SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Abhimanyu Poria vs Rajbir Singh And Ors on 12 January, 2018

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ MAT.APP.(F.C.) 92/2017 and CM APPL. 19737/2017

Reserved on: 12.10.2017
Date of decision: 12.01.2018

IN THE MATTER OF:
ABHIMANYU PORIA ….. Appellant
Through: Mr. Y.P. Narula, Senior Advocate with
Mr. Neeraj Kumar Jha, Mr.Yash Prakash,
Mr. Hrishikesh Jha and Mr. Abhay Narula,
Advocates

versus

RAJBIR SINGH AND ORS ….. Respondents
Through: Mr. V.K. Garg, Senior Advocate with
Mr. Jinendra Jain, Ms. Noopur Dubey,
Ms. Aishwarya Laxmi and Mr. Chirag, Advocates

CORAM:
HON’BLE MS. JUSTICE HIMA KOHLI
HON’BLE MS. JUSTICE DEEPA SHARMA

HIMA KOHLI, J.

1. In this appeal, the appellant/father has challenged an order dated
29.04.2017 passed by the learned Family Court, North, Rohini, Delhi,
disposing of an application moved by him under Section 12 of the Guardians
and Wards Act, 1890 (hereinafter referred to as „the Act, 1890‟), seeking the
interim custody of his minor daughter, Baby Smridi Singh, aged 7 years and
9 months, as on date and arrayed as respondent No.3, who is presently in the
custody of her maternal grandparents, respondents No.1 and 2 herein. By the

MAT.APP.(F.C.) 92/2017 Page 1 of 26
impugned order, the learned Family Court has declined the relief of interim
custody of the respondent No.3 to the appellant and instead, allowed the
alternative prayer made in the application by granting him visitation rights in
respect of the minor child, twice a month.

2. The factual matrix of the case needs to be delineated. On 01.07.2009,
the appellant had got married to Priyanka, daughter of the respondents No.1
and 2, who was a dentist by profession, as per the Hindu rites. The couple
were initially residing in Sector 7, Rohini, Delhi, but subsequently, they had
shifted to the residence of the respondents No.1 and 2 at Gurgaon. They
were blessed with a daughter, respondent No.3/minor on 09.03.2010. After
four years, the appellant‟s wife expired on 22.04.2014 at Medanta Medicity
Hospital, Gurgaon. It is the appellant‟s version that his wife was suffering
from epilepsy, which was the cause of her untimely death. Till early
September, 2014, the appellant and his minor daughter continued to reside at
Gurgaon, alongwith the respondents No.1 and 2. While residing in Gurgaon,
the respondent No.3/minor daughter was admitted to G.D. Goenka Public
School, Gurgaon. In the second week of September, 2014, the appellant and
his daughter shifted to a rented premises in Delhi. After shifting to Delhi, the
appellant had got respondent No.3 admitted in G.D. Goenka La Petite Play
School, then in Shri Ram Global School, West Delhi and finally, in G.D.
Goenka Public School, Delhi in the Kindergarten.

3. The appellant claims that during his daughter‟s summer vacations,
both of them had gone to visit his matrimonial uncle living in Jind City,
Haryana on 25.06.2015. When he was about to leave for Delhi alongwith the
respondent No.3, the respondent No.1 and his relatives and supporters had
barged into his uncle‟s house and had forcibly taken away the minor child.

MAT.APP.(F.C.) 92/2017 Page 2 of 26

4. The aforesaid narrative has however been denied by the respondents
No.1 and 2, whose version is that after the demise of their daughter in April
2014, the respondent No.3, their minor granddaughter had continued
residing with them for about 6-7 months and one day, in their absence, the
appellant had taken her away on a false promise that he would return in the
evening. However, he did not do so and instead, completely disconnected
himself from his in-laws. After searching high and low for the appellant and
the respondent No.3 for several months, the respondents No.1 and 2 got the
information that he and the respondent No.3 were residing at one of his
relative‟s place in Jind. When the respondent No.1 alongwith some
respectable persons arrived there on 27.06.2015, they were verbally abused
and threatened by the appellant and his relatives. It was from there that the
respondent No.1 took his granddaughter with him. As a fracas took place at
the spot, the appellant called the police at 100 number and at his instance, a
FIR was registered on the very same day under Sections 323, 452, 363, 506,
147 and 149 IPC. On 01.07.2015, the respondent No.3/minor child was
produced by the respondents No.1 and 2 before the learned Judicial
Magistrate, Jind who recorded her statement under Section 164 Cr.PC.
Respondent No.3 stated before the Magistrate that she was living with her
Nana Nani and wanted to live with them. A copy of the said statement, as
recorded by the learned Judicial Magistrate at Jind has been filed by the
respondents alongwith their reply.

