Daya Ram vs Tarun Kumari And Ors on 23 August, 2017

CR No.5160 of 2017 (OM) 1


Civil Revision No.5160 of 2017 (OM)
Date of Decision: 23.08.2017

Daya Ram


Tarun Kumari and others


Present:Mr. Munish Behl, Advocate
for the petitioner.

Mr. B. Diwakar, Advocate
for the caveators/respondents.



[1]. Petitioner has challenged the order dated 21.07.2017

passed by Addl. District Judge, Palwal whereby the application

filed by respondent No.1 for handing over the custody of minor

child was allowed.

[2]. Brief facts are that the marriage between the petitioner

and respondent No.1 took place on 21.11.2008 according to

Hindu rites and ceremonies. A son namely Meru Kanwar took

birth from this wedlock on 20.08.2009. The matrimonial discord

took place between them as the petitioner was involved in a

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CR No.5160 of 2017 (OM) 2

criminal case under Section 376 IPC and was convicted and

sentenced to undergo imprisonment of 5 years by the trial

Court. The sentence was reduced by the High Court at

Allahabad thereby reducing the same to 4 years 6 months.

During the period of custody of the petitioner, the wife and minor

son remained in the parental house of the wife. Petitioner has

already completed the sentence. After the release, the petitioner

took respondent No.1/wife and his son with him. The

respondent No.1 raised allegations of harassment and captivity.

Respondent No.1 was recovered by means of search warrants

issued by the Sub Divisional Magistrate, Palwal. The allegations

were made that when the police party went to get the

respondent No.1 released, the police party was assaulted by the

petitioner resulting in lodging of a criminal case.

[3]. The custody issue of the minor child under the

provisions of Guardian and Wards Act, 1890 was considered by

the trial Court with reference to an interaction done with the

minor. The trial Court found him to be quite capable child having

understanding of more than a child of his age. The rival

assurances given by the parties were considered by the trial

Court and ultimately the trial Court allowed the application of

respondent No.1 and directed the petitioner to hand over the

child to respondent No.1 on 24.08.2017.

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[4]. Learned counsel for the petitioner vehemently

contended that an amount of Rs.5,000/- fixed under Domestic

Violence Act is being paid regularly except the period since

March 2017 for which the petitioner is ready and willing to make

good the arrears. Respondent No.1 is living with her parental

family. Father of the petitioner has already died on 12.08.2017.

Besides the petitioner, there is a mentally retarded brother of

the petitioner at home and an old mother.

[5]. Learned counsel further submitted that respondent

No.1 has no independent means of livelihood except the

assistance rendered by her father, who is an ex-army man and

brother, who are managers in some multi-national company.

Welfare of the child is of paramount consideration and the

welfare of the child lies only with the petitioner.

[6]. Learned counsel by relying upon Mausami Moitra

Ganguli vs. Jayant Ganguli, 2008(4) R.C.R. (Civil) 551; Rozy

Jacob vs. Jacob A. Chakramakkal, 1973 AIR (SC) 2090;

Smt. Surinder Kaur Sandhu vs. Harbax Singh Sandhu and

another, 1984 AIR (SC) 1224 contended that custody of minor

child more than of six years of age can be given to the husband

in view of the fact that parents of the minor child are having

constrained relations. Since the petitioner is quite resourceful in

order to meet out the exigencies of maintaining the child in

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terms of his well being, therefore, welfare of the child preferably

lies with the petitioner/husband. The welfare of the child is of

paramount consideration in the custody issue between the


[7]. On the other hand, learned counsel for the respondent

has vehemently submitted that the petitioner was convicted for

an offence of moral turpitude. The family of the petitioner is

comprising of himself, his mentally retarded brother and an old

mother. In view of composition of family, there will be no healthy

atmosphere in the house, so as to bring out the house from

sarcastic atmosphere, where the petitioner would be viewed

with an intent of guilt by all concerned including the neighbours.

[8]. Learned counsel further submitted that respondent

No.1 along with minor child were being adequately maintained

by her parental family as two of his brothers are highly placed as

managers in some multi-national company and her father is an

Ex. Army Officer. The future of the child would be secured at the

hands of respondent No.1. Petitioner is having criminal

antecedents i.e. firstly, he was convicted for the offence under

Section 376 IPC. Secondly, even after arrival at home, he

confined respondent No.1 and the child against the wishes of

respondent No.1. Respondent No.1 could be recovered only

with the aid of search warrants issued by the SDM, Palwal.

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Even the petitioner assaulted the police party, which ultimately

resulted in lodging of a criminal case against him. By referring to

the certificate issued by the Principal B.V.N. Sr. Sec. School,

Villlage Khambi, Distt. Palwal dated 21.08.2017, learned

counsel submitted that the admission of Meru Kanwar has been

cancelled from the school due to his continuos absence.

[9]. I have considered the rival submissions made at the


[10]. Apparently, petitioner and respondent No.1 are having

constrained relations. Welfare of the child is basically a question

of fact which requires determination on the basis of evidence. At

this stage only prima facie evidence can be considered in order

to see the welfare and interest of minor which are paramount in

nature. The natural instinct of the mother in favour of the infant

does not require any such evidence to show that the mother is

not having any self-less interest in motherly care and affection

towards the child, which is indispensable for the healthy growth

of the minor. The self-less of the minor for the welfare of the

infant is a natural instinct of the mother which is not confined to

human being alone. None else can provide such love and

affection to the minor except the mother, who is having God’s

own cradle.

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[11]. This Court has also interacted with the minor on

22.08.2017 and found the minor to be capable of

understanding. At the time of interaction, the minor was found to

be under the influence of his father, but this Court is bound to

take a realistic approach in the facts and circumstances of the

case. Child is of tender age and requires motherly care and

affection for the ultimate growth of his personality. Since the

petitioner was convicted under Section 376 IPC and was

accused of opening assault on the police party as well,

therefore, it would be unsafe to allow the custody of the minor in

the hand of petitioner, particularly when there is no other male

members in the family except the mentally retarded brother of

the petitioner to take care of the minor in terms of healthy

teachings at home. The old mother of the petitioner would not

be in a position to fulfill the needs of the minor. Above all, as per

the certificate issued by the Principal, B.V.N. Sr. Sec. School,

Village Khambi Distt. Palwal, the admission of the minor has

been cancelled on 21.08.2017 due to his continuos absence

from the school.

[12]. There cannot be any dispute with regard to the views

expressed by the Courts in the cited precedents by learned

counsel for the petitioner. Mausami Moitra Ganguli’s case

(supra) was in respect of custody issue of minor child aged 10

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years in which custody was given to the husband, subject to

certain conditions. The facts involved in the said case were

totally different. The husband was not involved in any offence of

moral turpitude in the cited cases. The other precedents cited by

learned counsel operate in individual fields, which cannot be

opined to be overlapping with the facts of the present case.

[13]. The cumulative effect of the facts and circumstances of

the case would lead only to an irresistible conclusion that

welfare of the minor child would be in the company of the

mother, who being a natural mother would provide him the

natural instinct of her self-less interest, motherly care and

affection towards ultimate growth of the child’s personality.

[14]. In view of above, I do not find any error of jurisdiction

committed by the Court below. This petition is accordingly


August 23, 2017 (RAJ MOHAN SINGH)
Whether speaking/reasoned Yes/No
Whether reportable Yes/No

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