FAO-487-2016 -1-
IN THE HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH
FAO-487-2016
Date of Decision: 24.5.2017
Jagdev Singh
….Appellant.
Versus
Mandeep Kaur
…Respondent.
CORAM:- HON’BLE MR. JUSTICE AJAY KUMAR MITTAL.
HON’BLE MR. JUSTICE HARINDER SINGH SIDHU.
PRESENT: Mr. Vikram Preet Arora, Advocate for the appellant.
Mr. J.S. Moudgill, Advocate for the respondent.
AJAY KUMAR MITTAL, J.
1. Having lost before the trial court in a petition under Section 25
of the Guardian and Wards Act, 1890 (in short “the Act”) for the custody of
minor child, namely, Armandeep Singh, the appellant-husband has
approached this Court by way of instant appeal challenging the judgment
dated 23.10.2015 passed by the Additional Civil Judge (Senior Division),
Amloh (exercising the powers of District Judge).
2. Put shortly, the facts necessary for adjudication of the instant
appeal as narrated therein may be noticed. The marriage between the parties
was solemnized on 15.10.2006 at village Shamshpur, Tehsil Amloh. From
the said wedlock, son Armandeep Singh was born on 3.7.2007. The parties
could not adjust with each other and got panchayati divorce and later on
filed a petition under Section 13B of the Hindu Marriage Act, 1955 for a
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decree of divorce by mutual consent which was granted vide judgment and
decree dated 20.10.2008. At the time of getting divorce by mutual consent,
it was agreed that neither they will file any suit/proceedings against each
other nor the appellant would file a petition for custody of the minor.
Further, the respondent agreed that she would maintain and keep the minor
child and would not claim any maintenance from the appellant who had
already paid lump sum amount to her on account of permanent alimony.
However, the respondent lateron filed a petition under Section 125 of the
Code of Criminal Procedure on behalf of the minor and the trial Court
granted maintenance @ ` 1500/- per month to the minor. According to the
appellant, the respondent had already contracted second marriage with
Satnam Singh and was residing with her at village Uksi Dudhal, Tehsil
Payal and the minor was residing with his maternal grand mother (Nani) at
village Shamshpur. The respondent was not in a position to keep and
maintain the minor and the minor was residing without care and custody of
his mother and father. Accordingly, the appellant filed a petition under
Section 25 of the Act for the custody of the minor, namely, Armandeep
Singh. The said petition was contested by the respondent by filing a written
statement. Besides raising various preliminary objections, it was pleaded
that the present petition was filed by the appellant only to avoid the payment
of maintenance to the minor son which was allowed by the Judicial
Magistrate Ist Class, Amloh. The minor child was residing with the mother
at village Shamshpur and she had a right to claim maintenance for the
welfare of the minor and had been rightly considered natural guardian of the
minor in the petition under Section 125 of the Code of Criminal Procedure.
It was further pleaded that the appellant was enjoying with the second wife.
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Even at the time of giving divorce, it was agreed between the parties that
they would not file any suit/ proceeding against each other nor the appellant
would file a petition for custody of the minor. The respondent would
maintain and keep the minor with her and would not claim any maintenance
from the appellant. The other averments made in the petition were denied
and a prayer for dismissal of the same was made. Rejoinder was filed
controverting the averments made in the written statement and reiterating
that made in the petition. From the pleadings of the parties, the trial court
framed the following issues:-
1. Whether the petitioner is entitled for custody of
minor child, namely, Armandeep Singh? OPA
2. Whether the petition is not maintainable? OPR
3. Relief.
4. In support of his case, the appellant examined himself as PW1,
Balwinder Kaur as PW2, Gulzar Singh as PW3 and Jaswinder Singh as
PW4 (wrongly mentioned as PW3 in the judgment). On the other hand, the
respondent besides examining herself as RW1, also examined Tejinder
Singh as RW2 and Avtar Singh Lamberdar as RW3.
5. The trial court on appreciation of the evidence led by the
parties dismissed the petition under Section 25 of the Act vide judgment
dated 23.10.2015 holding that the custody of the minor could not be
disturbed until or unless the Court is satisfied that the future or life of the
minor child was at stake in the hands of the present guardian. Hence, the
present appeal.
6. Learned counsel for the appellant submitted that the respondent
has proceeded to foreign country after leaving the minor child in India. It
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was further submitted that the appellant being the father of the minor had
every right to claim the custody of the minor.
7. On the other hand, learned counsel for the respondent
supported the judgment passed by the trial Court and submitted that the trial
Court had rightly declined the custody of the minor to the appellant.
8. After hearing learned counsel for the parties, we do not find
any merit in the appeal.
9. 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
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
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FAO-487-2016 -5-which is the crucial and ultimate consideration that must
guide the determination required to be made by the
Court.”
10. Undisputedly, the father of the minor is the natural guardian,
though custody of a minor who has not completed the age of five years shall
ordinarily be with the mother, 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.
11. The courts while adjudicating the issue of custody of minor has
to ensure that the interest and welfare of the minor is of paramount
importance. While deciding the better rights of either parent would not be
of great significance. The factors to be borne in mind by the Court while
allowing custody to a parent is to see the desire of the child along with the
availability of a conducive and appropriate environment for proper
upbringing and further the ability and means of the concerned parent to take
care of the child. No doubt, all other factors cannot be said to irrelevant but
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.