5. Thereafter, the appellant filed W.P.(CRL) No.111/2015 before the
Supreme Court invoking Article 32 of the Constitution of India, for seeking
the custody of his minor daughter. The said petition was however
withdrawn by the appellant‟s counsel on 27.07.2015, on the ground that the

MAT.APP.(F.C.) 92/2017 Page 3 of 26
matter was being amicably settled between the parties with the help of their
well-wishers. In February, 2016, the appellant filed a petition under Section
25 of the Act before the learned Family Court, Rohini, seeking the Petition
No.1/2017. Accompanying the said petition was an interim application for
the production of the respondent No.3/minor and for her interim custody,
which has been disposed of by the impugned order by granting the appellant
visitation rights in respect of his daughter, twice a month, but rejecting his
request for grant of her interim custody.

6. Mr. Y.P. Narula, learned Senior Advocate appearing for the appellant
has assailed the impugned order on the ground that the learned Family Court
failed to appreciate the fact that the appellant being the father and natural
guardian of the respondent No.3/minor child, is on a better footing to retain
her custody; that the appellant is well established in the society and is
physically and financially capable of maintaining the child, which can be
seen from the fact that she was admitted by him in a prestigious school in
Delhi; that the learned Family Court failed to appreciate the fact that the
respondent No.3/minor child had been constantly tutored for two years by
the respondents No.1 and 2 and other members of their family and in all that
duration, the appellant was never permitted to see his daughter, which is
why she had reacted the way she did before the Family Court on 22.04.2017;
that the respondents had tried to file a frivolous complaint against the
appellant, alleging inter alia that he had killed his wife and when a FIR was
not registered by the police, they had filed a private complaint under Section
156(3) Cr.PC, which also came to be dismissed by the learned ACJM,
Gurgaon, vide order dated 13.01.2017. It was thus contended on behalf of
the appellant that all the above factors are a reflection on the conduct of the

MAT.APP.(F.C.) 92/2017 Page 4 of 26
respondents No.1 and 2, which disentitles them from retaining the custody
of the respondent No.3/minor child. Learned counsel had strenuously urged
that the respondents No.1 and 2 are influential persons inasmuch as the
brother of the respondent No.1 is a Member of Parliament and feeling
threatened from them, the appellant was constrained to shift to Delhi
alongwith his daughter, only for her benefit and welfare.

7. The aforesaid arguments were countered by Shri V.K. Garg, learned
Senior Advocate appearing for the respondents, who disputed each and
every allegation levelled by the appellant against the respondents No.1 and

2. He submitted that the respondent No.3/minor child has a deep and
emotional attachment with her grandparents, having lived with them ever
since her birth and even thereafter; that there is no question of the
respondents No.1 and 2 tutoring the minor child against the appellant, which
is clearly reflected from her statement recorded before the Judicial
Magistrate at Jind on 01.07.2015, which was after she had remained in the
custody of the appellant for over a period of six months. It was canvassed
that it is not in the best interest of the minor child to grant her interim
custody to the appellant and the presiding Judge of the Family Court had
personally interacted with the child and satisfied herself on this aspect
before passing the impugned order. During her interaction, respondent
No.3/minor child had stated before the learned Family Court Judge in no
uncertain terms that she wanted to reside only with the respondents No.1 and
2 and her Mama Ji (matrimonial uncle). It was thus urged that the present
appeal is liable to be dismissed as meritless and the impugned order upheld.
In support of his submission that when dealing with custody cases, the Court
must select a guardian of a minor by focusing only on the welfare and

MAT.APP.(F.C.) 92/2017 Page 5 of 26
wellbeing of the child, the following decisions were cited by learned counsel
for the respondents:-

(i) Rosy Jacob vs. Jacob A. Chakramakkal; (1973) 1 SCC 840

(ii) Nil Ratan Kundu and Anr. vs. Abhijit Kundu; (2008) 9 SCC 413

(iii) Smt. Anjali Kapoor vs. Rajiv Baijal; (2009) 7 SCC 322

8. We have heard the arguments advanced by both sides, carefully
perused the impugned judgment, the pleadings and the documents filed, as
also examined the judgments cited before us.

9. Before dealing with the facts of the present case, it is necessary to
examine the legal position. The Act, of 1890 has consolidated the amended
law relating to Guardian and Wards. Section 4 which is the definition clause,
defines the term, “minor” as a person who, under the provisions of the
Indian Majority Act, 1875, is to be deemed not to have attained majority; the
term “guardian” has been defined as a person having the care of the person
of a minor or of his property or of both, his person or property; the term
“ward” has been defined as a minor for whose person or property or both,
there is a guardian.

10. Chapter II of the Act, 1890 deals with appointment and declaration of
guardians. Section 7 that falls in Chapter-II, empowers the court to make
orders as to guardianship. The said provision is reproduced herein below for
easy reference:

“7. Power of the Court to make orders as to guardianship.-
(1) Where the Court is satisfied that it is for the welfare of a
minor that an order should be made-

(a) appointing a guardian of his person or property or
both, or

MAT.APP.(F.C.) 92/2017 Page 6 of 26

(b) declaring a person to be such a guardian
the Court may make an order accordingly.

(2) An order under this section shall imply the removal of
any guardian who has not been appointed by will or other
instrument or appointed or declared by the Court.
(3) Where a guardian has been appointed by will or other
instrument or appointed or declared by the Court, an order
under this section appointing or declaring another person to be
guardian in his stead shall not be made until the powers of the
guardian appointed or declared as aforesaid have ceased under
the provisions of this Act.”

