Manu Goyal vs Smt. Aditi Goel on 18 July, 2017

IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL

First Appeal No. 29 of 2016
Manu Goyal S/o Sri Anand Kumar Goyal …..Appellant

Versus
Smt. Aditi Goel D/o Sri Ashok Singhal ……Respondent

Present:
Mr. Piyush Garg, Advocate for the appellant.
Mr. Lalit Sharma, Advocate for the respondent.

The Relief sought by the present appeal is to set aside/quash the impugned
judgment and decree dated 5.3.2016 passed by Principal Judge Family Court,
Dehradun in OS No. 350 of 2014, Manu Goel vs. Aditi Goel, whereby the petition
filed by the appellant under section 7 and 25 of the Guardianship and Ward Act r/w
Sections 6 13 of Hindu Minority and Guardianship Act has been dismissed and
custody of minor child has been given to the respondent.

With
First Appeal No. 30 of 2016
Manu Goyal ……Appellant
Versus
Smt. Aditi Goel …… Respondent.
Present:
Mr. Piyush Garg, Advocate for the appellant.
Mr. Lalit Sharma, Advocate for the respondent.

The Relief sought by the present appeal is to set aside/quash the impugned
judgment and decree dated 5.3.2016 passed by Principal Judge Family Court,
Dehradun in OS No. 350 of 2014 Manu Goel vs. Aditi Goel, whereby counter claim
filed by the appellant to the application filed by the respondent under Section 26 of
the Hindu Marriage seeking permanent alimony has been dismissed and custody of
minor child has been given to the respondent.

First Appeal No. 27 of 2016
Manu Goyal S/o Sri Anand Kumar Goyal …..Appellant

Versus
Smt. Aditi Goel D/o Sri Ashok Singhal ……Respondent

Present:
Mr. Piyush Garg, Advocate for the appellant.
Mr. Lalit Sharma, Advocate for the respondent.

The Relief sought by the present appeal is to set aside/quash the part of
judgment and decree dated 5.3.2016 passed by Principal Judge Family Court,
Dehradun in OS No. 350 of 2014, whereby application filed by the respondent under
Section 25 of the Hindu Marriage Act seeking permanent alimony has been allowed
and an exorbitant sum of Rs. 13 Lacs has been directed to be paid as one time
permanent alimony.
2

With
First Appeal No. 28 of 2016
Manu Goyal S/o Sri Anand Kumar Goyal …..Appellant

Versus
Smt. Aditi Goel D/o Sri Ashok Singhal ……Respondent

Present:
Mr. Piyush Garg, Advocate for the appellant.
Mr. Lalit Sharma, Advocate for the respondent.

The Relief sought by the present appeal is to set aside/quash the that part of
judgment and decree dated 5.3.2016 passed by Principal Judge Family Court,
Dehradun in OS No. 350 of 2014, Manu Goel Vs. Aditi Goel, whereby application
filed by the respondent under Section 26 of the Hindu Marriage Act seeking
guardianship and custody of minor child has been allowed and custody of minor
child has been given to the respondent.

With
First Appeal No. 39 of 2016
Smt. Aditi Goyal …..Appellant

Versus
Mr. Manu Goyal ……Respondent

Present:
Mr. Lalit Sharma, Advocate for the appellant.
Mr. Piyush Garg, Advocate for the respondent.

The relief being sought by means of this appeal is that the impugned
judgment and decree dated 5.3.2016 passed by Principal Judge Family Court,
Dehradun in OS No. 350 of 2014, Manu Goel Vs. Aditi Goel, may be set aside and
the petition filed by the Respondent seeking divorce may be dismissed.

With
First Appeal No. 40 of 2016
Smt. Aditi Goyal …..Appellant

Versus
Mr. Manu Goyal ……Respondent

Present:
Mr. Lalit Sharma, Advocate for the appellant.
Mr. Piyush Garg, Advocate for the respondent.

The relief being sought by means of this appeal is that the impugned
judgment and decree dated 5.3.2016 passed by Principal Judge Family Court,
Dehradun in Guardian and Wards Act Case No. 19 of 2014, Manu Goel Vs. Aditi
Goel, may be set aside and the petition filed by the Respondent seeking custody of
child may be dismissed.
3

JUDGMENT

Coram: Hon’ble Rajiv Sharma, J.

Hon’ble Sharad Kumar Sharma, J.

Dated: 18th July, 2017

Per Hon’ble Sharad Kumar Sharma, J.

This is a Bunch of six Appeals, in which, the parties
are common and they are contesting almost for a common
issue arising out of the matrimony and offshoots of the
proceedings pertaining to the maintenance, guardianship,
dissolution of marriage, permanent alimony etc. Since, the
factual backdrop is common, this Court feels that this
common judgment would be deciding the controversy and
would be applicable in all the appeals, so far it relates to
different controversies and for reliefs in different statutes.

Brief facts and the pleadings between the parties as
involved in each appeal is being discussed separately.

1. First Appeal No. 29 of 2016
This appeal has been preferred by the appellant
questioning the validity of the order dated 5th March, 2016,
passed by the Principal Judge, Family Court in Original Suit
No. 350 of 2014, whereby his petition under Section 7 read
with Section 25 of the Guardians and Wards Act and Section
6 read with Section 13 of the Hindu Minority and
Guardianship Act as filed by Manu Goyal has been
dismissed and the custody of the minor child has been
given to the respondent wife.

