SANJEEV MAJOO Vs. RUCHI MAJOO

JUDGEMENT

(1.) By this petition, the petitioner has assailed an order dated 4th April, 2009 passed by the District Judge III (West) whereby an application of the petitioner for dismissing the Guardianship Petition filed by the respondent on the ground of territorial jurisdiction was dismissed.

(2.) Brief facts relevant for the purpose of deciding this petition are that the petitioner and respondent were residents of United States of America. They met there some time in 1996 and got engaged in Michigan, USA in September, 1996. The marriage was solemnized between petitioner and respondent at New Delhi in December, 1996 and the parties after marriage went back to USA and started living together. A child Master Kush was born from this wedlock on 24th March, 2001 in New Jersey USA. The child by virtue of his birth in USA became US Citizens. It seems that both the parties had already applied for citizenship of USA. It is not disputed that the parties became US citizens in the year 2004. In June, 2008 petitioner and respondent along with child Master Kush visited India and respondent along with the child stayed back in India while petitioner went back to USA. A Guardianship Petition was filed by the respondent on 1st September, 2008 under Section 7,8,10 & 11 of the Guardians and Wards Act before Guardianship Court at Delhi for declaring her as guardian of minor son Kush and allowing her to retain the custody of the minor son. On the other hand, the petitioner also brought a Guardianship action in USA by filing a Child Custody Petition in the Superior Court of California, USA on 25th August, 2008 and an interim order of custody of minor son Kush was granted to the petitioner. Similarly an ex parte interim order of custody was made by the Court in Delhi, India in favour of the respondent on 16th September, 2008. The petitioner after receiving notice of the petition filed by the respondent in Delhi moved an application in October, 2008 challenging the jurisdiction of the Courts at Delhi in entertaining the petition. The respondent also took a plea in the Superior Court of California, USA about the lack of jurisdiction. The plea of respondent was declined by the court at California on 13th January, 2009 and the plea of petitioner about the lack of jurisdiction of District Judge, Delhi was declined by the impugned order.

(3.) The respondent in her petition before the Guardianship Court at Delhi had made several allegations regarding conduct and behavior of the petitioner which compelled her to come to India and stay in India. I consider that in order to decide the issue of jurisdiction of Courts at Delhi, this Court needs not go into the allegations and counter allegations made by the parties regarding their conduct, attitude and behavior. The conduct and attitude of the parties towards each other would have no bearing on the issue of jurisdiction. The next thing hotly argued before this Court, while arguing the issue of jurisdiction is about the considerations of welfare of the child. It is submitted by the learned Counsel for the respondent that the welfare of the child must be prime consideration before the Court while deciding this petition. I consider that this argument is misconceived. This Court is not considering an order passed by the lower Court in respect of custody of the child, so as to weigh the pros and cons as to in whose custody the welfare of the child would be the utmost. Neither the Court has to pass an order for interim custody. The Court is considering is "whether the Courts at Delhi, where Guardianship Petition was moved by the respondent, had jurisdiction to entertain the petition". The Courts in California or in other States of USA while considering a custody petition of the child do take into account welfare of the child. For that matter courts in any part of the civilized world, while passing orders regarding minor children, keep in mind the overall welfare of the children and issues relating to the children while weighing the rights of the parties to have custody. I, therefore consider that presently the Court is only concerned whether in the light of the undisputed facts regarding residence of the child, residence of the parents of the child and then- nationality prior to filing of the petition, the Court in Delhi would have jurisdiction or not.