11. Section 8 enumerates the persons, who are entitled to apply for an
order for guardianship. Section 9 specifies as to which court would have the
jurisdiction to entertain an application with respect to guardianship of the
minor. Section 17 that deals with matters that the court must consider while
appointing a guardian is of significance. The said provision is reproduced
herein below:-

“17. Matter to be considered by the Court in appointing
guardian.-

(1) In appointing or declaring the guardian of a minor, the Court
shall, subject to the provisions of this section, be guided by what,
consistently with the law to which the minor is subject, appears
in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor,
the Court shall have regard to the age, sex and religion of the
minor, the character and capacity of the proposed guardian and
his nearness of kin to the minor, the wishes, if any, of a deceased
parent, and any existing or previous relations of the proposed
guardian with the minor or his property.

(3) If minor is old enough to form an intelligent preference,
the Court may consider that preference.

MAT.APP.(F.C.) 92/2017 Page 7 of 26

(5) The Court shall not appoint or declare any person to be a
guardian against his will.”

12. Yet another statute that pertains to majority and guardianship amongst
Hindus, is the Hindu Minority and Guardianship Act, 1956 (hereinafter
referred to as „The Act, 1956‟). Section 4 of the said enactment defines the
term, “minor” as a person who has not completed the age of 18 years.
“Guardian” has been defined as a person having the care of the person of
the minor or his property or of both, his person and property and includes
the natural guardian. “Natural guardian” means any of the guardians that
have been enumerated in Section 6 of the Act and reads as below:-

“6. Natural guardians of a Hindu minor.- The natural
guardians of a Hindu, minor, in respect of the minor’s person as
well as in respect of the minor’s property (excluding his or her
undivided interest in joint family property), are-

(a) in the case of a boy or an unmarried girl-the father, and after
him, the mother; provided that the custody of a minor who has
not completed the age of five years shall ordinarily be with the
mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried
girl-the mother, and after her, the father;

(c) in the case of a married girl-the husband;
Provided that no person shall be entitled to act as the natural
guardian of a minor under the provisions of this section-

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by
becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi)”

13. Section 8 of the Act, 1956 lays down the powers of the natural
guardian. Section 13, which is of prime concern, stipulates that the welfare
of a minor is of paramount consideration. The said provision is reproduced

MAT.APP.(F.C.) 92/2017 Page 8 of 26
herein below for ready reference:-

“13. Welfare of minor to be paramount consideration- (1) In the
appointment of declaration of any person as guardian of a Hindu
minor by a court, the welfare of the minor shall be the paramount
consideration.

(2) No person shall be entitled to the guardianship by virtue of
the provisions of this Act or of any law relating to guardianship
in marriage among Hindus, if the court is of opinion that his or
her guardianship will not be for the welfare of the minor.”

14. On a conspectus of the relevant provisions of the Act of 1890 and the
Act of 1956 what clearly emerges is that the matter relating to the custody of
a minor child is an overwhelming consideration that must weigh with the
court when examining the “welfare of the minor” and the said term must be
given effect to in its broadest sense. At the time of appointing or declaring
any person as the guardian of a minor, it is not the rights of the parents or
relatives that should concern the court. The paramount consideration is the
welfare of the minor child. The aforesaid aspect has been consistently
highlighted over the years in several judicial pronouncements of the
Supreme Court and the High Courts including in the cases of Rosy Jacob
(supra), L.Chandran vs. Mrs. Venkatalakshmi and Anr. reported as AIR
1981 AP 1, Smt. Surindar Kaur Sandhu vs. Harbax Singh Sandhu and Anr.
reported as (1984) 3 SCR 422, Kamla Devi vs. State of Himachal Pradesh
and Ors. reported as AIR 1987 HP 34, Mrs. Elizabeth Dinshaw vs. Arvand
M. Dinshaw and Anr. reported as (1987) 1 SCR 175, Smt. Elokeshi
Chakraborty vs. Sri Sunil Kumar Chakraborty reported as AIR 1991
Calcutta 176, Kirtikumar Maheshankar Joshi vs. Pradipkumar
Karunashanker Joshi reported as AIR 1992 SC 1447, Bimla Devi vs. Subhas

MAT.APP.(F.C.) 92/2017 Page 9 of 26
Chandra Yadav „Nirala‟ reported as AIR 1992 Patna 76; Sumedha Nagpal
vs. State of Delhi Ors. reported as (2000) 9 SCC 745, Nil Ratan Kundu
(supra), Mausami Moitra Ganguli vs. Jayanti Ganguli reported as AIR 2008
SC 2262, Smt. Anjali Kapoor (supra), Gaurav Nagpal vs. Sumedha Nagpal
reported as (2009) 1 SCC 42, Shyamrao Maroti Korwate vs. Deepak
Kisanrao Tekam reported as (2010) 10 SCC 314 and Smt. Vibha vs. Sh.
Rama Nand reported as 2013 X AD (DELHI) 399.

