Issue-1 : Whether the family court at Hyderabad has jurisdiction to entertain

the petition for restitution of conjugal rights as filed by ajay?

It is humbly submitted that the family court at Hyderabad doesnot have

jurisdiction to entertain the petition for restitution of conjugal rights as filed by
ajay, as the petition itself is not maintainable.

The jurisdiction of family court has been conferred by Section 7 of The Family
Courts Act, 1984 as a subject matter jurisdiction.

Where the subject matter i.e petition for restitution of conjugal rights itself is
not maintainable then the jurisdiction of family court Hyderabad will
automatically be ousted.

For a petition for restitution of conjugal rights to be maintainable, there are

three grounds which needs to be proved according to Section 9 in The Hindu
Marriage Act, 1955

1. Spouses must not be staying together.

2. Withdrawal of a party from the other must have no reasonable ground
for such withdrawal.
3. The aggrieved party must apply for restitution of conjugal rights.

The most important ground for allowing the petition is to prove that the wife
has withdrawn from the society of husband without a reasonable cause.

In the present case, where the appellant-wife has with her husbands and her
in-laws consent joined the job in the Mumbai as part of her career, it doesn’t
amount to withdrawal from the society of the husband. And living separately
from the husband for the purpose of job is a reasonable excuse.

As the essential requisite for the petition for restitution of conjugal rights itself
is not satisfied, then the petition for it will not be maintainable.

Pravinaben vs Sureshbhai Tribhovan Arva AIR 1975 Guj 69, the Court held
that if the wife is working in a place away from the house with the full consent
of the husband, then the husband cannot file a restitution suit.
Hence, from the above facts it is concluded that the family court at Hyderabad
doesnot have jurisdiction to entertain the petition for restitution of conjugal
rights.
Issue-2 : Whether swapna has reasonable grounds to withdraw from the
association of her husband?

It is humbly submitted that swapna has reasonable grounds to live separately

from her husband.

Section 9 of Hindu Marriage Act, 1955 provides that If either the husband or
the wife, without reasonable excuses, withdraws from the society of the other,
the aggrieved party may approach the Court for restitution of conjugal rights.

In the present case, swapna-the appellant has not withdrawn from the
associations of her husband instead she took the consent of her husband and
in-laws before moving to Mumbai for the job.

Staying separately was not a voluntary action of the appellant but it was the
necessity when she got posted to Mumbai as a matter of promotion in her job
which was a dream for her to work in such a capacity.

Apart from that it is important to note that when she wanted to shift back to
Hyderabad, she could not do so because of lack of vacancies in Hyderabad. She
did not have any intentions to stay away from her husband and the family.
Rather she always made efforts by visiting Hyderabad every fortnight.

Unfortunately, all the efforts of the appellant to get transferred to Hyderabad

went in vain.

And where the appellant has got a better opportunity to work and earn even
more than her husband, taking up the new job is an absolutely reasonable
ground for staying separately from the husband.

In the case of Shanti Nigam vs. Ramesh Chandra AIR 1971 ALL 567, the court
observed that withdrawal from the society of the husband may be physical but
without any intention to leave his company. So as long as wife completely cut
herself and decided not to go to her husband and she breaks all marital ties
with him then it will be a ground for a decree of restitution of conjugal rights.
Refusal to quit the job at the instance of the husband is not a ground for a
decree of restitution of conjugal rights. The court also said that it will not
follow the old concept and rules, its decision will be based on considering the
present-day situations.

In the case of Mirchumal v. Devi, AIR 1977 Raj. 114 the court has observed
that the proposition that wife must always stay under the roof of the husband
might be right in past but it is no longer true in the age of equality of
opportunity in employment to both sexes. So wife's taking up of job or not
giving it up at the instance of the husband can not amount to withdrawal from
his society.

In Swaraj Garg vs. K.M Garg AIR 1978 Del 296 the court held that if a husband
and wife are gainfully employed and the wife is earning more than the
husband, then there are sufficient reasons for the wife to live separately. So, in
this case, the court didn’t grant the petition for restitution of conjugal rights in
favour of the husband. The court also said that there is nothing in Hindu Law
saying that the wife has no right in choosing the place of a matrimonial home.
Issue-3: Whether swapna is entitled to the custody of their only child?

It is humbly submitted that swapna is entitled to the custody of their only child.

According to Section 6 of The Hindu Minority and Guardianship Act, 1956-The

natural guardian of a Hindu minor in the case of a boy is the father, and after
him, the mother.

Provided that the custody of a minor who has not completed the age of five
years shall ordinarily be with the mother;

Though the natural guardian according to section 6 of the act is father it

doesn’t ipso facto give the custody of the minor child to the father.

In the case of Surinder Kaur v. Harbax Singh 1984 SC 1224 the supreme court
interpreted section 6 and held that the section constitutes the father as the
natural guardian of a minor son. But that provision cannot supersede the
paramount consideration as to what is conducive to the welfare of the minor.
As the matters are presented to us today, the boy, from his own point of view,
ought to be in the custody of the mother.

The term `Welfare' is an all encompassing word which includes material

welfare, both in the sense of adequacy of resources to provide a pleasant
home and comfortable standard of living and in the sense of an adequacy of
care to ensure that good health and due personal pride are maintained.

In the present case, the wife is earning more than the husband and she can
ensure quality education, better life style and can take care of the boy for his
wellbeing better than the husband. Moreover, as the boy is minor, he needs
love and affection from his mother which he did not get previously while
staying separated from the mother. Only a mother can adequately upbring the
minor child. A mothers control over her children is axiomatic.

In the case of Geeta Hariharan v. RBI (AIR 1999 SC 1149), the Supreme Court
widely interpreted the word “after” in the provision and observed that “the
word did not necessarily mean after the death of the father, on the contrary, it
means ‘in the absence of’ be it temporary or otherwise or total apathy of the
father towards the child or even inability of the father by reason of ailment or
otherwise.” Thus, Natural guardian may be the father or mother, whoever is
capable of and available for taking care of the child and is deeply interested in
the welfare of the child. The Hon'ble Supreme Court held that the mother
should be considered as the natural guardian of the minor girl.

In Faruq Ibrahimbhai Mulla v. Karishmabanu Anwar Hussain Qureshi , 2016 SCC

OnLine Guj 2656The Court while rejecting the appellant’s submissions held that
since both, the appellant father and respondent mother are working therefore,
the submission on behalf of the appellant husband that the respondent
mother is working woman-mother, and therefore, will not be in a position to
spare time for the welfare of the minor child is concerned, the same has no
substance as in that case, it can be argued that as the appellant is also
serving he will not be in a position to take proper care of the minor child. The
Court held that merely because the mother is serving, it cannot be assumed
and/or presumed that she is not able to take care of the minor child as in these
days, so many mothers are working and still they are taking care of the
children.
Hence, the Court observed that the paramount interest of the minor child
would be to continue the custody of the child with the respondent mother
since the child is happy and very much firm on living with her therefore, the
Family Court had not committed any error which called for interference, while
refusing to grant permanent custody of the minor son to the appellant father
herein.

Therefore, All these circumstances clearly indicate that if the custody of the
child is given to the mother, it will be in the best interest and welfare of the
child.