Maninder Kaur And Anr vs Jagdev Singh on 30 May, 2017

FAO-3192-2017 (OM) -1-

IN THE HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH

FAO-3192-2017 (OM)

Date of Decision: 30.5.2017

Maninder Kaur and another
….Appellants.

Versus

Jagdev Singh
…Respondent.

CORAM:- HON’BLE MR. JUSTICE AJAY KUMAR MITTAL.
HON’BLE MR. JUSTICE HARINDER SINGH SIDHU.

PRESENT: Mr. Rajesh Gupta, Advocate for the appellants.

Mr. Fariad Singh Virk, Advocate for the respondent.

AJAY KUMAR MITTAL, J.

1. The appellant-wife has approached this Court by way of instant

appeal challenging the judgment dated 8.3.2017 passed by Civil Judge

(Senior Division), Ludhiana, whereby the petition under Section 25 of the

Guardian and Wards Act, 1890 (in short “the Act”) filed by the respondent-

father for the custody of his minor son, namely, Gurshant Singh, was

allowed.

2. A few facts necessary for adjudication of the instant appeal as

narrated therein may be noticed. The marriage of appellant No.1 and the

respondent was solemnized on 17.11.2007 and from the said wedlock, son

Gurshant Singh was born on 12.8.2009. However, due to temperamental

differences between the parties, the matrimonial ties between them was

dissolved by a decree of divorce dated 9.3.2011 passed by the trial Court.

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The minor being newly born infant was in the custody of appellant No.1

being dependent upon her feed. Before filing the petition for the grant of

decree of divorce by mutual consent, a compromise was effected between

the parties which was reduced into writing on 13.7.2010 and it was agreed

by the appellants that they would hand over the custody of the minor after

passing of decree of divorce to the respondent provided that till the grant of

divorce, he would live with appellant No.1. After the passing of the decree

of divorce, the appellants started dilly delaying the matter regarding the

custody of the minor. After few months, the appellants left their residential

house from the village without information and started living at undisclosed

place to deprive the respondent from the custody of the minor. Later, the

respondent came to know that appellant No.1 had left India and had gone

abroad and had also remarried there by leaving the minor child with

appellant No.2-grand father (hereinafter referred to as appellant No.2).

Appellant No.1 had neglected the minor and left his company and there was

nobody in the family of appellant No.2 to look after the minor. Appellant

No.2 is also employed in Fishery Department and he had to remain out of

house on his duty. The atmosphere in the house of the appellants was

adverse and was not conducive for the proper development and growth of

the minor who is of tender age and required constant love, care and

affection. The interest and welfare of the minor was not safe at the hands of

the appellants and was not good for mental and physical growth of the child.

The respondent was interested to keep and maintain the minor child and he

had great love, affection and attachment with him. He is employed at PTU

learning Centre, Main Market, Doraha which is near to his residence. He

can give sufficient time to the child as his working hours are also very short.

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Further, the respondent was living in a joint family consisting of his parents,

second wife and one female child. His second wife was also educated and

was employed as computer teacher in the Government School. She had

been looking after small girl child and also desired to keep the minor along

with her and was ready to provide motherly treatment to him. The interest

and welfare of the minor was safe and secure at the hands of the respondent

READ  In Re: Basith And Others-vs-Unknown on 11 December, 1996

for his proper development and growth. Accordingly, the respondent-

husband filed a petition under Section 25 of the Act for the custody of the

minor child. The said petition was resisted by the appellants by filing a

written statement. Besides raising various preliminary objections, it was

pleaded that the respondent had admitted in a petition under Section 13B of

the 1955 Act that the minor would remain in the custody of appellant No.1

and the entire liability of the minor regarding his upbringing, education,

marriage etc. was taken by appellant No.1 and the respondent had not taken

any objection regarding the same. Appellant No.1 was turned out from her

matrimonial home when she was pregnant and she gave birth to the minor

son when she was living with her parents. The appellants shifted from

village Katani Kalan to Ludhiana for the betterment and bright future of the

minor. Further, appellant No.1 solemnized her second marriage in UK with

an intention to take the minor son abroad for his better future. Appellant

No.1 went abroad on 24.9.2011 and she also applied visa for her minor son

but the visa for the minor son was rejected and then she filed an appeal but

the appeal was also dismissed. Thereafter, she came back to India on

16.1.2012 and since then she is residing with her minor son. Appellant

No.1 is a well qualified and doing the job as a teacher in Amrit Indo

Canadian Academy Senior Secondary School and is getting handsome

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salary. The minor is also studying in the same school. The respondent had