15. In L. Chandran (supra), where the mother of the minor child had
expired and she was left in the care and custody of the grandmother, on the
father approaching the court for the custody of the child, the Division Bench
of the Andhra Pradesh High Court had repelled the stand of the father that as
the natural guardian of the child, he had unlimited rights to the custody of
the minor child over and above the maternal grandparents, in the following
words: –

“19. It may now be taken as universally settled that State
would not use its power in its parens patriae jurisdiction, against
the welfare of the children. Speaking positively it will use that
jurisdiction only for the promotion and the welfare of the child.
We are, therefore, clearly of the opinion that the first submission
advanced on behalf of the petitioner cannot be accepted. But we
insist that in rejecting this claim of the father for the custody of
the minor child in this case, we do not intend in any way to
undermine or impair the legitimate rights of the father to the
custody of his minor child. Patria Potestas is too ancient an
institution to be lightly interfered with. Normally, there is nothing
which a father and a mother would not do for the promotion and
protection of the interests of their child. The noble practice of
self-sacrifice in the interests of the minor children is imbedded in
the system of Hindu family. Babur, the great Moghul was
reported to have voluntarily courted death in order to save his
son Humayun from the creeping effects of a consuming disease.

MAT.APP.(F.C.) 92/2017 Page 10 of 26

We therefore do not use the welfare of the child as antithetical to
the custody of the father. We only reject the absolutist doctrine
advanced by the petitioner. As Lord Mac Dermott observed in the
aforesaid House of Lord’s decision in J. v. C. (supra). “While
there is now no rule of law that the rights and wishes of
unimpeachable parents must prevail over other consideration,
such rights and wishes recognised as they are by nature and
society, can be capable of ministering to the total welfare of the
child in a special way, and must therefore preponderate in many
cases. The parental rights, however, remain qualified and not
absolute for the purposes of the investigation…..”
We are, therefore, in this case only rejecting the absolute
argument advanced by the father.”

16. In Smt. Surinder Kaur Sandhu (supra), dealing with the Act of 1956,
the Supreme Court had held that though Section 6 defines the father as a
natural guardian of the minor child, but the said provision cannot supersede
the paramount consideration as to what is conducive to the welfare of the
minor.

17. In Kamla Devi (supra), the Himachal Pradesh High Court had
observed as follows:-

“13. As observed earlier, the Court while deciding child
custody cases in its inherent and general jurisdiction is not
bound by the mere legal right of the parent or guardian. Though
the provisions of the special statutes which govern the rights of
the parents or guardians may be taken into consideration, there
is nothing which can stand in the way of the Court exercising
its parens patriae jurisdiction arising in such cases giving due
weight to the circumstances such as a child’s ordinary comfort,
contentment, intellectual, moral and physical development, his
health, education and general maintenance and the favourable
surroundings. These cases have to be decided ultimately on the
Court‟s view of the best interests of the child whose welfare
requires that he be in custody of one parent or the other.”
(emphasis added)

MAT.APP.(F.C.) 92/2017 Page 11 of 26

18. In Mrs. Elizabeth Dinshaw (supra), the Supreme Court had observed
that whenever the question arises before court pertaining to the custody of
the minor child, the matter is to be decided not on the consideration of legal
rights of the parties, but on the sole and predominant criterion of what would
best serve the interest and welfare of the child. Therefore, the father‟s fitness
alone could not be treated as an overriding consideration for the welfare of
the minor children.

19. In Smt. Elokeshi Chakraborty (supra), while examining the provisions
of Sections 7, 12 and 25 of the Act, 1890, the Calcutta High Court had
observed that even if the children are in the custody of one, who has no legal
right thereto, but the welfare of the child is reasonably looked after in a
manner in which it should, then the minor‟s legal guardian cannot claim an
order of return or recovery of custody merely on the strength of his legal
right or financial soundness.

20. In Kirtikumar Maheshankar Joshi (supra) where again, the mother had
died an unnatural death, the father was facing a charge under Section 498-A
of the IPC and the children were staying with the maternal uncle when the
father had sought their custody, deferring to the desire expressed by the
children of staying with their maternal uncle and not with their father, the
Supreme Court had rejected the said request after interacting with them.

21. In Bimla Devi (supra), the Patna High Court had highlighted the fact
that the word „welfare‟ defined under the statute must be taken in its widest
sense and the moral and ethical welfare of the child must also weigh with
the court just as his physical well being.

MAT.APP.(F.C.) 92/2017 Page 12 of 26

22. In Nil Ratan Kundu (supra), where the mother of the minor had died
an unnatural death and his father was charged under Section 498-A of Indian
Penal Code (in short „IPC‟), the custody of the child was handed over to the
appellants, his maternal grandparents. On being enlarged on bail, when the
respondent, father of the minor filed an application under the Act, 1890
praying for his custody, the trial court allowed the said application.
Aggrieved by the said order, the grandparents approached the High Court
but their appeal was dismissed. The said order was challenged by them
before the Supreme Court. After examining the legal position expounded in
the English law, American law and analysing several judicial
pronouncements of Indian courts, where the principles relating to the grant
of custody of the minor child had been applied by taking into account their
necessity and well being as of paramount consideration, the Supreme Court
had allowed the said appeal and dismissed the father‟s application for
seeking custody of his minor child.

