RAMANDEEP SINGH Vs. GURPINDERDEEP KAUR GILL

JUDGEMENT

(1.) The instant appeal is directed against the order dtd. 18/12/2018 passed by the learned Civil Judge (Senior Division) [Exercising the powers of District Judge under the Guardians and Wards Act, 1890], Sri Muktsar Sahib, whereby an application filed by the respondent-wife for dismissing the petition under Sec. 25 of the Guardians and Wards Act, 1890 (for short 'the Act') filed by the appellant-husband for the custody of the minor daughter, has been allowed and the petition under Sec. 25 of the Act, stood dismissed for want of territorial jurisdiction.

(2.) As per the factual position as depicted in the impugned order, the dispute is regarding the custody of the minor daughter of the parties, namely, Teganbir Kaur Gill, aged about 3 years. In the petition under Sec. 25 of the Act, filed by the appellant-husband, respondent-wife filed an application for dismissal of the said petition, inter-alia, on the grounds, that the respondent-wife along with minor daughter, has been residing in Canada, since November, 2017 i.e. even before the filing of the said application. Thus, under Sec. 9(i) of the Act, the Courts at Sri Muktsar Sahib, had no jurisdiction to try and entertain the custody application. The objection as regards the territorial jurisdiction was to be taken at the first instance. Therefore, even before the issues were framed, the respondent- wife, had raised the objection. It was further averred that an application regarding the custody of the minor daughter is already pending in the Ontario Court of Justice Court (Canada) and the appellant-husband, through his counsel, had already caused appearance in the said proceedings at Canada.

(3.) The learned trial Court, vide order impugned herein, while allowing the application filed by the respondent-wife and thereby dismissing the petition under Sec. 25 of the Act, filed by the appellant-husband, has found that Sec. 9 of the Act provides for the jurisdiction where the application for the custody of the minor can be filed. The said Sec. stipulates that if the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. On the basis of the material on record, it was observed that the minor child is residing in Canada with the respondent- wife at 14, Caravan Court Brampton, Ontario L6 Y OT3 Canada and same was the position at the time of filing of the petition i.e. 23/1/2018 by the appellant-husband. The relevant extracts from the impugned order would read as under:-