Following facts are not in controversy that the
marriage between the parties to the appeal was solemnized
on 23rd November, 2008, at Panipat. Out of the wedlock, a
son named Paras was born on 24th August, 2009. According
4

to the appellant, at the time of the marriage, and, thereafter,
all love and affection were showered upon the respondent
wife, the appellant and his family members, but as per the
appellant, the respondent wife was suffering from the vices
of superiority complex syndrome. On account of the
aforesaid reason, she often used to misbehave and insult the
appellant in the presence of relatives and friends and even
used the abusive languages, which are not commonly used
in the relationship of husband and wife, being not a
language recognized in common parlance. When the
respondent got the knowledge that she has conceived and is
pregnant, she continued to live at Panipat just to ensure that
the delivery of the child takes place at Panipat itself.

But, all of a sudden, for the reasons best known, she in
April, 2009, during the pregnancy, when pregnancy was
only of five months old, she left for Kanpur, i.e. her parental
home and, the reason which was constituted for her
movement to Kanpur was, that living at Panipat just to give
birth to the child would not be possible for her. The
atrocities of the respondent was so intense that she never
even cared for the wellbeing of the small child who was
hardly two months of age after his birth on 23rd November,
2008. Taking the risk of traveling during the pregnancy of
five months was harmful for the mother as well as the child
in the womb.

The respondent was so much career oriented that she
even did not care for well being of the child and she
ventured out to build her career. When Paras was hardly of
four months of age, i.e. age when the maximum care is
required by the child from his mother.

5

Another cause for concern as projected by the
appellant was that the behavioral aspect of the respondent
was not acceptable by the family, because she used to talk to
unknown persons on mobile for hours together. On being
requested to mend her ways, she used to threaten the
appellant and his family member of dire consequences by
committing suicide and roping them in false case. A threat
of suicide will, in itself, amount to be a cruelty, because the
person to whom such threats are extended always remains
under a physiological pressure of anything happening
untoward.

It was also case of the husband that apart from
exercising atrocities against the husband had also declined
to cohabitate with the appellant and, hence, there was no
consummation of marriage for a considerable long time
which in itself, according the Section 13 of the Hindu
Marriage Act is sufficient ground for dissolving the
marriage because the foundation stone of marriage is its
consummation. In the absence of attainment of matrimonial
bliss continuance of relationship becomes difficult.

As per the husband case, under these circumstances,
and for artificial controversies, the respondent, on 8th
March, 2010, voluntarily on her own, deserted appellant the
in-laws and left the home. While leaving the house, she
parted with an information which was shocking to be heard
by the appellant that appellant is not the father of the son
Paras. No husband would be able to bear such a shock as
has been given by the respondent wife which, according to
the appellant, amounts to a cruelty.

When Paras was only 1-1/2 years of age and too
tender where predominately he requires all care and
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affection of the mother because she would be the best
person to take care of the minor at his or her tender age of
life. But, by the misunderstanding and the cumulative
action by way of several proceedings, which is being taken
by the husband against the wife and vice versa, she was
duressed to such an extent that she was forced to enter into
a settlement, before the Panchayat the appellant and the
respondent decided to separate themselves from their
matrimonial obligations, thus severing their relation.

On the basis of the settlement, a “written deed was
executed on 12th March, 2015”, whereby, it was decided that
the child will remain in the custody of wife, however, she
would be providing the visiting rights to the husband as
and when they agree to settle the meeting and it was further
decided that in view of the settlement dated 12th Mach,
2015, and dissolution of marriage was agreed and the
appellant was to pay a sum of Rs. 14 lacs by way of
permanent alimony as contemplated under Section 25 of the
Hindu Marriage Act.

Consequently, the said settlement of 12th March, 2015,
according to the appellant, was signed by the parties and
relatives and it was candidly accepted by them whereby the
inter se relationship between the appellant and the
respondent stood settled in terms of the settlement dated
12th March, 2015.

Based on the settlement dated 12th March, 2015, both
the parties jointly moved an application before the Family
Court by invoking Section 13-B of the Hindu Marriage Act
for settlement of the dispute and dissolving the marriage
under the Act by mutual consent and, thus, the settlement
dated 12th March, 2015, was placed before the Court as it
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was within the ambit of Section 13-B for mutual decree of
divorce. At the time of institution of the proceedings under
Section 13-B of the Act, according to the husband, on the
date of first appearance when the proceedings were
instituted, a sum of Rs.1,00,000/-, was paid to through
cheque to the respondent on 27th April, 2011, and all jewelry
and items of dowry which are said to have been mutually
exchanged at the time of marriage, its inventory was
prepared and was separately handed over.

According to the settlement dated 12th March, 2015,
since it was agreement executed whereby the meeting rights
of the appellant with the child was reserved, under the
terms of the settlement, but fact remains that copy of
settlement was not provided to the appellant.

The respondent wife, according to the husband, often
created impediments to ensure that the meeting rights as
settled by the settlement dated 12th March, 2015, amongst
themselves, so that same may not mature amongst
themselves.

Despite the aforesaid backdrop, the respondent wife
deserted the appellant and have gone to unknown place
without even informing the appellant.

