Balram vs Sushma on 8 November, 2017

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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 9 of 2014
Judgment reserved on 13-09-2017
Judgment delivered on 08-11-2017
(Arising out of order dated 10-12-2013 passed by the Additional
Principal Judge, Family Court (Link Court), Bemetara, in Misc. Civil
Suit No.4/11)

1. Balram S/o Adhar Verma, Aged About 32 Years R/o Bija, Tahsil
Saja, District Durg, Chhattisgarh, Civil Revenue District
Durg, Chhattisgarh

—- Appellant

Versus

1. Sushma W/o Balram Verma, Aged About 27 Years R/o Bija,
Tahsil Saja, At Present Residing At Padmi, Tahsil Khamhariya,
District Durg, Chhattisgarh

—- Respondent

For Appellant Ms. Sharmila Singhai, Advocate
For Respondent Shri Sunil Otwani, Advocate

Hon’ble Shri Justice Prashant Kumar Mishra
Hon’ble Shri Justice Arvind Singh Chandel

C A V Judgment

The following judgment of the Court was delivered by

Prashant Kumar Mishra, J.

1. This is an appeal under Section 47 of the Guardians and

Wards Act, 1890 (for short ‘the Act, 1890’) read with Section

19 (1) of the Family Courts Act, 1984 (for short ‘the Act, 1984’)
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challenging the order passed by the Family Court, Bemetara,

allowing the respondent/wife’s application/plaint for custody of

minor girl Ku. Sakshi under Section 25 of the Act, 1890.

2. As pleaded in the plaint filed by the wife, the parties were

married about 7 years back from the date of institution of the

proceedings by the respondent/wife. Two girl child namely;

Ku. Ashtha Ku. Sakshi were born out of the wedlock. On

account of giving birth to two girl child, members of her in-laws’

family started torturing her and the appellant/husband started

threatening the wife to perform second marriage. The wife

was locked in a room from morning to evening on 30-7-2011.

When the lock was opened in the evening the wife was driven

out of the house. On that date Ku. Ashtha accompanied the

wife, but the husband forcibly retained Ku, Sakshi in his

house. Being the natural guardian of the girl child, aged about

2½ years, the application was filed for her custody.

3. The appellant/husband denied the plaint allegations, inter alia,

stating that he is staying separately from the joint family only

because of the quarrel raised by the wife and that she has left

the matrimonial house on her own volition. Appellant also

made allegation regarding the character of the
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respondent/wife. He admitted that he is working as Shiksha

Karmi. Contrary to the earlier statement, he pleaded in para 6

of the reply that he is residing with his father in the joint family,

where his parents, brothers, sisters and sister-in-law ( babhi)

are present to take care of Ku. Sakshi. It was specifically

stated that if the girl child stays with her mother she will also

become characterless like her mother.

4. Based on the statement of the respondent/wife and her

witness Bhajman and the statement of the appellant/husband

and his witness Sanat Nirmalkar, the Family Court concluded

that the allegation on the character of the wife is not proved. It

is also held that under Section 6 of the Act, 1890 the mother is

entitled to the custody of minor child. The trial Court has also

considered that village Padmi is only about 9 kms. from Dewar

Bija where the elder daughter Ku. Ashtha is studying,

therefore, Ku. Sakshi can also get education in the same

school while staying with the mother.

5. On a reading of the statement of the wife, it appears her father

is an agriculturist having 30 acres of land and that her elder

daughter is obtaining good education at Saraswati Gyan

Mandir, Dewar Bija.

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6. In course of hearing of this appeal on 21-11-2016 this Court

interacted with the girl child and observed thus :

2. This matter was taken up in Chamber.
We have questioned the minor girl and the
parties. The young girl is intelligent. She is
very communicative and was not at all
nervous when she talked to us. She is a
confident young child. She is living with her
father for two and half years and it is apparent
that she is being educated well.

3. A child should not suffer for the fault of
parents. She is not an inanimate object. She
is not a pen or pencil. We cannot hand over
the child from one parent to another parent.
Without going into the merits of the case as to
whether it is the father or the mother, who is
entitled the custody of the child, we are clearly
of the view that the child has the right to get
love and affection of both the parents. Why
should a child suffer if the parents are fighting
each other ? In this case, there is another
important factor that one girl child is living with
the mother and one with the father. Both the
sisters also have a right to know and love with
each other. The situation at present is that the
child living (sic with) her father is neither
permitted nor is able to meet her father ( sic
mother) or her sister. As far as the sister is
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concerned, the father has not made any
request that he be given visitation rights with
the child, who is living with the mother.

