAN 
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI

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Whether mother can withdraw main petition after obtaining custody of child at interim stage?

Now, an issue concerning appointment of a guardian focuses on the
welfare of the child. The warring couple are not the parties affected. They
may be parties interested. The affected party is the child. Thus, where one
spouse files an application to be appointed as a guardian of the child which
is opposed by the other and if the interim custody of the child is with the
petitioner spouse, if the petitioner spouse seeks to withdraw the petition the
respondent spouse can seek transposition, for the reason having taken
advantage of interim orders the petitioner spouse cannot thumb the nose at
the respondent spouse.
 IN THE HIGH COURT OF DELHI AT NEW DELHI
 Date of Decision : August 17, 2016
MAT.APP.(F.C.) 99/2014
SOMESHWAR DAYAL 
versus
ANUPAMA DAYAL ..
CORAM:
HON’BLE MR. JUSTICE PRADEEP NANDRAJOG
HON’BLE MS. JUSTICE PRATIBHA RANI

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Whether order of custody of child is interlocutory?

Section 26 of the Act is, therefore, intended to enable the Court to pass suitable orders from time to time to protect the interest of minor child (ren). It was incumbent upon the court below to consider the custody and visitation rights of one of the parents in the matter of custody of a child. Any court must remember that it is dealing with a very sensitive issue in considering the nature of care and affection that a child requires in the growing age. It is on account of this reason, the custody orders have been held to be interlocutory orders and they are capable of being altered or moulded or amended keeping in mind the requirement of a child. 

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition No. 862 of 2016 (M/S)

Decided On: 20.06.2016

Ashwin Chaudhry
Vs.
 Kiran Chaudhry

Coram:Umesh Chandra Dhyani, J.

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What factors are to be considered by court while deciding child custody dispute?

In a case of custody of a minor, the dominant factor for consideration before the Court is the 'welfare' of the child which cannot be measured by money or by physical comfort alone. The word 'welfare' must be taken in its widest sense. The moral and religious 'welfare' of the child as well as his physical well being and the tie of affection have not to be disregarded.

In Gaurav Nagpal vs. Sumedha Nagpal, 2009 All India Matrimonial Law Reporter 925 holding that the paramount consideration is welfare of the child and not right of parents under a statute, the law enunciated by the Apex Court was summed up as under:-

(1) Grant of custody of minor child by court--

Though the provisions of the special statutes which govern the right of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases.

(2) Father is natural guardian, but for custody of child paramount consideration is as to what is conducive to welfare of minor.

(3) When conflicting demands are made by parents, court then should not give emphasis on what the parties say - Court has to exercise a jurisdiction which is aimed at welfare of minor.

(4) Children are not mere chattels nor are they toys for their parents.

(5) Even if father loved the children and was not undesirable person would not necessarily lead to conclusion that welfare of children would be better promoted by granting custody of children to father.

(6) In considering the question of welfare of minor, due regard has of course to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship."

Punjab-Haryana High Court

Kajal vs Rajesh Rana on 10 February, 2015

Citation;AIR2016(NOC)175 P&H

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When mother can be granted permission to take children to Foreign country?

I am of the view that the apprehensions of the learned Guardian Judge are unfounded.

The children are US Citizens by 2015.12.03 16:12  birth. Therefore, for their mental and emotional developments, it is required that they should visit their motherland and be acquainted with its environment and also meet their mother. So far as apprehension of the learned Guardian Judge is concerned that the Court will not be able to enforce the return of the children as there is no bilateral agreement between United States and India and that India is not party to the Hague Convention, I am of the considered view that law enforcement is much effective in USA and the rights of the children are duly protected. Moreover, the decree incorporating the settled conditions was passed by the US Court and in case of violation, the same can always be enforced by US Court or the Police Department of USA. In order to allay the fear of the respondent, certain conditions can be laid down to ensure the safety of the children and their safe return, as per order of this Court. The mother petitioner has agreed to bear the traveling expenses of the children and also their boarding and lodging expenses and ensure their safe return on the date ordered by this Court.