12. In the present case, it was not disputed in the statement of
Jagdev Singh PW1 appellant and his mother Balwinder Kaur PW2 that at
the time of granting divorce, it was agreed by both the parties that they will
not file any suit/proceedings against each other nor the father-appellant shall
file any petition for the custody of the minor. In such circumstances, the
petition now filed for custody of the minor cannot be held to be bonafide
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especially when the father has not been able to demonstrate that there was
negligence on the part of the respondent-wife to maintain him and act of the
respondent-wife was not for the welfare of the child. The appellant had not
produced any evidence to show that the minor was not happy in the
company of his mother-respondent. She appeared to be in a position to look
after the minor and provide with adequate educational facilities and also to
maintain him in a proper and congenial manner. Further, the appellant had
contracted second marriage and his second wife was having a child with
her. Moreover, the interest of the minor would be better served by allowing
him to remain in the custody of the respondent. The appellant had
miserably failed to prove that welfare of the minor would be better served if
the custody is granted to him. Thus, keeping in view the facts and
circumstances of the case, it would not be in the interest of the minor to
dislodge him from his natural mother-respondent when there were no
specific reasons or evidence produced on behalf of the appellant to do so.
13. The trial Court after appreciating the oral as well as
documentary evidence had rightly concluded that it was in the interest of the
minor that he remained with his mother with the following observations:-
“17. After considering the rival submissions of learned
counsel for the parties, this Court is of the opinion that in
the petition as well as statement of PW1 Jagdev Singh
petitioner and PW2 Balwinder Kaur mother of the
petitioner admitted that at the time of getting divorce
both the parties agreed that they will not file any
suit/proceedings against each other nor petitioner will
file petition for the custody of the minor. When the
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FAO-487-2016 -7-petitioner agreed that he shall not claim the custody of
the minor then how he can file the present petition. The
perusal of statement of Jagdev Singh during divorce
proceedings Ex.D22 reveals that he has not even reserved
his visiting right to meet the minor child Armandeep
Singh. The petitioner has made statement before the
matrimonial court that the custody of the minor child
shall remain with the respondent absolutely without any
interference on his part. The matrimonial court accepted
the statements of the parties which were in the nature of
undertakings and based on those statements, passed a
decree of divorce dated 21.12.2008. In the light of these
facts, any petition filed by the petitioner for the custody
of the child seeking to appoint him as guardian of the
minor is in the breach of the undertaking given by him to
the matrimonial court. There was no justification on the
part of the petitioner to have approached the Guardian
Wards Court for the relief as aforesaid. Further the
perusal of petition under Section 13B of Hindu Marriage
Act Ex.D21 shows that in para No.3 it is averred that
after the marriage the parties to the petition lived together
and cohabited with each other at Dashmesh Colony,
Mandi Gobindgarh, Tehsil Amloh, District Fatehgarh
Sahib upto second week of August, 2007 and a son
namely Armandeep Singh was born out of the wedlock of
the parties to the petition on 3rd July, 2007 which shows
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FAO-487-2016 -8-that the petitioner and respondent started living separate
from each other after few days of birth of minor
Armandeep Singh and therefore the petitioner has no
love and affection with the minor Armandeep Singh.
The argument of learned counsel for the petitioner that
the respondent had remarried and the second husband of
the respondent is not adopting the minor son as his son.
This argument of learned counsel for the petitioner is not
tenable as the respondent has pleaded and stated that the
petitioner has remarried. The petitioner has not cross-
examined her on this point and it is settled law that when
the cross-examination is not conducted on the specific
point, then it is presumed to be admitted. Further, in the
rejoinder, the petitioner has also not denied this fact
specifically. So, the respondent has proved on record
that the petitioner has also remarried. Had the petitioner
not remarried, then the position must have been different.
Further, the fact that respondent has married a person by
itself is not a ground to take away the custody of the
child from the mother and reliance to this effect is placed
on the authority of Lekshmi Vs. Vasantha Kumari
2005 (3) Civil Court Cases 259 (Kerala). Next
argument of learned counsel for the petitioner that the
respondent is not properly maintaining the minor child
Armandeep Singh. This argument of learned counsel for
the petitioner is also not tenable as the respondent has
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FAO-487-2016 -9-placed and proved on record tuition fee receipts of
Armandeep Singh Ex.D26 to Ex.D35 which shows that at
present the minor child Armandeep Singh is studying in
Baba Nand Singh Ji Public School, Mukandpur,
Ludhiana. Further, the respondent has also examined
RW2 Tejinder Singh, RW3 Avtar Singh who have also
deposed that the respondent is property maintaining her
minor child Armandeep Singh. There is nothing on the
file that the minor child Armandeep Singh is neglected
and is not being provided love and affection by the
respondent. Until or unless, the court is satisfied with the
fact that the future or life of the minor child is at stake in
the hands of her present guardian, the custody of the
minor should not be disturbed. In view of above
discussion, this issue is decided in favour of the
respondent and against the petitioner.”
14. In view of the above and the findings recorded by the trial
court, no ground is made out for handing over the custody of the minor to
the appellant. Accordingly, finding no merit in the appeal, the same is
hereby dismissed.
(AJAY KUMAR MITTAL)
JUDGE
May 24, 2017 (HARINDER SINGH SIDHU)
gbs JUDGE
Whether Speaking/Reasoned Yes
Whether Reportable Yes
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