CHAMAR VASHRAM CHHAGANBHAI Vs. PARMAR SURESH RAMJI

JUDGEMENT

(1.) The petitioner herein is the father of respondent No. 2 Deval alias Devuben a minor of 16 years. Mr. B.M. Gupta the learned Counsel for the petitioner challenges the impugned judgment and order dated 14 passed by the Chief Judicial Magistrate Mehsana awarding custody of the minor Devuben to her husband Parmar Sureshbhai Ramjibhai respondent No. 1 herein. It has been urged on behalf of the petitioner that although Devuben is 16 years old she is yet a minor being below 18 and hence the petitioner-father is entitled to her custody and therefore the impugned order of the learned Magistrate Mehsana is illegal and deserves to be set aside. This submission of Mr. Gupta is not tenable and must be rejected because although Devuben is a minor she is the wife of respondent No. 1 who is entitled to the custody of his wife who has attained the age of 18 years although she has not attained majority within the meaning of Indian Majority Act. The husband of a minor wife is entitled to the custody of his wife in preference to the father. In this case the minor Devuben was produced before the learned Chief Judicial Magistrate Mehsana under the search warrant issued by the court and when the girl was asked whether she wanted to go with her father or with her husband the girl had expressed her desire to go with her husband i.e. the present respondent No. 1 had had refused to go with the petitioner. Hence the impugned order passed by the Chief Judicial Magistrate is justified and must be upheld.

(2.) Mr. Gupta has also urged that the Mehsana Court has no jurisdiction to pass the impugned order as the alleged kidnaping by the father of the girl had taken place at Gomtipur in Ahmedabad and therefore the Metropolitan Magistrate Court Ahmedabad would have jurisdiction and not the Mehsana Court In this case the matrimonial home of respondent Nos. 1 & 2 is at Mehsana. Although the alleged kidnaping by the father of the minor girl has taken place in Ahmedabad it cannot be said that Mehsana Court has no territorial jurisdiction in this case at all.

(3.) Mr. A.Y. Pathan the learned Counsel for the respondents Nos. 1 & 2 has argued that even assuming for the sake of argument that Mehsana Court has no territorial jurisdiction in passing the impugned order he urges that at best it is an irregularity and therefore the impugned order cannot be set aside on the ground of the trial court not having territorial jurisdiction. He relies on sec. 462 of the Criminal Procedure Code 1973 for this proposition. Mr. Pathans argument is correct and it must be upheld. Hence the challenge to the impugned order on the ground of territorial jurisdiction must be rejected.