JUDGMENT

Mrs. Archana Puri, J.

Challenge in the present petition is to the order dated 02.11.2022 passed by learned Principal Judge, Family Court, whereby, an application under Order 7 Rule 10 read with Section 151 CPC, filed by the petitioner for rejection of petition under Section 25 of the Guardians and Wards Act, was dismissed.

2. The material facts, as culled out from the paper book are that marriage of the petitioner (husband) with respondent No.1 (wife) was solemnized on 10.06.2019, according to Hindu Rites and Ceremonies at Rewari. After the marriage, the petitioner and respondent No.1 lived together as husband and wife at Jind. From their wedlock, a male child was born on 25.04.2020.

3. However, after some time, the parties fell apart. On the accusations of demand of dowry, FIR No.39 dated 26.06.2020 was got registered at Women Police Station, Rewari against husband (petitioner) and his parents and the same is still pending adjudication. Even, a petition under Section 125 Cr.P.C. was filed by respondent No.1 (wife) against her husband and the same is also pending before Family Court, Rewari. However, during the course of the proceedings, the petitioner and his parents felt sorry for their conduct and thereupon, respondent No.1 (wife) along with minor child had accompanied the petitioner and started residing at Jind. During the stay at Jind, the respondent gave birth to second child and when she was admitted in the maternity hospital, her parents and brother had come to Jind. The petitioner and his parents had subjected parents and brother of respondent No.1 to beatings, on the basis whereof, an application was given to SHO, Civil Line, Jind. Also, it is the claim of respondent No.1 (wife) that the petitioner and his mother, had forcibly snatched minor child Viyansh, from her legal custody, while Viyansh was only 1 year and 8 months old child.

4. Thereupon, petition under Section 25 of the Guardians and Wards Act was filed by respondent No.1 (wife), thereby, seeking custody of the minor child Viyansh. The aforesaid petition was filed at Family Court, Rewari. During the pendency of the aforesaid petition, an application was filed by the petitioner under Order 7 Rule 10 read with Section 151 CPC, for seeking rejection of the petition, on the ground that child Viyansh, born from the wedlock of the parties to the lis, is ordinarily residing at Jind with his father and therefore, the Courts at Rewari, do not have jurisdiction to try the aforesaid petition for custody. Also, it was stated that respondent No.1 (wife) has no permanent residence at Rewari and now, respondent No.1, states that she is resident of Jaipur.

5. However, in the reply, it was averred that as per Section 6 of the HINDU MINORITY AND GUARDIANSHIP ACT , the custody of child below 5 years, would ordinarily lie with the mother. Also, it was stated that it was only under constrained circumstances, when respondent No.1 (wife) was not allowed to enter the matrimonial home with newly born child, she was constrained to go to her parental home with newly born child. In fact, her elder son Viyansh was kept by the husband (petitioner) and since, he was less than 5 years old, therefore, she had sought custody of minor child Viyansh.

6. Now, it is submitted by learned counsel for the petitioner-husband that since the minor child is residing presently at Jind, therefore, any petition to seek his custody, ought to be filed, at the Family Court, Jind and Family Court, Rewari,