FAO-3302-2017 -1-
IN THE HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH
FAO-3302-2017 (OM)
Date of Decision: 16.5.2017
Satgur Singh
….Appellant.
Versus
Vir Pal Kaur and another
…Respondents.
CORAM:- HON’BLE MR. JUSTICE AJAY KUMAR MITTAL.
HON’BLE MR. JUSTICE HARINDER SINGH SIDHU.
PRESENT: Mr. Amit Kumar Walia, Advocate for the appellant.
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 son Harmandeep Singh, the appellant-husband has approached this
Court by way of instant appeal challenging the judgment dated 1.3.2017
passed by the Additional Civil Judge (Senior Division), Sangrur (exerising
the powers of Guardian Judge under the Guardian and Wards Act).
2. Put shortly, the facts necessary for adjudication of the instant
appeal as narrated therein may be noticed. The marriage of the appellant
with respondent No.1 was solemnized on 29.9.2006 at village Phalera,
Tehsil Sunam, District Sangrur as per Sikh rites by Anand Karaj ceremony.
From the said wedlock, a minor son, namely, Harmandeep Singh was born
on 10.7.2008. The appellant had a right to seek the custody of his minor
son being natural guardian and had no adverse interest to that of minor.
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Respondent No.1 was a short tampered lady and had left her matrimonial
home without any reason in December, 2008 along with the minor son. The
appellant took panchayat on 31.5.2009 to village Phalera but respondent
No.1 refused to join his company. She had also filed an application under
Section 125 of the Code of Criminal Procedure and the appellant had filed a
petition under Section 9 of the Hindu Marriage Act, 1955 (in short “1955
Act”). Lateron, the parties had effected a compromise and both the petitions
were withdrawn by the respective parties. Thereafter, respondent No.1
joined the company of the appellant and after living for about 15 days with
the appellant, she had left the matrimonial home. She had also levelled
allegations against the appellant and his family by moving an application
before the Senior Superintendent of Police, Sangrur. Again, a compromise
was effected between the parties and as per the said compromise,
respondent No.1 agreed to live separately from the appellant and to get
divorce and all the disputes were settled between them. The appellant and
respondent No.1 filed a joint petition under Section 13B of the 1955 Act but
the appellant backed out from the compromise and withdrew the said
petition. Respondent No.1 filed a petition under Section 13 of the 1955 Act
and during the pendency of the said petition, a compromise was effected
between the parties and the said petition was converted into a petition under
Section 13B of the 1955 Act. The said petition was allowed by the trial
court vide judgment and decree dated 4.4.2012 and the marriage between
the appellant and respondent No.1 was dissolved by a decree of divorce by
mutual consent. However, the parties could not make any settlement
regarding the future custody of the minor and the said issue was left open.
According to the appellant, respondent No.1 had no interest in the well
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being of the minor son and she was neither providing any maintenance nor
any education to him. The appellant being father of the minor had great
love and affection and wants to keep his custody with him as he had good
source of income and was doing the business of electronics. He requested
respondent No.1 to handover the custody of the minor but to no effect.
Accordingly, the appellant filed a petition under Section 25 of the Act
seeking custody of the minor. The said petition was resisted by respondent
No.1 by filing a written statement. Besides raising various preliminary
objections, it was pleaded that the appellant was a man of bad habits and
used to give beatings to respondent No.1. The appellant filed a petition
under Section 9 of the 1955 Act whereas respondent No.1 filed a petition
under Section 125 of the Code of Criminal Procedure but lateron both the
petitions were withdrawn on account of compromise having been arrived at
between the parties on 31.10.2009. Respondent No.1 along with the minor
son joined the company of the appellant but after few days, the appellant
turned out of respondent No.1 from the matrimonial home along with the
minor son. It was further pleaded that due to intervention of the
respectables, the parties had agreed to get the divorce by mutual consent and
filed a petition under Section 13B of the 1955 Act for a decree of divorce by
mutual consent. However, the appellant backed out from the compromise
and withdrew the said petition. Thereafter, respondent No.1 filed a
petition under Section 13 of the 1955 Act and during the pendency of the
said petition, a compromise was effected between the parties and all the
claims were settled. As per the compromise, the minor son was to reside
with respondent No.1. The said petition was converted into a joint petition
under Section 13B of the 1955 Act on the basis of the said compromise.
