Amrit Pal Singh vs Jasmit Kaur on 17 March, 2006

Delhi High Court

Delhi High Court
Amrit Pal Singh vs Jasmit Kaur on 17 March, 2006
Equivalent citations: AIR 2006 Delhi 213, 128 (2006) DLT 523
Author: R Sodhi
Bench: R Sodhi
JUDGMENT
R.S. Sodhi, J.
Page 1037
1. CM(M) 527/2005 is directed against the order dated 15.03.2006 of the Guardian judge, Delhi in
Guardianship petition no. 97/2004, whereby the learned Judge disposed of an application moved under
Section 27 of the Guardian and Wards Act along with the main petition under Section 6 and 25 of the
Guardian and Wards Act, handing over the custody of both children of the family, to the mother/respondent
herein.
2. Brief facts of the case as noted down by the Guardian Judge, Delhi are as follows:...petitioner was married to respondent on 19.01.1997 at Delhi and two children were born out of the wedlock
on 6.10.1997 and Page 1038 19.07.2001. The elder one is Master Gurnoor Singh and younger one is Master
Arshnoor Singh. It is alleged that since the inception of the marriage, petitioner was subjected to cruelty by
the respondent and his family members on account of unlawful demands of dowry. Repeated demands were
raised by the respondent and petitioner's parents kept on fulfillling the same. According to the petitioner, in
the night of 17.9.2003, the father of the respondent along with step-mother of the respondent took away both
the children from petitioner illegally and forcibly in order to inflict further cruelties upon petitioner. The
brother-in-law also supported in causing all sorts of cruelties upon the petitioner. The respondent even tried to
strangulate the petitioner but she was saved by her parents who came to her matrimonial home. The petitioner
then went along with her parents and in this way was forced to leave matrimonial home. Despite several
efforts to bring any amicable settlement, nothing could be successful and even the children have not been
returned to petitioner despite several requests. Finding no other alternative, petitioner lodged complaint before
CAW cell against the respondent and his family members.
It is further stated that respondent is irresponsible, a habitual drinker and a self-centered person. The children
are not being kept properly by the respondent and his parents. The respondent and his family members have
no love and affection for the minor children and their company would cause physical and psychological
damage to the growth of the children. It is stressed that in the interest and welfare of the children and for their
proper growth and development, their custody should be handed over to the petitioner/mother who is
competent and capable to bring up her children in the best possible manner. It is therefore, prayed that interim
custody of the children be handed over to the petitioner till the pendency of the present petition.
The respondent/father contested the petition and application by filing reply controverting all the averments of
the petition. It is contended that respondent is the natural, lawful, competent and capable guardian to have the
custody of his children and has been taking personal care of the children. The respondent is stated to be
capable and dedicated to provide congenial and better atmosphere for the welfare of the children whereas
petitioner is violent, negligent and an irresponsible lady. She has not been taking care of the children as
mother at any point of time. Specific instances have been detailed against th petitioner to show that she is not
a proper person to have the custody of his children. It is categorically denied that petitioner was subjected to
cruelties on account of unlawful demands of dowry. It is rather stressed that petitioner is violent and hostile
since the inception of marriage and despite sincere efforts of the respondent there has not been any
improvement in the behavior, attitude and temperament of the petitioner. According to the respondent,
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Amrit Pal Singh vs Jasmit Kaur on 17 March, 2006

petitioner left the matrimonial home on 11.08.2003 without informing the respondent. On telephone, the
petitioner assured that she would return after two days but in fact she had made up her mind to desert the
matrimonial home. The respondent also removed Page 1039 jewelery from the joint locker. The story put
forward by the petitioner in petition is stated to be false and incorrect. The petitioner never cared for the
children whereas respondent has been taking complete care of his children and therefore, it is stressed in the
interest and welfare of the children, they should grow in the custody of the respondent. All the allegations of
dowry demands or physical violence leveled by the petitioner have been categorically denied. It is claimed
that respondent is carefully bringing up the children and he is deeply attached to them. It is stressed that
petitioner has deserted the matrimonial home on 11.8.2003.
3. Learned counsel for the petitioner submits that the courts in Delhi had no inherent jurisdiction since there is
a bar in Section 9 of the Guardian and Wards Act. She also contends that the mother is a natural guardian only
after the father and, therefore, custody of the children could not be given to the mother during the lifetime of
father of the children. She also contends that the father is the earning member of the family and would be in a
better position to take care of the needs of the children including their education and welfare.
4. Counsel for the respondent, on the other hand, contends that the marriage between the petitioner and the
respondent was solemnized on 19.1.1997, where after they set up their matrimonial house at F-46, Rajouri
Garden, Delhi and continued to reside as husband and wife, when on 06.10.1997, first child of the family,
Master Gurnoor Singh, was born and on 19.07.2001, the second child of the family, Master Arshnoor Singh,
was born. The children continued to remain at the parental house which was the matrimonial house of the
respondent, F-46, Rajouri Garden, Delhi till 17.09.2003, when they were taken away to Guwahati by trian.
5. It is only after the mother was deprived of the custody of the children, that she filed a petition in Delhi on
11.05.2004. Counsel further submits that the court in Delhi have both territorial and inherent jurisdiction to
entertain the petition under Guardian and Wards Act 1890. He further goes on to say that the petitioner, father
is constantly traveling in connection with his business and the children are being brought up by the
grandparents at Guwahati, which is no substitute to what the mother is capable of doing for her children. He
submits that the welfare of the children at this tender age is certainly with the mother.
6. Having heard counsel for the parties, it appears to me that the question of jurisdiction was taken up before
the Guardianship Court by way of an application under Section 9 of the the Guardian and Wards Act.
Arguments were heard on 11.01.2005 and on 07.02.2005 the learned Guardianship Judge pronounced his
order which is noted as under:
Learned counsel for respondent submits that this court has jurisdiction to entertain the present petition, for
custody of the minor children and therefore, the application disputing the jurisdiction of this court may be
dismissed as not pressed for. Considering the request of Ld.Counsel for respondent, the application filed under
Section 9 of Guardianship and Wards Act on behalf of respondent is dismissed as not pressed for.
Page 1040
Learned counsel for respondent further seeks time to argue on interim application wherein the petitioner has
prayed for entire custody of the minor children. In the interest of justice, an opportunity is granted. The matter
is now fixed for orders on the application on 14.02.2005 and meanwhile counsel for respondent may argue on
any date convenient to him.
7. The aforesaid order was never challenged. Counsel has argued that jurisdiction cannot be conferred and that
a court which lacks inherent jurisdiction would not be in a position to adjudicate upon a petition before it.
Learned Counsel has cited Harshad Chiman Lal Modi v. DLF Universal Ltd. and Anr. . The proposition of
law is not disputed.
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Amrit Pal Singh vs Jasmit Kaur on 17 March, 2006