Punjab-Haryana High Court

Maninderjit Kaur Atwal vs Barinder Singh Pannu on 1 December, 2015

          Civil Revision No.5533 of 2015                                 
   IN THE HIGH COURT OF PUNJAB AND HARYANA

                       AT CHANDIGARH

   Coram;Kuldip Singh, J. 

Citation;AIR 2016 P&H 18

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Whether custody of child can be given to parent who provide better education facility to child?

It is settled legal position that when minor is a girl, below 16 years

of age, then, it would be appropriate to hand over the custody of
such minor to her mother except for the reason that mother is not
capable to ensure the welfare of the minor. It is an admitted
position on record that there is no evidence available on record to
prove that mother is otherwise unable to support the minor or to
ensure her welfare. With regard to the education of the minor girl,
the reasonings by the Family Court is not proper inasmuch as the
father is residing in a small village, namely, Jetpur-Pavi from
where minor has to travel for 30 kms. on one side to attend the
school. Thereby, total 60 kms. in a day in public transport bus, and
therefore, petitioner is right in submitting that welfare of the child
even on the count of her studies are well within the control of the
mother, who is residing in Vadodara city with her parents and they
are ready and willing to take care of the minor even in Vadodara,
where she does not need to travel for 60 Kms. in a day to attend the
school. It is also apprehended by the petitioner – wife that life of
minor - girl is in danger during such travelling to 60 Kms. per day,
as the road is crossing the river, which is dangerous and many
children had died when one such bus had fallen into the river from
the bridge. Therefore, there is substance in the petition so far as
custody of the minor is concerned, which certainly needs to be
passed on from father to the mother.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2066 of 2015

SEJAL JITENDRA BHAGAT - PATEL....Petitioner(s)
Versus
JITENDRA BABUBHAI BHAGAT - PATEL....Respondent(s)

CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
 Date : 23/09/2015
Citation;AIR 2016 Gujarat 13

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Duty of child welfare committee to deal with statements made by child during pendency of custody dispute

The Kerala High Court on Friday, 26 June 2015 in a judgment titled ‘Sanumol C.C. Vs. Sunny P.C.‘ has held that “the Child Welfare Committee should deal cases with utmost care and caution and the Committee should not allow itself to be swayed away by the statement made by a child, without trying to test its veracity, especially in a case in which his or her parents are at loggerheads with each other, either on matrimonial issues or for custody of their minor children”.
 IN THE HIGH COURT OF KERALAAT ERNAKULAM

                                                      PRESENT:

                        THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
                                                            &
                       THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

                    FRIDAY, THE 26TH DAY OF JUNE 2015

                                          OP (FC).No. 280 of 2015 (R)
                                                ---------------------------

         SANUMOL C C, 
Vs

            SUNNY P C
          

                                 

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How to ascertain jurisdiction of foreign court in case of custody dispute of child?

 This court referred to a large number of decisions and accepted the following observations, conclusions and principles: The comity of nations does not require a court to blindly follow an order made by a foreign court.[14] Due weight should be given to the views formed by the courts of a foreign country of which the child is a national. The comity of courts demands not the enforcement of an order of a foreign court but its grave consideration.[15] The weight and persuasive effect of a foreign judgment must depend on the facts and circumstances of each case.[16] The welfare of the child is the first and paramount consideration,[17] whatever orders may have been passed by the foreign court.[18] The domestic court is bound to consider what is in the best interests of the child. Although the order of a foreign court will be attended to as one of the circumstances to be taken into account, it is not conclusive, one way or the other.[19] One of the considerations that a domestic court must keep in mind is that there is no danger to the moral or physical health of the child in repatriating him or her to the jurisdiction of the foreign country.[20] While considering whether a child should be removed to the jurisdiction of the foreign court or not, the domestic court may either conduct a summary inquiry or an elaborate inquiry in this regard. In the event the domestic court conducts a summary inquiry, it would return the custody of the child to the country from which the child was removed unless such return could be shown to be harmful to the child. In the event the domestic court conducts an elaborate inquiry, the court could go into the merits as to where the permanent welfare of the child lay and ignore the order of the foreign court or treat the fact of removal of the child from another country as only one of the circumstances.[21] An order that the child should be returned forthwith to the country from which he or she has been removed in the expectation that any dispute about his or her custody will be satisfactorily resolved in the courts of that country may well be regarded as being in the best interests of the child.[22] The modern theory of conflict of laws recognizes and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged.[23]

Supreme Court of India

Surya Vadanan vs State Of Tamilnadu & Ors on 27 February, 2015

Bench: Madan B. Lokur, Uday Umesh Lalit
Citation;AIR2015SC2243, I(2015)DMC722SC,(2015)5SCC450

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Whether burden of proof is on father to prove that mother is unfit to be appointed as guardian?

