S.D.ANAND,J - (1.) THE parties are estranged spouses who are fighting over the custody of their minor daughter. To obtain guardianship of the female child the respondent No. 1 (hereinafter referred to as the 'father'), filed a petition under the relevant Legislation. The appellant (hereinafter referred to as the 'mother') entered appearance. On 19.6.2007, the learned District Judge, Rohtak, recorded the following proceedings : "Both the parties present in the Court have consented that they will accept the desire of their daughter and, therefore, her desire be ascertained separately in Camera. The parties and their counsel are, thereafter, directed to leave the Court room. Now, to come up after lunch break Sd/- District Judge, Rohtak 19.6.2007. Present : S/Shri V.S. Rathi and R.P. Budhwar, counsel for the petitioner Shri R.S. Kadian, counsel for the respondent. I have ascertained the desire of the minor daughter of the parties. She consented in unequivocal terms that her custody be given to her father namely Amit Hooda initially for one year. She also consented that she has accepted her father to be her legal and natural guardian out of free will and without any duress. In view of the above, I allow the application and declare Shri Amit Hooda as the legal and natural guardian of his daughter Aish Hooda. The respondent Smt. Manju wife of the petitioner shall, however, be at liberty to move an application afresh after the expiry of one year from today to obtain further consent of her minor daughter. The application, shall stand disposed of in the manner indicated above. 2. In the last but not in the least, it is made clear that the respondent shall be at liberty to visit her daughter in the school premises once in three months after her school hours till 5.00 p.m. Announced in open court. June 19, 2007 Sd/- District Judge Rohtak."
(2.) AT the very outset, the learned counsel appearing on behalf of the mother argued that the District Judge had no jurisdiction to try the petition in view of the Notification dated 11.06.1996 vide which this Court had empowered the Civil Judge (Senior Division) at the District Headquarters (and the Additional Civil Judge (Senior Division) at the Sub Divisional Headquarters) to try the cases under the Guardians and Wards Act, 1890 (hereinafter referred to as the 'Act'). That notification is reproduced hereunder for facility of reference : "Powers :- In modification of this Court's Notifications No. 106-Gaz/XV.A.13, dated 1.4.1975 and No. 336-Gaz.II/XV.A.13, dated 1.4.1975 and in exercise of the powers conferred by sub-section (1) of Section 4-A of the Guardian and Wards Act, 1890, as amended by Act IV of 1926, Hon'ble the Acting Chief Justice and Judges of the High Court of Punjab and Haryana at Chandigarh hereby empower the Civil Judge (Senior Division) in each of the districts in Punjab, Haryana and U.T., Chandigarh, to dispose of any proceedings under the Guardian and Wards Act, 1890, transferred to him by the District Judge of the same district. Their Lordships further empower the Additional Civil Judge (Senior Division) at Sub Divisional Headquarters for the trial of cases under Guardianship Act." Relying upon the above quoted notification, it was argued on behalf of the mother that the District Judge was not empowered to retain the petition under the Act on his own file and all that he could do, on receipt/entertainment of any such petition, was to transfer it to the Civil Judge (Senior Division).
(3.) THE plea was contested by the learned counsel appearing on behalf of the father. He argued that the provisions of Section 4-A of the Act, do not take away the plenary jurisdiction of the District Judge to try the petition under the Guardians and Wards Act and that the notification above quoted would come into play only if the District Judge is inclined to refrain from trying the matter and to transfer it. In that eventuality, the argument proceeded, the matter could be tried only by the learned Civil Judge (Senior Division) at the Headquarters and the learned Additional Civil Judge (Senior Division) at the Sub Divisional Headquarters.;