remarried and had also one child from his second marriage. The future of

the minor was not safe in the hands of the respondent. The interest and

welfare of the minor was very much safe in the hands of the appellants. The

other averments made in the petition were denied and a prayer for dismissal

of the same was made. The respondent controverted the averments made in

the written statement by filing a rejoinder and reiterated that of the

averments made in the petition. From the pleadings of the parties, the trial

court framed the following issues:-

1. Whether the petitioner is entitled for the custody of

minor Gurshant Singh, as prayed for? OPA

2. Whether the petition is maintainable, as prayed

for? OPR

3. Whether the petitioner is estopped by his own act

and conduct from filing the present petition, as

prayed for? OPR

4. Relief.

3. In support of his case, the respondent appeared himself as PW1

and tendered various documents including his affidavit Ex.PA and also

examined his father PW2 Pritam Singh who submitted his affidavit Ex.PB.

On the other hand, appellant No.1 appeared as RW1 and tendered various

documents in her evidence including her affidavit Ex.RA. She also

examined respondent No.2 Dalbir Singh as RW2 who also tendered his

affidavit Ex.RB.

4. The trial court on appreciation of evidence led by the parties,

held that in the absence of any positive proof that the father has suffered

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from any disqualification from being the guardian and custodian of the

minor child, he alone would be the fit and proper person to have the custody

of the minor in the absence of his natural mother. Further, it was held that

the welfare of the child would be amply protected only if the child is

allowed to be in the custody of his father, at least from now. Accordingly,

the trial Court vide judgment and decree dated 8.3.2017 allowed the petition

and directed appellant No.1 to handover the custody of minor Gurshant

READ  Riyaz Ulla Shariff vs Nisar Ahamed on 18 April, 2017

Singh to the respondent within a period of one month. However, visitation

rights were granted to appellant No.1 to meet the minor. Hence, the present

appeal.

5. After hearing learned counsel for the parties, we do not find

any merit in the appeal.

6. The Apex Court in Gaytri Bajaj v. Jiten Bhalla 2012(4) RCR

(Civil) 603 discussing the issue relating to custody of minor child had held

as under:-

“14. From the above it follows that an order of custody

of minor children either under the provisions of The

Guardians and Wards Act, 1890 or Hindu Minority and

Guardianship Act, 1956 is required to be made by the

Court treating the interest and welfare of the minor to be

of paramount importance. It is not the better right of the

either parent that would require adjudication while

deciding their entitlement to custody. The desire of the

child coupled with the availability of a conducive and

appropriate environment for proper upbringing together

with the ability and means of the concerned parent to

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take care of the child are some of the relevant factors that

have to be taken into account by the Court while

deciding the issue of custody of a minor. What must be

emphasized is that while all other factors are undoubtedly

relevant, it is the desire, interest and welfare of the minor

which is the crucial and ultimate consideration that must

guide the determination required to be made by the

Court.”

7. The father of the minor is the natural guardian and has the right

of custody unless the Court comes to the conclusion that the father is unfit

to have the custody and that it is not for the welfare of the minor that the

father should be allowed to exercise his right. Guardianship is in the nature

of a sacred trust. Further, the order of custody of minor is required to be

made by the court treating the interest and welfare of the minor to be of

paramount importance. The desire of the child coupled with the availability

of a conducive and appropriate environment for proper upbringing together

with the ability and means of the concerned parent to take care of the child

are some of the relevant factors that have to be taken into account by the

court while deciding the issue of custody of a minor. What must be

emphasized is that while all other factors are undoubtedly relevant, it is the

desire, interest and welfare of the minor which is the crucial and ultimate

consideration that must guide the determination required to be made by the

Court.