Section 3 of the HMG Act clarifies that it applies to any person who is a Hindu by religion and to any person domiciled in India who is not a Muslim, Christian, Parsi or Jew unless it is proved that any such person would not have been governed by Hindu Law. In the present case, the Mother is a Christian but inasmuch as she has not raised any objection to the applicability of the HMG Act, we shall presume that Thalbir is governed by Hindu Law. Even in the proceedings before us it has not been contested by the learned Senior Advocate that the HMG Act does not operate between the parties. Section 6 of the HMG Act is of seminal importance. It reiteratesSection 4(b) and again clarifies that guardianship covers both the person as well as the property of the minor; and then controversially states that the father and after him the mother shall be the natural guardian of a Hindu. Having said so, it immediately provides that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. The significance and amplitude of the proviso has been fully clarified by decisions of this Court and very briefly stated, a proviso is in the nature of an exception to what has earlier been generally prescribed. The use of the word "ordinarily" cannot be over-emphasised. It ordains a presumption, albeit a rebuttable one, in favour of the mother. The learned Single Judge appears to have lost sight of the significance of the use of word "ordinarily" inasmuch as he has observed in paragraph 13 of the Impugned Order that the Mother has not established her suitability to be granted interim custody of Thalbir who at that point in time was an infant. The proviso places the onus on the father to prove that it is not in the welfare of the infant child to be placed in the custody of his/her mother. The wisdom of the Parliament or the Legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment.

Supreme Court of India

Roxann Sharma vs Arun Sharma on 17 February, 2015

Bench: Vikramajit Sen, C. Nagappan

Citation;AIR 2015 SC 2232

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Whether magistrate should pass order for custody of child if said dispute is pending before district court?

In the case at hand, the admitted fact is that respondent No.1 is
still the wife of the petitioner since she has not been divorced by her
husband. Though the complainant/ respondent No. 1 has filed separate
cases for maintenance under Section 125 CrPCand for her torture under
Section 498(A) IPC the reliefs claimed in the application under Section
12 of the PWDV Act do not cover the reliefs prayed for in other cases.
In fact, vide order dated 17.5.2008, the learned Magistrate has only
ordered returned of „stridhan‟ as well as handing over the custody of
the minor child to the complainant and these reliefs cannot be granted

by the Judicial Magistrate , either in Section 125 Cr.P.Cor u/s 498(A)
of the IPC. However, if the application for custody of the child is
pending for consideration before the learned District Judge, it would be
just and proper for the learned Magistrate to refrain himself from
pursuing implementation of his order with regard to the custody of the
minor child. It is also necessary to avoid passing of conflicting orders
by two different courts, having parallel jurisdiction. Though the
Judicial Magistrate is competent to pass custody order of any child or
children u/s 21, Section 26 makes it clear that the same relief can also
be sought for in other legal proceeding before a Civil Court etc. Since,
the husband/respondent has approached the Court of District Judge,
seeking custody of their minor daughter, propriety demands that
superior court should be allowed to take a decision in the matter,
unless, the superior court i.e. the District Judge directs the respondent
to contest the issue before the Magistrate.

With the aforesaid clarification of the order of the Judicial
Magistrate regarding custody order, the Criminal Petition stands
dismissed.
IN THE GAUHATI HIGH COURT

CRIMINAL PETITION No. 434 of 10
Md. Abdul Haque,

-Versus-
SrimatiJesmina Begum Choudhury,

HON’BLE MR. JUSTICE B. D. AGARWAL

Date of judgment

25.04.2012
Citation: I(2013)DMC384, 2012(4)GLT668, 2013(3)RCR(Civil)551, 2013(3)RCR(Criminal)530, 2014(2) crimes 487 Gau

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