Not only that there had chanced desertion but there
was a step further taken by the respondent wife, who in
collusion with her father had sold their accommodation in
Kanpur vide sale deed dated 29th June, 2011, and no
information whatsoever about execution of the sale deed or
with regard to the whereabouts of the respondent was given
to the appellant by any mode whatsoever. Although, at
that time, the proceedings under Section 13-B was pending
consideration.

8

The fact remains that compromise dated 12th March,
2015, was acted upon by the payment of the Cheque of Rs.
1,00,000/- by the appellant and its acceptance by the
respondent and remaining part ought to be settled at the
time of the final adjudication. The appellant moved an
application before the Court below praying for that
appropriate direction may be issued to the respondent,
herein, to permit the meeting rights with Paras which was
part of the settlement dated 12th March, 2015.

The conduct and intention of the respondent was
dubious because in accordance with the evidence on record
and as per the pleadings raised by the appellant was to the
effect that despite the fact that she has left Kanpur on 11th
June, 2011, but still she continues to show herself to be
resident of Kanpur.

In the proceedings before the Court below under
Hindu Marriage Act, it has been normally witnessed that
the Family Court makes an effort to settle the score by
calling upon the parties to participate in the mediation
proceedings as provided under law. Accordingly, the
Family Court called upon the parties to the appeal to
participate in the mediation in the Mediation Centre but the
respondent had not appeared for mediation on 15th
September, 29th September and of 3rd November failed.

On one hand, she was not trying to settle the dispute
and on the other, she was not willing to participate in the
proceedings of mutual settlement simply with an intention
to harass the appellant and his family members so as to
make her illegal demand being accepted by the parents of
the appellant. The proceedings before the Mediation Centre
was contested by the respondent despite the fact that the
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appellant was having the knowledge and whereabouts of
the child Paras but no details of the whereabouts of the
Child was given in the pleadings.

It is a case of the appellant that on the basis of the
settlement dated 12th March, 2015, since he has already
remitted the sum of Rs. 1,00,000/- before the Court below
when the proceeding under Section 13-B was initiated
which was accepted by respondent without objection, he on
the next dated fixed, had appeared before the Court below
on 12/12/2012, wherein he submitted an application that he
is ready and willing to remit back the remaining
Rs. 13,00,000/- by virtue of draft payable to HDFC Bank,
Kanpur. He submitted an application by way of an
objection to the application filed by the respondent but
despite of it, according to the appellant, respondent has not
accepted the amount and wanted to engage the appellant in
litigation. Since, draft was already prepared and the case
was fixed before the Court below for the next date, the
husband’s case is that he got the validity of draft of
13,00,000/- extended, but still wife did not appear and
participate in the proceedings.

According to the appellant, the wife is working in
Usha International Limited and, for the purpose of getting
custody of the child, he has filed the proceedings under
Section 7 read with Section 25 of the Guardians and Wards
Act before the District Judge, Guargon which is pending.

The Family Court at Guargon in the proceedings
under the Guardians and Wards Act had fixed number of
dates but the respondent has not appeared and had not
participated in the proceedings. On the one hand, she is not
contesting the proceeding, while, according to the husband,
10

on the other hand, she is extending threats that she will
engage entire family into litigation by sending them in jail
by lodging false criminal proceedings against them. Since
the situation led to a stage where there was no possibility
resilement of the dispute, marriage had become
irretrievable and the appellant had no option but to
withdraw Section 13-B proceedings on 23rd April, 2013. The
ordersheet to the proceedings shows that the Court tried to
solicit her appearance but she avoided. Ever since March
2010, the respondent deserted the appellant and she did not
permit the appellant to meet his son Paras.

As the child was with the respondent, and the
appellant wanted to have his custody, being the father, on
9th October, 2012, he filed the proceedings before the Family
Court Gurgaon, wherein he has prayed for the custody but
the Court vide its order dated 28th March, 2012, according to
the husband, husband was granted the meeting rights on
every second and fourth Saturday between 12:00 to 6:00
p.m.. There was certain other conditions laid down that the
father has to take and drop the child on every Saturday as
has been fixed by the Court, it was left open to father take
help of the Police, if need arises.

The order as rendered in a dispute between the parties
before Punjab and Haryana High Court, dated 28th October,
2013, had granted the meeting right which was not followed
despite the fact that the respondent had to file Writ Petition
No. 7698 of 2013 which was dismissed on 13th December,
2013, but still she was so adamant that she did not comply
with the order dated 28th April, 2013, as the meeting rights
granted by the Court below was not followed which in itself
amount to cruelty. The spree of harassment at the hands of
11

the respondent increased to such an extent that she lodged a
criminal proceedings against the husband under Section 406
I.P.C., in which, ultimately, he was arrested and later
released on bail.

Under the aforesaid circumstances, when the Section
13-B did not succeed and the respondent was making all the
efforts to avoid the appellant to have an opportunity to
meet child and to have the custody for the meeting rights of
the child, the appellant had no option that since all these
actions were resulting into cruelty was within the ambit of
Section 13 of the Act, he initiated proceedings and under
Section 13 of the Hindu Marriage Act before the District
Judge, Panipat, seeking the decree of dissolution of
marriage.

The respondent filed a Transfer Application before the
Hon’ble Apex Court for transferring divorce proceedings
from the Court of District Judge, Panipat, and, thus, both
the proceedings under Section 13 of the Hindu Marriage Act
as well as proceedings under Section 7 read with 25 of the
Guardian and Wards Act read with Sections 6 and 13 of the
Hindu Minority and Guardians and Wards Act was
transferred to the Family Court, Dehradun. Where it was
re-numbered as Suit No. 350 of 2014 and the proceedings
under the Guardians and Wards Act registered as Original
Suit No. 19 of 2014.