8. The children of the family were taken out of the matrimonial home on 17.09.2003, it cannot be said that the
courts at Delhi had no jurisdiction since the minors do not ordinarily reside at Delhi. The words "ordinarily
reside" do not have the same meaning as "residents at the time of application". The father of the children in
his affidavits before this court has given his residence to be in Delhi and in the declaration made before the
Guardianship Court has also declared that he is a resident of Delhi.
9. Inter-parental kidnapping cannot ouster the court of its jurisdiction, merely, because place of residence at
the time of application is different. What is to be seen is the larger canvass where the children are ordinarily
residing and not where they are temporarily put up. Here the children were removed from Delhi on
17.09.2003 and taken to Guwahati by train. It is only thereafter on 11.05.2004, the respondent-mother moved
the court in Delhi. Surely, this inter-parental kidnapping cannot ouster the court at Delhi of jurisdiction.
Further, to say that the courts at Delhi had no inherent jurisdiction, is to say the least, incorrect.
10. Inherent jurisdiction is something different from territorial jurisdiction. The Guardianship Court in Delhi
cannot be said to lack inherent jurisdiction as it is a court that has power to decide Guardianship matters. It
cannot be said that the court at Delhi was incompetent to try the suit of that kind. The objection at the highest
can be to its territorial jurisdiction. This does not go to the competence of the court and can also be waived. It
is for this reason that law demands that the objection to territorial jurisdiction of a court must be raised at the
first instance. It is well settled that the objections as to the local jurisdiction of the court does not stand on the
same footing as to the competence of a court to try a case. Competence of a court to try a case goes to the very
root of the jurisdiction and where it is lacking, it is a case of inherent lack of jurisdiction.
11. On the other hand, an objection as to the local jurisdiction of a court can be waived and this principle has
been given a statutory recognition by an enactment under Section 21 of the Code of Civil Procedure.
Page 1041
12. In the present case, as already noted the children of the family were taken out of the matrimonial home on
17.09.2003 which to my mind was an act of inter-parental kidnapping and cannot deprive Delhi Courts of the
territorial jurisdiction to entertain a petition.
13. Further, having consenting to have the dispute between the parties resolved and suffering an order dated
07.02.2005 of the Guardianship Court it is not open to challenge the territorial jurisdiction of the court at this
stage. Reference may be had to judgment of the Supreme court in Seth Heeralal Patni v. Shri Kali Nath and
the Bombay High Court in Ashok Shamjibhai Dhorode v. Mrs. Neeta Ashok Dharode and Anr. III (2001)
DMC 48.
14. Coming to the question of whether during the lifetime of the father the mother can be given the custody of
the children of the family, this would depend entirely on what is in the best interest and welfare of the minors.
There is no bar to the mother being handed over the custody of the children of the family during the lifetime
of the father if the same be in the interest and welfare of the children.
15. In Section 6A of the Hindu Minorities and Guardianship Act 1956, ordinarily, a mother is preferred over
the father in the case of custody of a minor under the age of 5 years. The question that requires to be answered
here is whether the children of the family would be better off with their mother at Delhi or with their
grand-parents at Guwahati, since the father is constantly on the move in connection with his business, as has
been stated in the rejoinder to the petition in this court.
16. The Guardianship Court has had the occasion to meet the children who are of tender age and has observed
that they are attached to their mother. From the material on record it appears that the children of the family
were studying in schools in Delhi when they were removed on 17.09.2003. In other words, the children were
with the mother at Delhi before they were removed to Guwahati. There is nothing to show that the children
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Amrit Pal Singh vs Jasmit Kaur on 17 March, 2006

were not taken care of or that it was not in their interest to keep them with their mother. It is mother who has
been giving the care, love and affection of both natural parents at this tender age while the father was mostly
away on business. In my opinion, the children should not be deprived of the company of their natural mother
who is educated and I am given to understand, financially capable of taking care of the children. She can also
devote sufficient time to them, take care of their essentials, giving them a healthy growth and development. I
see no substitution, in the present case, for mother's love and affection nor do I find any justification in
denying the children of the family from receiving love, care and affection of their natural mother, which to my
mind, is essential for the integral development and personality of the children.
17. In this view of the matter, the judgment under challenge suffers from no infirmity. CM(M) 527/2005 is
dismissed.

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