Sonal vs Deepak Khanna And Another on 13 July, 2017

Reserved

IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL

Appeal from Order No. 625 of 2016

Sonal ……. Appellant
Versus

Deepak Khanna and another ………. Respondents

Present: Mr. Mohd. Safdar, Advocate for the appellant.
Mr. V.K. Guglani, Advocate for the respondents.

Coram:- Hon’ble Rajiv Sharma, J.

Hon’ble Sharad Kumar Sharma, J.

Reserved on 30.06.2017
Delivered on : 13.07.2017

Per – Hon’ble Sharad Kumar Sharma, J.

This is an appellant (wife’s) appeal from order
wherein she has challenged the order dated 16.08.2016 passed
by the Additional Judge, Family Court, Roorkee, District
Haridwar, the said Court while exercising powers under Section
10 read with Section 25 of the Guardians and Wards Act has
rejected the application and thereby decline to grant the custody
of the minor son Arav to the appellant.

2. The appellant has filed an application before the
court below on 08.10.2016, wherein she has prayed for the
custody of the minor child namely Arav. The plaint allegations
are that as a consequence of the wedlock, son Arav was born,
who at the time of institution of the proceedings under Section
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10 read with Section 25 of the Guardians and Wards Act was of
only 4 years of age. The appellant case is that she being the
mother and natural guardian has a prime concern of well being
of the child. The custody of the child with the respondent is not
safe because the respondent is keeping the custody of the child
forcefully and gives inhumanly treatment to him.

3. The marriage between the appellant and the
respondent no. 1 was solemnized on 15.01.2011, and according
to the appellant her father who is an employee of ONGC, had
friendship with one Mr. Surender Khanna, who is the brother-in-
law of Deepak Khanna (respondent no. 1 herein). Often now and
then appellant used to visit Dehradun and consequently they
developed affinity love and the marriage was settled. At the
time when the marriage was being settled it was projected by the
respondent no. 1 that he has holding a degree of M.Com and
MBA and is working in a Multi National Company and is
earning a sum of Rs. 35,000/- per month. The sister of
respondent no. 1 namely Babli and his brother-in-law Surender
Khanna by deceitfully taking appellant into confidence making
her belief about of educational status of respondent no. 1 laid
down the conspiracy and got the marriage solemnized.

4. She came up with the case that immediately after
couple of days after the marriage, she was being harassed by the
in-laws including respondent no. 1 and they were raising a
demand of Rs. 10.00 lakhs. In the application, she contended
that Arav (respondent no. 2 herein) was born on 25.12.2011 and
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on account of cruelty and the continuous family feud which
persisted since 2012-2013 the respondent no. 1 often used to
beat respondent no. 2 due to which at times he has suffered
injuries. Hence in the application she prayed for that the future
of the child would be best safeguarded by the mother who is the
natural guardian. Besides this, she has an independent source of
earning coupled with the fact that the family surrounding of the
respondent no. 1 is not conducive wherein the interest of the
child could be safeguarded in the absence of there being care and
attention paid to him.

5. This application was opposed by the respondent no. 1
by filing an objection. He made a vague denial to the grounds
taken by the appellant for seeking custody of the child.
However, the learned family court by the impugned order has
rejected the application by its judgment dated 16.08.2016 hence
the instant appeal. On a precise reading of the grounds taken in
the objection by respondent no. 1 was two folds:-

i) That she i.e. the appellant by her application to the police
officials had admitted her mistakes and;

ii) She assured not to repeat the same in future.

6. Besides this, she has also taken a ground that in
collateral proceeding under the Domestic Violence Act, the
application of the appellant for getting an interim custody of
Arav has been rejected on 30.10.2016. The Criminal Case No.
15 of 2016, challenging the order dated 03.10.2016 under the
Domestic Violence Act the court declined the custody under
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Section 23 and the same has been affirmed by the appellate court
by dismissing the appeal.

7. On reading of the objection, it is apparent that
without alleging about the veracity of the application or the
objection, the respondent no. 1 had tried to attract the impact of
the judgment passed in the proceeding under Section 23 of the
Domestic Violence Act. According to the respondent, the affect
of the Domestic Violence Act proceedings will be that it would
override the proceedings under the Guardians and Wards Act.
He pleads that the denial of custody under Section 23 of the
Domestic Violence Act would automatically ought to have
resulted into rejection of the application under Section 25 of the
Guardians and Wards Act.

8. It is this contention which has been taken into
consideration by the court below while rejecting the application
filed by the mother (appellant herein) by the impugned order
dated 16.08.2016. The judgment impugned cannot be sustained
for the following reasons:-

i) The legislature in its wisdom has framed two independent
Acts i.e. Guardians and Wards Act, 1980 and Protection of
Women from Domestic Violence Act, 2005. These two
legislatures have got a different object to be achieved.
Since the purpose and intention of the two legislatures
being different in accordance with the respective SORs,
they will not in any manner override the proceedings
provided under either of the Acts.