The basis of the proceedings under Section 13 which
was filed was on the ground of desertion and cruelty and
the proceedings under the Guardians and Wards Act was
filed on the ground that looking to the status of the spouses
the welfare of the child could be best safeguarded with the
appellant, because he had the sources and resources
12

available with himself by virtue of which the academic of
the child could be maintained properly and future be
safeguarded.

While, the case was pending consideration before the
Family Court on its transfer from the Apex Court, there was
another application filed being the Application under
Section 26 of the Hindu Marriage Act by the respondent
seeking the interim custody of the child. The application
under Section 26 filed by the respondent wife in the
proceedings under Section 13 of the Hindu Marriage Act,
the appellant had filed his counter claim to the application
under Section 26 and claimed to retain custody of the child
on the grounds narrated in the application.

To harass, the husband, she also filed an application
under Section 25 for the grant of permanent alimony and
disposal of property under Section 27 of the Hindu
Marriage Act, i.e. for the settlement of goods which was
given to the husband and wife during the marriage period
and seeking permanent alimony of all the Stridhan given to
her at the time of marriage. All the applications under
Sections 25, 26 and 27 filed by the respondent was opposed
by the appellant by filing independent objections to the said
applications.

The respondent had further filed further an
application under Section 125 of the Cr.P.C. seeking
maintenance which at the time of filing of the application
under Sections 25, 26 and 27 of the Hindu Marriage Act was
pending consideration.

The application under Section 24 was decided by the
Family Court by its order dated 29th February, 2016. The
attitude of the respondent, according to the appellant, was
13

so acrimonious that she also instituted a case under Section
406 I.P.C., for which, the appellant had to file C-482
application before this Hon’ble Court, being C-482 No. 415
of 2014. The C-482 No. 415 of 2014 application was allowed
by this Hon’ble High Court by holding that no action could
be taken under Section 406 I.P.C. for the reason that all the
articles which was said to have been exchanged during the
married period, since has been returned, hence, the
summoning order passed in Complaint Case under Section
406 I.P.C. was quashed by the Hon’ble High Court on 8th
December, 2014.

The order of this Court dated 8th December, 2014
passed in C482 No. 415 of 2014 was challenged by the
respondent before the Apex Court. The Apex Court too
declined to interfere into the order passed by this Court and
dismissed the SLP on 10th April, 2014.

From the aforesaid, it is quite clear that the
respondent has left no stone unturned to harass the
appellant and his family members by putting them in such a
situation that they were engaged in multifarious litigations
in various Courts, and according to the appellant, the sole
intention behind it was to ensure that the principle
proceedings under Section 13 may not be decided finally
and to attain the objective of delaying the proceedings
under Section 13, the records revealed that number of
frivolous applications were filed by the respondent so that
Section 13 may linger on.

On perusal of the ordersheet, it shows that the Family
Court ceased with the proceedings under Section 13 had
fixing number of dates for cross examination of the
respondent, but she avoided to participate in the
14

proceedings, at last, the Family Court decided to
consolidate all the aforesaid cases by a common judgment
dated 5th March, 2016, which is now being impugned in the
instant appeals.

In the proceedings before the Court below, as would
revealed from the order dated 5th March, 2016, the Court
while dealing with the issue of cruelty has held that the
records and pleadings show that the respondent wife has
been entering into unfettered steps to ensure the delay in
the proceedings and to inflict cruelty for no justified
reasons, as such, the learned Family Court decreed Section
13 filed by the appellant and dissolve the marriage between
the parties by a decree of divorce. The said decree of
divorce, as granted, has been challenged in First Appeal No.
39 of 2016 filed by Smt. Aditi Goel.

As already stated that the appellant had filed an
application under Section 7 read with Section 25 of the
Guardian and Wards Act and Section 6 read with Section 13
of the Hindu Minority and Guardianship and Wards Act.
However, the Court below did not decide the said
application filed by the appellant and held that the copy of
the judgment passed in Original Suit No. 350 of 2014 may be
placed on record in the Case No. 19 of 2014 under Section 7
read with Section 25 of the Guardians and Wards Act.

Proceedings under Section 13 and those the
proceedings under Section 7 read with Section 25 are
absolutely independent and under a different statute. The
proceedings under the Guardians and Wards Act which
was registered as Case No. 19 of 2014 was to be decided
finally and independently by the Court below. Although
for deciding the said controversy pertaining to the
15

guardianship, the learned Family Court did frame an issue,
being issue No 5. Issue No. 5 is quoted hereunder :-

“5. dkSu i{k vO;Ld iq ek0 ikjl dh vfHkj{kk ikus dk vf/kdkjh gS”

While deciding the Issue No. 5 by the judgment dated
5th March, 2016, no finding or much less plausible finding
has been recorded by the Court on issue No. 5 and the same
has been rejected clandestinely without assigning any
reason and instead of granting the custody has confined the
finding with regard to the meeting rights.

While deciding issue No. 5, which is the question
under consideration in the instant appeal, the Court below
erred in law by failing to appreciate that the appellant too
happens to be the natural guardian and has got a right over
his son Paras, who by the time of issue No. 5 was decided,
that his son was over five years of age and thus, husband’s
contention was that he has a right of custody of the child.