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The parties had got recorded their respective statements of first motion on
24.9.2011 and the second motion on 30.3.2012. Both the parties had got
solemnized their second marriage. The future of minor son was secure in
the hands of respondent No.1. The other averments made in the petition
were denied and a prayer for dismissal of the same was made. From the
pleadings of the parties, the trial court framed the following issues:-
1. Whether the petitioner is entitled to the custody of
minor son, Harmandeep Singh from respondent
no.1 Virpal Kaur? OPP
2. Whether petitioner has no cause of action and
locus standi to file the present petition? OPR
3. Whether the petitioner has not come to the Court
with clean hands and is guilty of suppressing the
true and material facts from the Court? OPR
4. Whether the petition is not maintainable in the
present form? OPR
5. Whether the petitioner is estopped from filing the
present petition by his own act and conduct? OPR
6. Relief.
3. In support of his case, the appellant besides tendering
documents Ex.P1 to Ex.P7, examined himself as PW1, his father Ajaib
Singh as PW2 and Inderpal as PW3. On the other hand, respondent No.1
examined herself as RW2, Baldev Singh alias Billu as RW1, Lakhwinder
Singh alias Lakha as RW3, Mohinder Singh as RW4 and tendered
documents Ex.R1 to Ex.R15 into her evidence.
4. The trial court on appreciation of evidence led by the parties
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dismissed the petition vide judgment dated 1.3.2017 holding that the minor
aged about 9 years was separate from the appellant from the age of 2 years
and could not even recognize his father. Further, the welfare of the minor at
the hands of respondent No.1 was paramount consideration. The father-
appellant was not held entitled to the custody of the minor. Hence, the
present appeal.
5. Learned counsel for the appellant submitted that the appellant
being the father of the minor had every right to claim the custody of the
minor. It was further submitted that after the age of 5 years of the minor,
the custody should have been given to the appellant.
6. After hearing learned counsel for the appellant, we do not find
any merit in the appeal.
7. 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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FAO-3302-2017 -6-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. 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 issue of custody of minor, 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. In other words, no doubt, all
other factors cannot be said to be 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.
9. No doubt, the father of the minors 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.
10. In the present case, the minor was separate from his father since
he was of the age of 2 years and could not even recognize his father.
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Admittedly, the appellant had never gone to meet the child or bring
respondent No.1 back after his separation. The trial court had held that the
wish of the minor child to stay with his mother and his welfare in the hands
of respondent No.1 was paramount consideration. It was further recorded
that the overall welfare including moral and ethical welfare of the child was
to give the custody of the minor to his mother. The appellant had miserably
failed to prove that welfare of the son 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 No.1 when there were no specific reasons or
evidence produced on behalf of the appellant to do so.
11. The trial Court on appreciation of evidence had rightly
concluded that the welfare of the son was with the mother by recording the
following findings:-
“27. Further, with regard to the arguments of learned
counsel for petitioner that minor child is not safe in the
hands of the respondent who has given birth to one
daughter from the loins of Lakhwinder Singh who is only
hand to mouth and is having no interest in the welfare of
child, is not tenable as over all welfare including moral
and ethical welfare of the child lies with the custody of
minor with his mother. The minor child who is of the
age of 9 years and is studying at village Ganduan and is
separate from his father since he was of the age of 2
years and could not even recognize his father would not
be attached with his father and rather the petitioner had
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FAO-3302-2017 -8-himself admitted the fact that after his separation from
the respondent he had never gone to meet the child or
bring the respondent back. The wish of the minor child
being with his mother and his welfare in the hands of the
respondent is paramount consideration and in the totality
of the circumstances, no doubt the Court has to consider
the right of father as guardian but if the custody of father
cannot promote the welfare of child, he may be refused
such guardianship. As such, this Court holds that the
petitioner is not entitled to the custody of minor child,
Harmandeep Singh who is well attached with his mother
and second father Lakhwinder Singh.”
12. In view of the above, when the appellant has not been able to
dispel the findings recorded by the trial court arrived at on appreciation of
evidence produced on record, we find no justification to interfere in the
judgment of the trial court dated 1.3.2017. Accordingly, the appeal being
devoid of any merit is hereby dismissed.
(AJAY KUMAR MITTAL)
JUDGE
May 16, 2017 (HARINDER SINGH SIDHU)
gbs JUDGE
Whether Speaking/Reasoned Yes
Whether Reportable Yes
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