FAO-1025-2016 (OM)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
FAO-1025-2016 (OM).
Decided on: December 11, 2017.
Sonia
.. Appellant
VERSUS
Sushil
.. Respondent
***
CORAM: HON’BLE MR.JUSTICE M.M.S.BEDI
HON’BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
***
PRESENT Ms.Nupur Chaudhary, Advocate,
for the appellant.
Mr.M.S.Khillan, Advocate,
for the respondent.
M.M.S. BEDI, J. (ORAL)
After hearing the counsel for both the parties, it appears
that both the parties to some extent are agreeable to the settlement that the
appellant-mother cannot be deprived of her right of guardianship. For
custody of minor son Brijesh, the appellant-wife had filed a petition under
the Guardian and Wards Act. The District Judge, Family Court, Sonipat
held that the appellant-wife is entitled to the custody of the minor son from
the respondent but under issue No.2 the appellant-wife has been denied the
benefit of finding on issue No.1 by holding that the Court at Sonipat does
not have territorial jurisdiction. The lower Court disposed of the petition
1
1 of 3
24-12-2017 13:14:17 :::
FAO-1025-2016 (OM)
filed by the appellant-wife holding that the appellant-wife shall be entitled
to present a fresh petition regarding the same cause of action before the
Court of competent jurisdiction. The finding on issue No.2, prima facie,
appears to be not sustainable as we have been told that the respondent-
husband is working at Yamuna Nagar, but the child is staying at Karnal. By
shifting the child from one place to another, the jurisdiction of the Court
cannot be changed. It is settled principle of law that under Sections 18 and
19 (1) of the Guardian and Wards Act, while determining the rights of a
party for guardianship of a minor child, the welfare of the child is the main
concern and the place of jurisdiction would be the place where the minor
“ordinarily resides.”
During the course of arguments, counsel for the parties
have informed that petition under Section 13-B of the Hindu Marriage Act,
has been filed, inter alia, on the term and condition that the marriage will be
dissolved and the custody of the minor son Brijesh would remain with the
respondent-husband. Since the appellant-mother herself has waived off her
legal right regarding the custody of the child despite there being a finding
under issue No.1 by the trial Court and claimed lesser relief of visitation
right only, we deem it appropriate to dispose of this appeal by maintaining
the right of the appellant-mother and also taking into consideration, waiver
of her partial right i.e. by giving up right of custody but claiming the right of
visitation only.
At this stage, on asking of the Court regarding the
suitable time for meeting the child, counsel for both the parties inform that
any time between 1:00 PM to 5:00 PM, can be fixed as per the convenience
2
2 of 3
24-12-2017 13:14:18 :::
FAO-1025-2016 (OM)
of the parties so that the appellant-mother can travel from Kurukshetra to
Karnal to stay with the child for a period of 1 to 3 hours under intimation to
the Court by moving a misc. application in case need be.
This petition is disposed of with a direction that the
appellant-mother shall be entitled to visitation rights to meet the child
Brijesh for at least 2 to 3 hours on 2nd and 4th Sunday of every month either
at Mediation and Conciliation Centre, Karnal, or at Atal Park, Karnal or at
any other place as mutually agreed between the parties.
The appeal is, accordingly, partly allowed as the
appellant-mother has given up the right of custody but insisted for her right
of visitation till the child attains majority.
In case the parties are not able to amicably dissolve the
marriage under Section 13-B of the Hindu Marriage Act, it will be open to
them to approach this Court for variation of the terms of visitation
right/custody.
(M.M.S. BEDI)
JUDGE
December 11, 2017. (AUGUSTINE GEORGE MASIH)
raj arora JUDGE
Whether speaking / reasoned Yes / No
Whether reportable Yes / No
3
3 of 3
24-12-2017 13:14:18 :::