The intention and purpose under law for Section 7
read with 25 of Guardians and Wards Act and that with
Section 26 of the Hindu Marriage Act, there always happens
to be a different and independent intention. Section 26 of
Hindu Marriage Act only deals with the situation where the
proceedings under the Act itself is pending and interim
custody is to be granted. Whereas, Section 7 read with
Section 25 of the Guardians and Wards Act deals with the
permanent custody of a child and its veracity as to under a
given set of circumstances to whom it has been granted.

While, deciding the issue No. 5, wherein, the Court
was also ceased with the case under the Guardians and
Wards Act, being Case No. 19 of 2014, has erred at law by
not considering it as to be the independent case while
16

deciding it alongwith Case No. 350 of 2014, under Section
13 of the Hindu Marriage Act.

There is another anomaly which has been committed
by the Family Court. This Court feels that as a matter of fact,
issue which was formulated by Court below, as a matter of
fact, was an issue pertaining to Section 26 of the Hindu
Marriage Act and in relation to the counter claim filed by
the appellant seeking custody of the child. Thus, it would be
treated that as a matter of fact, Case No. 19 of 2014 was not
at all adjudicated by independent application of mind.

The Family Court ought to have taken into
consideration the impact of the withdrawal of the Petition
under Section 13-B where the parties have agreed to the
manner in which the matrimonial relationship and the
relationship with regard to the custody of the child was to
be governed. The Family Court erred by not considering
the conduct of the respondent with regard to the breach of
the terms of the settlement dated 12th March, 2015. For the
custody of the child, no doubt, normally precedence laid
down that the same has to be with the mother so far as the
child is infant below five years of age but on crossing the
barrier of the said age, it is always a prerogative of the
Court to consider the circumstances in each case
independently and to determine the welfare of the child and
with regard to the fact as to whom the custody is to be
given.

In the absence of there being any finding recorded in
that regard in issue No. 5, this appeal which relates to
finding on proceedings under Section 7 and 25 read with
Section 6 and 13 of the Hindu Minority and Guardianship.

17

While, deciding the issue no finding has been
recorded by the Family Court with regard to the welfare of
the child as that is to play an important role rather than the
wishes of the spouses contesting the proceedings.

The Family Court has gone waivered by not
correlating the claim and counter claim of the custody of the
child, vis-à-vis the provisions of Guardians and Wards Act
and Hindu Minority and Guardianship Act.

The case of the appellant is that the findings of the
Family Court is perverse as no rationale has been attached
by the Court below as to why the welfare of the child would
be best by placing the child into custody of respondent.
This finding is absolutely perverse because the Family
Court has not made any effort to establish the same by
considering the evidences adduced by the parties.

There has to be some sensitivity attached to the
proceedings of this nature. Being a lady, she cannot be
permitted to take advantage of the legislative protection
granted to her. Once she has settled the controversy and
has partly acted upon it by accepting the money and
thereby declining to participate in the proceedings and,
consequently, to the meeting rights, it would amount that
the respondent was an opportunist in her temperament.

According to the pleadings, it also shows that right
from the time when the child was 1-1/2 years of age, the
respondent has left child at Dehradun in the custody of
someone else and she herself was serving at Guargon.

Though, an absolute perverse finding has been
recorded by the Court below, in relation to the custody of
guardianship of the child, the same cannot be sustained.

18

But despite of the anomaly in the judgment, this Court
while exercising its appellate power in wider interest of
settling dispute finally. But looking to the settlement dated
12/03/2015, the guardianship would remain with mother,
but the visiting rights as granted and agreed by parties will
continue, as per settlement dated 12/03/2015, on every
second and fourth Saturday between 12:00 noon to 6:00 p.m.
This arrangement to continue till child attains majority.
Thus the appeal is dismissed subject to observations made
above.

2. Appel No. 30 of 2016
In this appeal, the factual backdrop is almost identical
to the factual backdrop as referred in Appeal No. 29 of 2016,
hence, for the purpose of brevity, it is not repeated.

In the appeal, in question, a limited issue which was
decided was the counter claim filed by the appellant to the
application filed by the respondent to the application under
Section 26 of the Hindu Marriage Act. Almost the findings
of the issue would be covered by the findings recorded by
the Court below in its judgment dated 5th March, 2016, on
issue No. 5 which will be having an effect on the issue
pertaining to Section 7 read with Section 25 of Guardians
and Wards Act and Section 26 of the Hindu Marriage Act
seeking an interim custody and the counter claim in relation
thereto because if the counter claim is permitted by virtue of
the provisions contained under Section 23-A of the Hindu
Marriage At. Issue No. 5 framed by the Court reads as
under:

“5. dkSu i{k vO;Ld iq ek0 ikjl dh vfHkj{kk ikus dk vf/kdkjh gS”

19

Thus, the findings in relation to the present appeal,
too, would be governed by the findings as recorded by the
Court below in its judgment on issue No. 5 and also by this
judgment as rendered in Appeal No. 29 of 2016 which is the
only issue framed by the Court below while deciding the
cases after its consolidation under Order 4-A of the C.P.C.
Hence, this appeal too would be governed by the judgment
in Appeal No. 29 of 2016 and direction as given there. The
Appeal is dismissed. The matter as issue No. 5 since settled
by Appeal No. 29 of 2016, the issue of U/S 7 read with 25 of
the Guardians and Wards Act and U/S 26 of Hindu
Marriage Act is decided accordingly.