23. In Nil Ratan Kundu (supra), the Supreme Court had opined that in
cases where a guardian has to be appointed for a minor child, it is not the
“negative test” that the father is not “unfit” or disqualified to have the
custody of his son or daughter which is relevant, but the “positive test” that
the said custody would be in the welfare of the minor, which is material and
it is on that basis and the court should exercise the power to grant or refuse
the custody of the child in favour of the father, mother or any other
guardian. The said decision highlighted the fact that children are not a
„property‟ or a „commodity‟ and issues relating to their custody have to be
handled with love, affection, sentiments and by applying a human touch to
the problem.

MAT.APP.(F.C.) 92/2017 Page 13 of 26

24. In Mausami Moitra Ganguli (supra), the Supreme Court had reiterated
the principles of law in relation to the custody of a minor child in the
following words:-

“14. The principles of law in relation to the custody of a minor
child are well settled. It is trite that while determining the
question as to which parent the care and control of a child
should be committed, the first and the paramount consideration
is the welfare and interest of the child and not the rights of the
parents under a statute. Indubitably the provisions of law
pertaining to the custody of a child contained in either the
Guardians and Wards Act, 1890 (Section 17) or the Hindu
Minority and Guardianship Act, 1956 (Section 13) also hold out
the welfare of the child as a predominant consideration. In fact,
no statute, on the subject, can ignore, eschew or obliterate the
vital factor of the welfare of the minor. The question of welfare of
the minor child has again to be considered in the background of
the relevant facts and circumstances. Each case has to be
decided on its own facts and other decided cases can hardly
serve as binding precedents insofar as the factual aspects of the
case are concerned. It is, no doubt, true that father is presumed
by the statutes to be better suited to look after the welfare of the
child, being normally the working member and head of the
family, yet in each case the Court has to see primarily to the
welfare of the child in determining the question of his or her
custody. Better financial resources of either of the parents or
their love for the child may be one of the relevant
considerations but cannot be the sole determining factor for the
custody of the child. It is here that a heavy duty is cast on the
Court to exercise its judicial discretion judiciously in the
background of all the relevant facts and circumstances, bearing
in mind the welfare of the child as the paramount
consideration.”(emphasis added)

MAT.APP.(F.C.) 92/2017 Page 14 of 26

25. In the case of Smt. Anjali Kapoor (supra), the Supreme Court had
observed that the principle on which the Court should decide the suitability
of the guardian mainly depends on two factors: (i) the father‟s fitness or
otherwise to be the guardian, and (ii) the interest of the minors. Considering
the welfare of the child in the captioned case, it was held that children are
not mere chattel, nor are they mere play things in the hands of their parents.
Declaring that absolute rights of the parents over the destinies and the lives
of their children in the modern changed social conditions, had yielded to
considerations of their welfare as human beings so that they may grow up in
a normal balanced manner, to become useful members of the society, the
Supreme Court had observed as below:-

“26. Ordinarily, under the Guardian and Wards Act, the
natural guardians of the child have the right to the custody of the
child, but that right is not absolute and the Courts are expected
to give paramount consideration to the welfare of the minor
child. The child has remained with the appellant grandmother for
a long time and is growing up well in an atmosphere which is
conducive to its growth. It may not be proper at this stage for
diverting the environment to which the child is used to.
Therefore, it is desirable to allow the appellant to retain the
custody of the child.”

26. In Shyamrao Maroti Korwate (supra), the Supreme Court observed
that in deciding the question as to whether a father, who is otherwise a
natural guardian of a minor child, is fit or unfit to be appointed as such, the
“welfare of the minor child” is of paramount consideration and such a
question cannot be decided merely on the basis of the rights of the parties
under the law.

MAT.APP.(F.C.) 92/2017 Page 15 of 26

27. In Smt. Vibha (supra), a Division Bench of the Delhi High Court had
referred to the following considerations as were summarized by the
Guardianship Court in that case for determining the welfare of a minor
child:-

“6. After considering the submissions, the trial court took note
of the decision of the Supreme Court in Shyamrao Maroti
Korwate vs. Deepak Kisanrao Tekam, 2010 X AD (S.C.) 76
2010 (10) SCC 314 and summarized the legal position which
the Guardianship Court had to take into consideration in the
following manner:-

“17. From the judicial precedents, for determining
the welfare of the minor child, it need to be addressed the
following guiding ingredients which are in brief
enumerated herein below:-

(i) Where the child will be more happy.

(ii) Who is in a better position to look after the
physical and mental development of the minor.
(iii) Who can give more comfort.
(iv) In whose care the welfare of the minor is more
secure.
(v) Who has the capacity to provide for a better

education and round the clock look after the child.

(vi) Who would be available by the side of the child
when in need.
(vii) Who would look after the emotional aspect,

social setup, good education, career building and
nurturing of the child as a good human being.

(viii) Where the child will have congenial atmosphere,
healthy for his growth and overall development.

(ix) Where the child can be developed well, keeping
in mind the ethos and as a better Indian citizen.