8. In the present case, admittedly appellant No.1 and the

respondent are the natural parents of minor Gurshant Singh. They were

granted divorce by mutual consent by the trial Court vide judgment and

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decree dated 9.3.2011. In the said decree, appellant No.1 agreed to give the

custody of minor child to the respondent. The minor was residing with

appellant No.1 who had solemnized her second marriage. Even the

respondent had also solemnized his second marriage and from the said

marriage, a daughter was born who is living with the respondent.

9. A perusal of the file shows that when the child was about one

and half year old, the divorce was granted to appellant No.1 and the

respondent by mutual consent. After one month of the grant of divorce,

appellant No.1 applied for visa and after sanction of the visa, she went

abroad to resume her matrimonial life with her second husband. However,

the visa of the minor was rejected and despite that appellant No.1 went

abroad leaving the child at the mercy and custody of her parents. It seems

that the welfare of the minor was not cared by appellant No.1. The

respondent being the father of the minor was entitled to get his custody and

appellant No.1, mother of the minor went abroad to reside with her second

husband. Therefore, the care and custody of the minor would not be safe in

the hands of the maternal grandparents. Further, there was recital in the

statements of the parties that the mother shall be responsible for upbringing

of the minor in future, but after the grant of divorce, the minor would

remain in the custody of the respondent-father. Therefore, it was the duty of

appellant No.1 to handover the custody of the minor to the respondent, but

she resiled from the compromise. Even the fact of the alleged agreement to

be a fake document was not proved by appellant No.1.

10. Still further, in the compromise, Ex.P3, it was agreed that at

present son Gurshant Singh shall remain with his mother Maninder Kaur

and at time of passing a decree of divorce by the Court, Maninder Kaur

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shall be bound to give the custody of Gurshant to his father. Even in the

joint petition filed under Section 13B of the 1955 Act by appellant No.1 and

the respondent, in para 6 thereof, it was mentioned that “it has been

mutually settled that appellant No.1 will receive a sum of ` 2,00,000/- for

her claim towards past, present and future maintenance and permanent

alimony from the respondent and out of the settled amount, she had received

a sum of ` 1,00,000/- through demand draft dated 16.8.2010 and the

remaining amount of ` 1,00,000/- shall be received by her at the time of

making second statement in the said petition for passing decree of divorce

and she will be bound to give custody of minor Gurshant Singh to the

respondent at that time.” Further, reference was made by the learned counsel

for the respondent to the statement Ex.PA of the respondent wherein it was

also pleaded that as undertaken by the appellants that they would hand over

the custody of minor Gurshant Singh after passing of a decree of divorce to

the respondent provided that till the grant of divorce decree he would live

with appellant No.1.

11. The trial Court on appreciation of the evidence led by the

parties had correctly recorded that the father can desire the return of the

child to his custody, even though he left the child for a few years in charge

of his in-laws. Further, the trial Court held that the appellants had failed to

prove that the father does suffer from any circumstance depriving his

parental right. In the absence of any positive proof that the father had

suffered any disqualification from being the guardian and custodian of the

minor child, the father alone would be fit and proper person to have the

custody of the minor in preference to his natural mother. The trial court had

rightly concluded that in the given circumstances and the evidence brought

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on record, the custody of the minor child be handed to the respondent.

12. No illegality or perversity could be demonstrated in the

findings recorded by the trial Court being based on misreading or

misappreciation of evidence on record which may warrant interference by

this Court. Consequently, finding no merit in the instant appeal, the same is

hereby dismissed.

(AJAY KUMAR MITTAL)
JUDGE

May 30, 2017 (HARINDER SINGH SIDHU)
gbs JUDGE

Whether Speaking/Reasoned Yes

Whether Reportable Yes

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