4. Keeping in view the aforesaid facts, we,
as an interim measure, direct that on and
w.e.f. 27th November (Sunday) and on every
Sunday thereafter the father will drop the
child – Ku. Sakshi, who is in his custody, at
the house of the respondent – mother by 9.30
AM in the morning. The child will remain with
the mother till 5.30 PM in the evening and
then the father will go back to the house of the
mother and get her back to his house. Once
the mother has gained confidence of the child,
we will permit the child to stay overnight at the
house of the mother from Saturday after
school hours till the late in the evening of
Sunday. On every Sunday, the father must
comply with the aforesaid directions,
otherwise we shall vacate the stay order.

7. The respondent complained to this Court that the order dated

21-11-2016 is not complied with in its letter and spirit,

therefore, the parties were directed to file affidavits. In his

affidavit the husband provided date wise explanation for not

taking the child to the house of the wife.
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8. Considering the explanation, this Court on 25-1-2017

observed thus :

To say least, this shows the defiant attitude of
the husband to the Court. He does not want to
comply with the orders of the Court on one
pretext or the other. The order was passed in
the Court and despite this, now the
appellant/husband has temerity and audacity
to say that because he did not have the
certified copy of the order, he could not take
the child to the house of the wife on
27.11.2016 and 04.12.2016.

We do not understand that what was the
requirement of having certified copy when the
order was pronounced in Court for the benefit
of minor child. How could the husband totally
disobey the orders of the Court in not taking
the child thereafter.

It is stated that on 11.12.2016 the child was
brought to the house of the respondent/wife,
the child stayed there for 20 minutes and
returned back to the appellant’s house on her
own wish. Similarly, on 18.12.2016, it is stated
that the child was escorted by the village
Kotwar and brought her to the respondent’s
house where the child stayed for 45 minutes.

With regard to 25.12.2016 to 01.01.2017, it is
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stated that since child refused to go to the
respondent’s house, she was not taken there.
This also is totally contemptuous of the orders
of the Court. On 08.01.2017, it is stated that
the child was taken along with Kotwar of the
village but came back after 45 minutes. On
15.01.2017, it is stated that one police
personnel escorted the child. Under whose
authority, this police personnel was sent along
with the child is not clear. This Court had not
directed that the child should go with the police
personnel. We are dealing with the child and
we do not want that the child should feel that
she is some sort of criminal. The husband has
given no explanation why he had asked for
police to escort the child. On 22.01.2017, it is
stated that the child was dropped to the house
of the respondent where she stayed there for
30 minutes and came back.

As far as the presence of the child for
particular time is not disputed by the wife
though, according to the wife, on 11.12.2016
and 08.01.2017, the child was escorted by one
lady and the child was taken back after 15
minutes. The case of the wife is that the child
was taken back.

As we have already observed, the child is
human being and she is not inanimate object.
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Our purpose of giving visitation rights to the
wife is that by use of these visitation rights, the
child would become familiar with the mother,
but it appears that the father does not want this
to happen. We were, in fact, inclined to dismiss
this appeal only on this ground but we are
giving him one more chance to rectify his
mistake.

We, therefore, direct that on or w.e.f. Sunday,
the father will ensure that the child is taken by
him and nobody else, to the house of the
respondent/wife and leave there at 9.30 AM
and thereafter he will collect the child at 5.30
PM. If the child cries or refuses, is no excuse.
For the first 2-3 visits, the child is bound to
refuse to go to the mother, the child is bound to
cry and the child is bound to say that she does
not want to go to the mother because by now
she has been tutored against the mother fully.
The mother has also right to get the child, and
therefore, by interim order, these visitation
rights shall continue for a period of 6 weeks
w.e.f. 29th January, 2017.

We make it clear that if the husband does not
comply with the order of the Court, we
shall dismiss his appeal for non-

prosecution.

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9. The respondent thereafter claimed increase in frequency of

visits as also for allowing the girl to stay overnight in her

house. We, therefore, directed for production of the girl child

for interaction with her before passing any further order. On

12-9-2017 this Court interacted with Ku. Sakshi for sometime.

During interaction, considering the rural background in which

she is living, we found her to be quite smart and

communicative. When we specifically asked her about her

wishes to stay overnight with her mother she stated that she is

willing to go to her mother, but not immediately. We asked her

about the cordiality of atmosphere when she visits her mother

to which she replied positively and affirmatively. To the

question as to by what means her elder sister Ku. Astha goes

to school she informed that she goes in a school bus,

therefore, it appears proper educational facility is provided to

the elder daughter which can also be extended to Ku. Sakshi.