(x) Where he will develop as a proper human being
having progressive attitude and not having constricted
thoughts and outlook towards life.”

MAT.APP.(F.C.) 92/2017 Page 16 of 26

28. In a recent decision in the case of Nithya Anand Raghavan vs. State of
NCT of Delhi and Ors. reported as (2017) 8 SCC 454, where the
appellant/mother had questioned a writ of habeas corpus issued by the High
Court for production of the minor daughter, removed by her from the
custody of the father/respondent from a foreign country and brought to
India, a Three Judge Bench of the Supreme Court overturned the impugned
judgment and reiterated the legal position that the Indian Courts are strictly
governed by the provisions of the Act of 1890. It was emphasized that the
overriding consideration must always be the interest and welfare of the
minor child. A similar same view has been expressed by the Supreme Court
in Prateek Gupta vs. Shilpi Gupta and Ors. reported as 2017 (14) SCALE
121 in the following words:-

“34. It has been consistently held that there is no forum
convenience in wardship jurisdiction and the peremptory
mandate that underlines the adjudicative mission is the
obligation to secure the unreserved welfare of the child as the
paramount consideration.”

29. Reverting to the case in hand, it is noteworthy that by the impugned
order, the learned Judge, Family Court has only disposed of the application
moved by the appellant under Section 12 of the Act, 1890 for seeking
interim custody of the respondent No.3. The main petition has yet to be
adjudicated by the Family Court. In his interim application, as a first relief,
the appellant had prayed for the custody of the respondent No.3 and in the
alternative, he sought visitation rights in respect of his minor daughter at
regular intervals.

MAT.APP.(F.C.) 92/2017 Page 17 of 26

30. A perusal of the impugned judgment reveals that the respondents
No.1 and 2 were directed to produce the respondent No.3 in the Court on
22.4.2017, which they did. The Family Court first called the respondent
No.3 to the chamber for interaction, followed by the appellant, then the
respondent No.2/maternal grandmother of the respondent No.3 and Shri
Bhalender Singh, maternal uncle of the respondent No.3 and lastly, the
respective counsels of the parties. The interaction recorded separately in
respect of each of the aforesaid parties, was kept in a sealed cover. After
hearing the counsels for the parties, the respondent No.3 was called back in
the chamber by the learned Family Court Judge, who again interacted with
her. On the insistence of the respondent No.3, her maternal uncle, Shri
Bhalender Singh was recalled by the learned Family Court and the
interaction that took place with them was also recorded separately and
placed in a sealed cover.

31. At the time of pronouncing the impugned order, one week down the
line, on 29.4.2017, the aforesaid sealed covers were opened by the learned
Family Court to refresh its memory. We can do no better than to reproduce
below, the relevant observations made in respect of the said interaction that
have been reproduced in extenso in para 15 of the impugned judgment:-

“15. The said sealed cover is opened today to refresh the
memory of the court. On 22.04.2017, while recording the
interaction of the court with the child, the parties and their
respective counsels, the court has observed as under:-

The child appeared in the chamber of the undersigned,
smiling in a jovial manner. Preliminary queries regarding her
name and school, brought about pleasant replies. The child is
very talkative and of her own, she informed the court about her
recent birthday, the gifts that were given to her and what was

MAT.APP.(F.C.) 92/2017 Page 18 of 26
not given to her by her maternal uncle, whom she affectionately
calls Bhalu Mama. She informed the court about her school
friends and that due to her examinations, this time, her birthday
was celebrated at home with her friends of locality. On query
by the court, the child told that she is not afraid of anything and
that there is no ‘Bhoot’ in this world, and that her Nani has
told her that Bhoot means Gujra Hua Time.

The child appeared to be a very happy child, with a very
pleasant disposition. However, when the child was asked as to
for how long, she has not met her father, she started trembling
and her discomfort and agitation was writ large on her face.
Her opening comment was that he used to beat her. Thereafter,
she stated that she did not wish to meet her father, nor did she
wish to live with him or even see his face. She was explained
that she need not be scared or afraid of anyone, but she
continued crying. After she was consoled by the court and
informed that her Nani, and her father alongwith Vakeel uncles
were being called inside, she insisted that her maternal uncle
Bhalu Mama be also called.

The child did not even give a glance to her father, but
rather sat next to the undersigned on a chair and insisted that
her Bhalu Mama sit next to her, as she felt secure with him.
Repeated efforts of the court, to have the child even say a word
to her father or wish him, brought about only tears, with her
whole body shaking and her hands trembling. Since, on seeing
her father, her sobbing and tears were uncontrollable, the Naib
Court was asked to take the child to the other room for a while,
alongwith her maternal uncle, with whom she was comfortable.

The child was given snacks by the court staff, which she
took happily, as informed by the child herself.

After the child went out, the petitioner and the
respondents made allegations against each other, and both the
counsels, after restraining their respective clients, made further
submissions on the application, citing certain judgments, which
shall be referred to at the time of passing of the order on the
application.