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ii) Under Protection of Women from Domestic Violence Act,
2005, the prime concern is to have a effective protection
of the rights of the women as guaranteed under the
Constitution to protect her victimization from the violence
occurring within the family, while on the other hand under
the Guardians and Wards Act, it intends to impart
responsibility on the courts to ensure the protect the
welfare of the child which is of prime consideration for the
courts while they considering the application under Section

25.

iii) The intention of Section 23 under the Domestic Violence
Act, it only intends to provide custody of the child only
when there is proceeding pending under the Act. This
measure is only contemplated as an interim measure only
and this is subject to the commission of Domestic
Violence. While on the other hand, Section 25 of the
Guardians and Wards Act is not a situation contemplating
an interim custody rather it only intends to take away a
ward from the custody of either of the spouse or the
guardian and taking into consideration the welfare of the
child return it to the custody with whom the courts feels to
be in the interest of the child. Thus, the purpose is entirely
different.

iv) At the time when the impugned order was passed as a
matter of fact there was no order existing under Section 23
of the Domestic Violence Act merely because of pendency
of application under Section 23 will not in it self lead to a
conclusion of suspending the orders to be passed on the
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application under Section 25 of the Guardians and Wards
Act. Because in the objection taken by the respondent, its
only to the effect that for an identical relief, the application
under Section 23 is pending. Hence this reasoning assigned
by the court below, the order is not sustainable.

09. When the case was taken up today i.e. on 30.06.2017
the parties to the appeal (excluding respondent no. 2) appeared
before the Court in person and they were granted permission by
the Court to place their own versions. Apart from this, also hard
the respective counsels.

10. In the presence of the counsels, the appellant
submitted that she is working with a company called as Cox
Kings and she is earning a sum of Rs. 30,000/- per month. On
being placed with the identical question to the husband as to how
he is subsisting himself, he informed that he is taking private
tuitions and is earning a sum of Rs. 30,000/- but there was no
proof attached to it to show the earnings. Thus the specific
statement of the appellant that she is engaged with Cox Kings
Company is to be accepted as against the statement of the
respondent that he is taking private tuitions which cannot be
established by any evidence. On being asked as to whether he is
filing his income tax return, he gave an evasive answer with no
specific assertion about the remittance of income tax and filing
of returns.

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11. As already observed above, the pendency of
application under Section 23 under the Domestic Violence Act
cannot create an embargo for consideration the application under
Section 25 of the Guardians and Wards Act, hence the reason
assigned is absolutely untenable. Learned counsel for the
respondent has placed reliance on annexure 3 to the counter
affidavit on the basis of which he contends it to be a complaint
submitted by the appellant before the SHO, Kotwali,
Bulandsehar, Uttarpradesh, he places reliance on the said letter
on the ground that the said letter projects an admission made by
the appellant to the atrocities caused by her to the family of the
respondent no. 1, where she has expressed her anguish and has
shown her willingness to live together. No reliance can be placed
on the same for the reason this is the letter which has been sent
to the Superintendent of Police through a speed post which could
be sent by any person under the name of anyone so it cannot be
said that the letter was sent by the appellant as it bears no
endorsement of receipt.

12. Apart from it, the signatures appearing at the bottom
of the page seems to be interpolated the reason being that there
exists no signature at the place ‘bhavdeya’ it was interpolated as
signatures finds placed at a different part of the complaint. Apart
from it, the said complaint does not bear any endorsement of
receipt by the Superintendent of Police, Bulandsehar, UP.

13. The view taken by the court below that since the
child has lived for one year with the respondent no. 1 in itself
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would not be sufficient to deny the custody of a minor child who
needs care and affection of both the parents but the level of care
and affection of which a child expects is more important that of
anyone else.

14. The finding pertaining to the allegations and counter
allegations by the appellant and respondent no. 1 is not an issue
is to be decided or taken into consideration while deciding the
application under Section 25 of the Guardians and Wards Act.
Thus we feel that the impugned order dated 16.08.2016 is
absolutely perverse and without application of mind and
contrary to the records and based on the fact which do not fall
within the ambit of Section 25. Thus the order dated
16.08.2016 deserves to be quashed.

15. The application paper no. 6A filed by the appellant is
allowed, the interim custody of minor Arav is granted to the
appellant who being the mother would be best guardian of the
minor, till the proceedings under Section 25 is finally decided.
However, looking to the emotional affinity of the father he is
granted visiting nights to meet the child from 2 pm to 4 pm in
court premises on each date fixed by the court below.

16. This court further feels to be appropriate to request
the court below to decide the main proceedings under Section 10
read with Section 25 of Guardians and Wards Act without
granting unnecessary adjournments, preferably within a period
of 4 months from service of certified copy of the order.

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17. Registry is directed to send the copy of this order to
the court below for necessary compliance and ensuring safety of
child during visiting hours as granted above.

18. Appeal stands allowed subject to above observations.

(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.)
13.07.2017
Mahinder/

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