IMPORTANT POINT
The court established that jurisdiction in custody matters is primarily based on the child's residence, but convenience and related litigations are also significant factors.

JUDGMENT :

Vikas Suri, J.

CM-4343-CII-2024

This is an application for placing on record orders dated 27.03.2019 and 06.02.2024 as Annexures A-1 and A-2.

For the reasons mentioned in the application supported by affidavit and in view of the order dated 01.03.2024 passed in the main petition, the same is allowed. Annexures A-1 and A-2 are taken on record, subject to all just exceptions.

CM stands disposed of.

TA-268-2024

1. Prayer in the present petition is for transfer of the petition filed by the respondent-wife under Sections 7, 8, 17 and 25 of the Guardians & Wards Act, 1980 (for short ‘the Act’), seeking custody of the minor male child namely Tanmay Diwan (DOB 04.05.2015) titled as Rajni Bhatia @ Rajni Diwan @ Aradhna Diwan vs. Nitin Diwan, pending before learned Principal Judge, Family Court, Jalandhar to a Court of competent jurisdiction at Ludhiana.

2. The ground pleaded in the petition seeking transfer rests sole reliance upon the provisions under Section 9 of the Act. It is submitted that the minor has been residing with the petitioner at Ludhiana. It is further submitted that earlier the petitioner had filed a petition under Sections 7 and 8 of the Act at Ludhiana, which at the instance of respondent-wife had been transferred to Jalandhar vide order dated 27.03.2019 passed in TA-734-2018. However, after the aforesaid petition was transferred from Ludhiana to Jalandhar, the petitioner had withdrawn the same.

3. Subsequently, the respondent-wife seeking custody of the minor child moved a petition under Sections 7, 8, 17 and 25 of the Act, before the family Court, Jalandhar.

4. I have heard learned counsel for the petitioner and have gone through the material available on record with his able assistance.

5. It is apparent from the record that the earlier petition filed by the petitioner under the same Act, which was instituted before the Guardian Court at Ludhiana was transferred by this Court to a Court of competent jurisdiction at Jalandhar, keeping in view the ratio of judgments in Tejbir Singh vs. Baljit Kaur, in CR-7257-2018 decided on 02.11.2018; Tarun Bansal @ Sonny vs. Neelam Rani, 2015(1) PLJ 696; Apurva vs. Navtej Singh, and two judgments of the Apex Court in Sumita Singh vs. Kumar Sanjay and another, AIR 2002 SC 396 and Bhartiben Ravibhai Rav vs. Ravibhai Govindbhai Rav, 2017(3) RCR(Civil) 369, vide order dated 27.03.2019 (Annexure A-1). After the said earlier petition having been withdrawn by the petitioner, the respondent-wife filed the present petition before the same Guardian Court/Family Court to which the earlier proceedings were transferred.

6. Dismissal of the said petition moved by the respondent-wife was sought by moving an application under Order 7 Rule 11 CPC. In the said application, the plea of jurisdiction with regard to Section 9 of the Act was made the basis. Upon notice of the said application, the same was opposed by the respondent-wife by filing written reply thereto. The said application was dismissed vide order dated 06.02.2024, by observing as under:-

“Perusal of the file reveals that the instant petition has been filed by petitioner-wife against the respondent-husband, seeking custody of the minor son namely, Tanmay Diwan, under Section 7 and 8 of Guardians and Wards Act. Learned counsel for the petitioner has relied upon the order dated 27.03.2019, passed by Hon’ble High Court, wherein the petition under Sections 7 and 8 of Guardians and Wards Act, 1890 filed by respondent-husband, against the petitioner-wife, was ordered to be transferred to the Family Court at Jalandhar, for disposal in accordance with law. From the bare perusal of order dated 27.03.2019, passed by Hon’ble High Court, it transpires that similar situation surfaced in the year 2019, when the petition under Section 7 and 8 of Guardians and Wards Act, was filed by respondent-husband before the Court of Guardian Judge, at Ludhiana. In the aforesaid order, the Hon’ble High Court took into consideration, various factors, including the f