MAT.APP.(F.C.) 92/2017 Page 19 of 26

When the parties as well as their counsels had concluded
their submissions, they left the chamber, the child was again
called in the chamber. She came happily to the chamber of the
undersigned and said Thank You, for the chips and chocolates
given to her by the court staff. She was again comforted by the
court and was told she need not be afraid of anyone.

During the course of submissions made by the petitioner,
he had mentioned that child‟s Nani and maternal uncle Sh.
Bhalender Singh had threatened and intimidated the child with
injections and she is terrified of them. On general questioning,
the child stated that she is not afraid of anyone and adores her
Nani and Bhalu Mama, who was earlier living in US. She even
joked that he eats too much and looks like a Bhalu. On a
question, as to whether anyone has scared or scolded her, when
she did not study, she very happily stated that no one scolds her
but rather she scolds her Bhalu Mama. She fondly spoke about
both her Mamis Ms. Savita and Ms. Sakshi and her second
maternal uncle (Koka Mama). She also informed that she goes
to G.D. Goenka School, Gurgaon and it is her Nani, who gets
her ready for school. She gets gifts from her maternal uncles.

She was asked that if she would like to wish and say
Hello to her father, but she again started crying and sobbing,
stating that she did not wish to speak to him. Again on being
consoled, the petitioner as well as her maternal uncle were
called in on her demand, but she held the hand of the
undersigned and her maternal uncle, and while trembling, she
stated Good Afternoon to the petitioner in a very low tone. The
petitioner responded to her but thereafter did not put any
question to the child, but merely told her that “Tipu Didi and
other relatives had come to meet her outside and she should not
be afraid of her maternal uncles and that her Papa is here:

The petitioner was advised to interact with the child and
ask her certain questions regarding her school and friends etc.,
so that the child may feel comfortable with him, but no
questions were forthcoming from the petitioner. On the other
hand, the child went to her maternal uncle and hugged him
tightly, and despite being repeatedly asked to tell her father

MAT.APP.(F.C.) 92/2017 Page 20 of 26
about herself, she refused. On the asking of the court, the child
told that her best friend is „Stuti‟.

It is quite apparent that the child is not comfortable in
the company of her father and was rather petrified of him. All
of them were told to leave and the child was so scared that she
even did not look at the petitioner while leaving. However,
before leaving, she looked back at the court and said Bye.”

32. In the impugned order, the learned Family Court has rightly observed
that when considering the issue of interim custody, all that the court is
required to assess is as to whether the child‟s welfare being of paramount
importance and concern, would be better taken care of by the father as a
natural guardian or by the respondents No.1 and 2, the maternal
grandparents, who were already having her custody or whether the physical,
mental or emotional state of the respondent No.3 demanded that her interim
custody be handed over to the appellant/father. After a lengthy interaction
that it had with the respondent No.3 on 22.4.2017, the learned Family Court
opined that it was not in her welfare to handover her custody to the
appellant/father as the child was being well taken care of by her maternal
grandparents and her maternal uncle. The adverse reaction of the respondent
No.3 to the appellant‟s presence during the interaction was also taken note
of. The Family Court observed that the respondent No.3 was visibly
shaking, trembling and petrified in the presence of the appellant and that she
kept on crying continuously, was inconsolable and became incoherent.

MAT.APP.(F.C.) 92/2017 Page 21 of 26

33. Given the attendant facts and circumstances and the totality of the
situation, the scales had tilted in favour of the respondents No.1 and 2 and
the Family Court was of the firm opinion that granting interim custody of
the respondent No.3 to the appellant/father, would have uprooted the child
from a happy and conducive environment and it was likely to have a serious
negative impact on her growth and development. Consequently, the prayer
for temporary custody of the minor child was declined. Holding that it was
necessary for the respondent No.3 to get acquainted with the appellant for
both of them to establish a healthy and positive relationship, as an interim
measure, the appellant has been granted visitation rights to meet the minor
child twice a month, on the first and third Saturdays. The meeting scheduled
for the first Saturday of every month has been directed to be held in the
children‟s room attached to the Family Court and the second meeting
directed to be held in Gurgaon, where the minor/respondent No.3 is residing
with the respondents No.1 and 2, at a mutually convenient place.

34. In the light of the facts and circumstances of the case and the
decisions cited hereinabove, we have no hesitation in holding that merely
because the appellant is the father and natural guardian of the minor,
respondent No.3 or that he is financially sound, will not be a consideration
for granting her interim custody to him. The overriding consideration when
deciding an application either under Section 12 or Section 25 of the Act of
1890, is the physical, mental and emotional well being of the minor; no
more, no less.

MAT.APP.(F.C.) 92/2017 Page 22 of 26

35. On the scale of finances, merely because the appellant is financially
sound, cannot be the guiding factor for the Court to handover the custody of
the minor, respondent No.3 to him. In any event, the respondents No.1 and 2
are better placed than the appellant when it comes to financial soundness.
Even if the situation was converse, it would not have made much difference.
Therefore, the said criteria alone cannot weigh with the court when deciding
a matter of custody of the minor respondent No.3. Further, the fact that the
appellant and the respondents No.1 and 2 have a serious dispute with each
other and they have filed criminal cases against each other, will also not be
relevant for this court as those are extraneous factors, when it comes to
assessing the overriding interest and welfare of the child.