3. Appeal No. 27 of 2016
According to the cause title of this appeal which is an
offshoot of the original Suit No. 350 of 2014, Manu Goel Vs.
Aditi Goel in which the respondent has filed an application
under Section 25 of the Hindu Marriage Act seeking a
permanent alimony. For the said purpose, the learned
Family Court had framed an issue for consideration of the
alimony, being issue No. 3, which is quoted herein
“3. D;k foi{kh ;kph ls ,d eq”r Hkj.kiks’k.k jkf’k izkIr djus dh
vf/kdkfj.kh gS ”

In this issue, the responsibility which was given to the
Family Court was to decide as to what would be the
appropriate permanent alimony to be granted in an event if
the decree of divorce between the parties was to be
maintained. The learned Court below, while considering the
issue about the permanent alimony, has recorded the
finding that after making all the deductions to the monthly
income accruing to the appellant, his income comes down to
20

Rs.59,000/- p.m., whereas, on the other hand, the wife is
working in Uttarakhand University, where she is earning a
sum of Rs.17,400/- p.m.
Both the parties admit that there was a compromise
entered into when the principal settlement dated 12th
March, 2015, was entered on the basis of which proceeding
under Section 13-B for mutual divorce though it was filed
which was later on withdrawn. Acting on the said
compromise, the respondent admittedly has accepted Rs.1
lac issued through cheque to her. Meaning thereby, she has
taken a step forward by accepting partially permanent
alimony of Rs. 1 lac out of total settled alimony of Rs.14 lacs
and the findings have come forward in the proceedings that
the remaining Rs.13 lacs was agreed to be paid by the
appellant which he was willing to pay and he even got a
draft prepared when he participated in the proceedings
before the Family Court on a number of occasions. But the
same could not be paid to the respondent because she was
avoiding the proceedings. Thus, the learned Family Court,
while deciding Issue No. 3 pertaining to alimony under
Section 25 taking compromise paper 64-A as to be its basis
had given the maintenance as to be Rs.14 lacs as one time
payment and, thus, the same has been the basis for deciding
and direction was issued to pay Rs. 13 lacs, the balance
amount as alimony.

When the case was taken up, the Court felt that the
settlement as arrived at on 12th March, 2015, for giving
permanent alimony of Rs. 14 lacs was under the given set of
circumstances which was prevailing at that time and the
market inflation rate which was prevailing at that point of
21

time. The Court intended to increase the offer of settlement
of permanent alimony from 14 lacs to Rs.20 lacs.

The counsel for the appellant expressed that the
payment of Rs.20 lacs would be on higher side, on being
persuaded but counsel for both the parties in presence of
husband expressed willingness to settled their score finally
had agreed that if the amount of Rs.18 lacs is paid after
deducting the Rs. 1 lac which has already been paid and the
balance amount of Rs. 17 lacs is to be paid to the respondent
within a stipulated time, the respondent would candidly
accept, it as to be a settlement of permanent alimony for
settling the controversy, in particular under Section 25. AS
there is an acceptance by respondent No. 2, this Court feels
that it would meet the ends of justice if the appellant remits
a sum of Rs.17 lacs within a period of six months from
today positively to the respondent by way of drafts, and not
by any mode of differed payment.

Accordingly, this appeal is decided in terms of the
following directions:-

1. The parities and their counsel in presence of
husband agreed that the alimony as settled in the
compromise dated 12th March, 2015, be increased from
Rs.14 lacs to 18 lacs.

2. The amount of Rs. 18 lacs minus the payment
of Rs. 1 lac already made in the proceedings under
Section 13-B would be remitted by the appellant to the
respondent by bank draft only.

3. The appellant prays for that the period for
remittance may be fixed reasonably because of the
financial constraints, he would be requiring some time
to remit the amount. Thus, with the consent of the
22

parties, a period of six months is granted to the
appellant to either pay entire amount in installments
within the said period or by way of one time but not
beyond the period of six months from the date of the
judgment.

Accordingly, this appeal is partly allowed in terms of
the aforesaid directions. In the absence of non
remittance of the amount within a period of six months, it
would be open for the respondent to get the decree so far it
relates to permanent alimony executed through the
execution proceedings.

4. Appeal No. 28 of 2016
The issue in this appeal is identical to the issue in
Appeal No. 30 of 2016, where in the Appeal No. 30 of 2016
and Appeal No. 29 of 2016, the counter claim in the
proceedings under Section 26 has been decided while
deciding issue No. 5. In the instant appeal, Section 26 itself
is decided. Looking to the age of the child and looking to its
welfare, this Appeal is decided in terms and conditions on
which the Appeal No. 30 of 2016 has been decided by this
judgment.

Consequently, since it has come on record while
deciding Appeal No. 27 of 2016 that respondent is also an
earning member and has got financial resources with her
and the child since being minor, the best interest of the child
would be subserved, if the custody of the child is given to
the mother who ensures that she take all care and interest of
the child including that of imparting the best possible
education to the child to ensure a bright future.