10. In course of hearing it was informed to us that the husband

has already filed a divorce petition against the wife, therefore,

the wife apprehends that if the husband performs second

marriage, her daughter Ku. Sakshi would be left at the mercy

of the stepmother. Therefore, considering the Indian system

of family life and particularly the relation between the
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stepmother and stepchildren, it may not augur well for Ku.

Sakshi’s future to allow her to stay with her father throughout

the life. In any case, Ku. Sakshi is deprived of the love and

affection of her natural mother.

11. Reiterating the well settled legal position that while deciding

the dispute pertaining to custody of minor, Courts should keep

in mind the paramount interest of the minor, the Supreme

Court, in a recent decision rendered in Purvi Mukesh Gada

v. Mukesh Popatlal Gada and Another 1, has held that it was

incumbent upon the High Court to find out the welfare of the

children before passing the order regarding custody because

the welfare of the child is the supreme consideration in such

matters.

12. In yet another recent judgment rendered in Roxann Sharma

v. Arun Sharma 2 the Supreme Court has held thus :

10. Section 6 of the HMG Act is of seminal
importance. It reiterates Section 4 (b) and
again clarifies that guardianship covers both
the person as well as the property of the
minor; and then controversially states that the
father and after him the mother shall be the
natural guardian of a Hindu. Having said so, it
1 (2017) 8 SCC 819
2 (2015) 8 SCC 318
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immediately provides that the custody of a
minor who has not completed the age of 5
years shall ordinarily be with the mother. The
significance and amplitude of the proviso has
been fully clarified by decisions of this Court
and very briefly stated, a proviso is in the
nature of an exception to what has earlier
been generally prescribed. The use of the
word “ordinarily” cannot be overemphasised. It
ordains a presumption, albeit a rebuttable one,
in favour of the mother. The learned Single
Judge appears to have lost sight of the
significance of the use of the word “ordinarily”

inasmuch as he has observed in paragraph 13
of the Impugned Order that the Mother has not
established her suitability to be granted interim
custody of Thalbir who at that point in time
was an infant. The proviso places the onus on
the father to prove that it is not in the welfare
of the infant child to be placed in the custody
of his/her mother. The wisdom of Parliament
or the Legislature should not be trifled away
by a curial interpretation which virtually
nullifies the spirit of the enactment.

11. We shall now consider the relevance of
the precedents cited before us by the learned
Senior Counsel for the Father.
In Sarita
Sharma v. Sushil Sharma, in defiance of the
orders passed by the Jurisdictional Court in
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U.S., the mother, Sarita, had returned to India
with two children from their matrimonial
relationship. The High Court viewed that the
divorce decree and custodial directions having
emanated from a competent Court deserve to
be honoured, and accordingly allowed the
Habeas Corpus Petition and directed the
mother to return the custody of the children to
the father, Sushil. This Court was not
persuaded that further consideration by Courts
in India as to whether the interests of the
children, which were paramount, stood
foreclosed and could not be cogitated upon
again. As regards Section 6 of the HMG Act, it
opined that although it constitutes the Father
as a natural guardian of a minor son it could
not be considered as superseding its
paramount consideration as to what is
conducive to the welfare of the minor. These
observations were reiterated and this Court
reversed the decision of the High Court
holding that the interests and welfare of the
children dictated that the custody should be
with their mother. This case, therefore,
militates against the legal and factual position
which the Father seeks to essay before us. It
is also important to underscore the fact that
both the children were over the age of five, a
fortiori, the custody should not have been
reversed in the case in hand by the High Court
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from the Mother to the Father since Thalbir
was then around one year old and is presently
still less than three years old.

13. In the light of what has been discussed above, it is also

important to bear in mind a very germane biological aspect of

the matter concerning puberty, privacy and care needed to a

girl child at age between 10 to 15 years. At this juncture of life,

the girl needs special care and attention of the mother. There

are certain biological changes, which a girl child undergoes

during this age, which cannot be taken care of by the father.

14. Thus, considering all the relevant aspects of the matter, we are

of the considered view that the trial Court is fully justified in

directing handing over custody of the girl child Ku. Sakshi to

the mother (respondent herein).

15. As a sequel, the appeal, sans merit, is liable to be and is

hereby dismissed, leaving the parties to bear their own cost(s).

16. A decree be drawn accordingly.

Sd/- Sd/-

Judge Judge
Prashant Kumar Mishra Arvind Singh Chandel

Gowri
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