36. The predominant focus of the Court in the present case is solely on
the “well being” of the respondent No.3, which term must be given its
widest amplitude. The Court must remain mindful of the fact that the
respondent No.3 should as best as is possible, remain in a harmonious and
peaceful environment that is conducive to her upbringing and growth. From
a perusal of the interaction of the Family Court with the child, it is revealed
that she has a great deal of affection for the respondent No.2/maternal
grandmother and Shri Bhalender Singh, maternal uncle, apart from other
maternal uncles, their wives and children. As of now, the child appears to be
blossoming in the secure presence of her grandparents and her extended
family and all of whom have joined hands to give the comfort and solace
that a motherless girl child would need at this tender age. To our mind, the
emotional and psychological quotient would far outweigh the monetary
quotient when it comes to balancing the interest of a minor child. A safe,
secure and harmonious environment at home and the presence of a loving

MAT.APP.(F.C.) 92/2017 Page 23 of 26
and caring family are of preeminent consideration for a child of that age for
her healthy and well balanced growth which we find that the respondents
No.1 and 2 have been able to provide.

37. In the above facts and circumstances, there is no reason for this Court
to interfere in the impugned order whereunder, the request for interim
custody made by the appellant/father in respect of the minor, respondent
No.3, has been declined. We are in agreement with the observations made
by the learned Family Court that till the respondent No.3 gets familiar with
her father, the appellant and the latter is able to establish a rapport, with her,
good enough to build a confidence level for her to be willing to stay for a
longer durations with him, she ought not to removed from the custody of the
respondents No.1 and 2/maternal grandparents.

38. We may note here that during the course of arguments, Mr. Narula,
learned Senior Advocate appearing for the appellant/father had stated during
the visitation rights granted under the impugned order, that the appellant was
never left alone with the respondent No.3 in the children‟s room attached to
the Family Court, for him to be able to bond with her and that the maternal
uncles of the respondent No.3 are always hovering around them, which was
creating an impediment in the meeting. Learend counsel had also stated that
the appellant is very apprehensive of meeting with the child in Gurgaon, due
to the immense influence that the respondents No.1 and 2 wield in the area.

39. To allay the aforesaid apprehension, we had suggested that the
visitation rights in respect of the respondent No.3, granted to the appellant
under the impugned order, twice a month, should initially be arranged in the
children‟s room attached to the concerned Family Court itself. Further, in
view of the grievance expressed that the maternal uncles of the respondent

MAT.APP.(F.C.) 92/2017 Page 24 of 26
No.3 were constantly interfering during the visitation rights, we had
suggested that the Family Court can direct a Counsellor to remain present in
the children‟s room in that duration. However, the said suggestions did not
find favour with the appellant.

40. Now that the impugned order presently declining the interim custody
of the respondent No.3 to the appellant has been upheld, we are of the
opinion that for any further progress to be made in forging a filial bond
between the appellant and the respondent No.3, the father and daughter
ought to be left alone during the periods of visitation. With this intent and
purpose, we modify the impugned order dated 29.4.2017, limited to the
extent that during the pendency of the main petition, the respondents No.1
and 2 shall bring the minor respondent No.3 on the first and third Saturdays
of every month to the children‟s room attached to the concerned Family
Court and a Counsellor attached to the said Court shall remain present
during the meeting between the appellant and the respondent No.3. The
meeting hours, as fixed in the impugned order is for 1½ hours, i.e., from
11.30 AM to 1.00 PM. If the Counsellor reports to the Family Court that the
respondent No.3 is comfortable with the appellant then the meeting hours on
one Saturday of every month may be extended by the learned Family Court
to two hours, i.e., from 11.00 AM to 1.00 PM.

41. It is clarified that the order passed hereinabove is purely interim in
nature and in case of any change in the circumstances, either party is at
liberty to approach the Family Court with sufficient material for
modification/alteration of the visitation rights.

MAT.APP.(F.C.) 92/2017 Page 25 of 26

42. The opinion expressed hereinabove is only in the context of the fact
situation noted in the interim order passed by the Family Court and shall not
influence the said Court at the time of finally deciding the main petition filed
by the appellant under Section 25 of the Act of 1890.

43. The present appeal is disposed of on the above terms, while leaving
the parties to bear their own expenses.

HIMA KOHLI, J

DEEPA SHARMA, J
JANUARY 12, 2018
rkb/na

MAT.APP.(F.C.) 92/2017 Page 26 of 26

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2018 SC and HC Judgments Online at MyNation
×

Free Legal Help just WhatsApp Away

MyNation HELP line

We are Not Lawyers but No Lawyer will give you Advice like We do

Please CLICK HERE to read Rules of Group, If You agree then Message us on Above Number.

We handle Women centric biased laws like False 498A, Domestic Violence(DVACT), Divorce, Maintenance, Alimony, Child Custody, HMA24, 125 CrPc, 307, 313, 376, 377, 406, 420, 506, 509 etc

Web Design BangladeshWeb Design BangladeshMymensingh