23

It is an admitted case that the husband too happens to
be the natural father and guardian of the son. He too has got
emotion and love and affection for the child. Granting of
custody to mother is, keeping in mind the interest of the
child, the Court has to maintain the equity of emotions and
showering of love and affection of the parents of the child.
To meet the aforesaid objective, this Court feels that the
respondent should not have any hesitation in permitting the
meeting rights to be granted to the appellant to meet his
child in terms of the settlement dated 12th March, 2015,
which permitted the meeting on every second and fourth
Saturday between 12:00 to 6:00 p.m. or for any other
extended period as the parties unanimously agreed.

To protect the interest of the child, a direction is also
issued to SSP of the District to provide protection to the
parties and the child during the meeting hours as observed
above.

This appeal is accordingly partly allowed subject to
above observations which constitute to be part of decree in
light of judgment of Appeal Nos. 29 of 2016 and 30 of 2016.

5. Appeal No. 39 of 2016
This appeal has been preferred by the wife Smt. Aditi
Goel challenging the decree of divorce. This appeal has been
filed belatedly. Initially but after the condonation of delay, it
has been connected with the other appeals to be decided
together. Looking to the attitude and the intention of the
parties as observed in the above appeals, re-settlement of
the marriage is out of picture, marriage between them has
become irretrievable, the reason being that all efforts of
mediations have failed. Furthermore, because the parties
24

have agreed mutually to separate by the settlement of 12th
March, 2015, it shows that their mental bend of mind has
reached to a place where they want to settle their disputes
finally by giving divorce.

This Court feels that when settlement of 12th March,
2015, settled the meeting rights of the child and the alimony,
they were temperamentally agreed to separate and since
they have temperamentally agreed to separate as reflected
from the compromise of 12th March, 2015, and also because
of the fact that the wife has raised a claim for permanent
custody of the child and since she has raised the claim for
permanent alimony under Section 25 or any relief under
Section 27, which this Court feels could be only granted
when the parties agree to sever their relationship.

The Apex Court in the Case of B.P. Achala Anand Vs. S.
Appi Reddy and another reported in AIR 2005 SC 986, has held
in paragraph 29 as under :-

“29. The Hindu Marriage Act provides for divorce.
Section 15 indicates when divorced persons may marry again.
Section 25 enables the court to pass an order for providing
alimony and maintenance in favour of the divorced wife.
Section 27 enables the court to make provisions in the decree in
respect of a property that may belong to the wife or to both. On
the status of wife being terminated by a decree for divorce
under the Hindu Marriage Act, the rights of the divorced wife
seem to be cribbed, confined and cabined by the provisions of
the Hindu Marriage Act and to the rights available under
Sections 25 and 27 of the Act.”

The Apex Court in the Case of Balkrishna Ramchandra
Kadam Vs. Sangeeta Balkrishna Kadam reported in AIR 1997
SC 3562, has held in paragraph 10 and 13 as under :-

“10. On a plain reading of the Section it becomes
obvious that the Matrimonial Court trying any proceedings
under the Hindu Marriage Act, 1955, has the jurisdiction to
make such provision in the decree as it deems just and proper
with respect to any property presented “at or about the time of
marriage” which may belong jointly to both the husband and
the wife. This Section provides an alternate remedy to the wife
so that she can recover the property which is covered by the
25

Section, by including it in the decree in the matrimonial
proceeding, without, having to take recourse to the filing of a
separate Civil Suit and avoid further litigation. In the instant
case, we find that the wife had laid claim to certain items of
jewellery and in her deposition, she had mentioned the items of
jewellery which she had received “at or about the time of her
marriage” and, in particular, had mentioned the items of
jewellery which were given to her by her father at the time of
the marriage.

13. In our opinion, the courts have not gone into the
question in its correct perspective. The trial court proceeded to
negative the claim of the respondent-wife by holding that the
court had no jurisdiction to deal with the property rights of the
parties and gave no opportunity to the parties to lead evidence
in support of their respective claims. The finding of the trial
court clearly overlooked the provisions of Section 27 of the
Hindu Marriage Act which unmistakably vests the jurisdiction
in the court to pass an order, at the time of passing a decree in a
matrimonial cause, in respect of the property presented, at or
about the time of marriage, which may belong jointly to the
husband and the wife. The learned Single Judge also fell in
complete error while concurring with the view of the trial court
to say that there was no evidence on the record to show that the
property claimed by the wife was presented to her at the time
of her marriage. The learned Single Judge failed to take notice
of the deposition of the respondent in that behalf. Moreover,
the property, as contemplated by Section 27 is not the property
which is given to the wife at the time of marriage only. It
includes the property given to the parties before or after
marriage also, so long as it is relatable to the marriage. The
expression “at or about the time of marriage” has to be properly
construed to include such property which is given at the time
of marriage as also the property given before or after marriage
to the parties to become their “joint property”, implying thereby
that the property can be traced to have connection with the
marriage. All such property is covered by Section 27 of the
Act.”

This Court feels that in the light of the observations
made in the other connected appeals settling the custody of
the child, the alimony and the meeting rights of the child,
there survives nothing to be decided in this appeal where
the wife could give challenge to the decree of divorce
granted under Section 13 of the Hindu Marriage Act.

In that eventuality, the issue of divorce is no more in
debate and thus, this appeal, fails and is accordingly
dismissed subject to the observations made limiting the
26

relationship of the parties in the light of the observations
made in the other appeals.

Accordingly, the Appeal is dismissed.

6. Appeal No. 40 of 2016
This appeal is filed by the wife Aditi Goel. She
questions the decree dated 5th March, 2016, so far it relates
to the passing of the judgment in Guardians and Wards
Case No. 19 of 2014, whereby, the visitation rights have
been given to the respondent to take the child on every
second and fourth Saturday between 12:00 to 6:00 p.m.
This Court feels that in view of the findings recorded
in the other appeals, i.e. Appeal No. 29 of 2016, Appeal No.
30 of 2016 and Appeal No. 28 of 2016, in relation to the
proceedings under Section 7 read with Section 25 of the
Guardians and Wards Act and Hindu Minority and
Adoption Act and Section 26 of the Hindu Marriage Act,
when the interest of the wife vis-à-vis the interest of the
child is protected by granting permanent custody to the
mother for keeping the child and upbringing him, this
Court has to maintain the equities of affection between the
spouses towards their child. Permitting the visiting rights
for a limited time period, twice a month, is absolutely
appropriate as because at least the father and particularly
under the Hindu system of living too, father has a right to
express his concern and affection towards the child and
thus, this Court feels that nothing survives in this Appeal.

Appeal is, thus, dismissed subject to decisions in
connected Appeal Nos. 29 of 2016, 30 of 2016 and 28 of 2016.

During the course of argument of these appeals, the
learned counsel has placed reliance on the reports of Law
27

Commission of India, i.e. Report No. 257 of May, 2015,
which dealt with the Reforms in Guardianship and Custody
Laws in India. He also placed reliance on the Child Access
and Custody Guidelines alongwith Parenting Plan by Child
Rights Foundation which is an NGO.

On scrutiny of these Reports where these reports have
been forwarded to the various High Courts to be treated as
to be the guidelines, they do not become the Statute but still
they can be taken as to be the guiding force and since in its
letter and spirit, after taking into consideration of the
provision of Guardians and Wards Act, Hindu Minority
and Guardianship Act, Hindu Marriage Act and other such
laws in relation to other castes almost deal with the same
principle where the child interest is paramount. This Court
feels that the spirit as contemplated in the aforesaid reports
of the Law Commission has already been dealt by this Court
in the judgment. Hence specific reliance is not required to
be placed, since these reports are not statutory in nature.

In the light of the above observations and the
judgments passed in specific appeals, these bunch of
appeals are decided accordingly.

Thus the appeals are decided with the following
directions:-

1. Appeal No. 29 of 2016.

The custody of the child and its guardianship under
Section 7 read with Section 25 of the Guardians and Wards
Act is granted to the respondent (mother) subject to the
conditions of visiting rights as settled in the compromise
dated 12.03.2015. The appellant would be entitled to meet
the child on every 2nd and 4th Saturday between 12:00
noon to 6:00 pm. whereby the father will take the child from
the custody of the mother and will drop him back after the
28

closure of the visiting rights. Subject to the above
observations, the appeal is dismissed.

2. Appeal No. 30 of 2016.

In view of the fact that the appeal No. 29 of 2016
under Section 7 read with Section 25 of the Guardians and
Wards Act has already protected the visiting rights and
since the guardianship and the issue of custody has already
been decided in appeal No. 29 of 2016, the findings on issue
no. 26 becomes irrelevant. Hence, appeal is dismissed.

3. Appeal No. 27 of 2016.

It relates to the alimony under Section 25. Since in the
settlement dated 12.03.2015 the parties agreed for a
permanent alimony of Rs. 14.00 lakh out of which Rs. 1.00
lakh was received by the wife in the proceedings under
Section 13(b) and the remaining Rs. 13.00 lakh was
consistently tried to be paid by the husband but the same
was not received. But since today, the counsel for the parties
have agreed to settle the score of Section 24 for permanent
alimony subject to the enhancement of the said amount
from Rs. 14.00 lakh to Rs. 18.00 lakh. This Court enhances
the amount from Rs. 14.00 lakh to Rs. 18.00 lakh and directs
the husband to remit the balance amount of Rs. 17.00 lakh to
the respondent within the time provided in the judgment.
Hence the appeal is accordingly partly allowed with
consent of party alimony is enhanced.

4. Appeal No. 28 of 2016.

This appeal would be dismissed in the light of
findings recorded in the judgment rendered in relations to
29

the Appeal No. 29 of 2016 and Appeal no. 30 of 2016 vis-à-
vis the guardianship and custody of the minor child under
Section 7 read with Section 25 of the Guardians and Wards
Act and Section 26 of the Hindu Marriage Act.

5. Appeal No. 39 of 2016.

It is an appeal where wife has challenged the decree of
divorce. Since the wife is agreed for an alimony under
Section 25 in appeal No. 27 of 2016 and the same has been
enhanced from Rs. 14.00 lakh which was settled in the
agreement dated 15.03.2015 and the same has been
enhanced to Rs. 18.00 lakh. The acceptance of the permanent
alimony would amount to the dissolution as settled by
agreement dated 15.03.2015 hence this appeal challenging
the decree is dismissed.

6. Appeal No. 40 of 2016.

This appeal will stands dismissed in terms of
judgment rendered in appeal No. 29 of 2016 and appeal No.
30 of 2016 pertaining to grant of visitation rights and
custody of the minor child.

Subject to the above observations, all the six appeals
are decided accordingly.

(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.)
18.07.2017 18.07.2017
Shiv

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