IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No. 330 of 2017
Reserved on: 16.04.2018
Decided on: 19.04.2018
Smt. Nirmala Devi …Petitioner/Appellant
.
Versus
Sh. Uma Dutt …Respondent
Coram
The Hon’ble Mr.Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? No.
For the Appellant: Mr. J.L. Bhardwaj, Advocate.
For the respondent: Mr. B.C. Verma, Advocate.
Justice Tarlok Singh Chauhan, Judge
The appellant who has been denied the custody of
children born to her from the loins of the respondent has filed this
appeal under Section 47 of the Guardians and Wards Act, 1890 (for
short the ‘Act’).
2. The brief facts of the case are that the appellant filed a
petition under Section 25 of the Act for the custody of twins master
Bhupesh Kumar and master Bhuwnesh Kumar from the respondent,
alleging therein that marriage of the parties had been solemnised on
31.07.2005. She has given birth to the aforesaid above-named twins
on 24.06.2006, however, due to maltreatment given by respondent,
she left his company and thereafter obtained mutual divorce on
17.02.2012. The respondent after the divorce did not allow the
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appellant to meet the children despite having committed and
consented at the time of entering into mutual divorce.
3. It was further alleged that the appellant after obtaining
.
divorce had got married to one Yadav Chand. Since, the appellant
after giving birth to the above-named twins, underwent operation of
family planning on the request of the respondent, she now cannot
conceive and give birth to another child, which according to her
would affect her marital life. It was also contended that the appellant
on the basis of the mutual divorce and understanding arrived at that
time was always under impression that she had equal right upon her
children but the respondent did not permit her to meet children
much less take their custody.
4. The appellant after coming to know that respondent was
maltreating the children and was not taking appropriate steps for
day-to-day expenses, necessities, clothing, education etc., filed
petition seeking direction to the respondent to handover the custody
of the said children with further direction that during the pendency of
this petition, the appellant be permitted to meet the minor twins.
5. The respondent filed reply to the petition and took
various preliminary objections regarding maintainability, locus standi,
estoppel etc. On merits, it was submitted that the appellant was not
residing at village Hiranali but was residing at village Palog where the
respondent is also residing. It was submitted that twins were being
looked after by the respondent, his parents and brother and are
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being provided the best facilities. It was further submitted that even
during the period when appellant had been residing with the
respondent she was having extra marital relationship with Yadav
.
Chand, as a result of which, she refused to live in the company of the
respondent. She refused to discharge the matrimonial obligation and
ultimately relationship of husband and wife between the parties
came to an end.
6. Therefore, in such circumstances, when Yadav Chand
who was instrumental for the break-down of the relationship between
the husband and wife, it would not be in the interest and welfare of
the minor children to put them in the care and custody of the
appellant, who otherwise does not even have the requisite financial
resources to bring up these children as she was barely earning only
Rs.6000/- per month, whereas the respondent is in a better financial
position to bring up, maintain and educate the minor children. It was
further averred that the appellant is not interested in the welfare of
the minor children as she has little love and affection for them, as is
evident from the fact that at the time of effecting mutual divorce she
had given in writing that she would have no association with the
children.
7. The appellant did not choose to file any rejoinder to the
reply filed by the respondent and out of the pleadings of the parties,
the learned trial Court on 18.12.2014, framed the following issues:-
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1. Whether the petitioner is entitled for the custody of
master Bhupesh Kumar and master Bhuvnesh
Kumar?..OPP
2. Whether the petition is not maintainable?..OPR
.
3. Whether the petitioner has no locus standi to file the
present petition?..OPP
4. Whether the petitioner is estopped to file the present
petition on account of her own acts and conduct?..OPR
5. Relief.
8. The learned Court below after recording the evidence
and evaluating the same dismissed the petition, constraining the
appellant to file the instant appeal.
9. It is vehemently argued by Shri J.L. Bhardwaj, learned
Advocate, that the findings recorded by learned Court below are
absolutely perverse as these are contrary to the pleadings as also to
the evidence both oral and documentary available on record,
therefore, deserve to be set aside.
10. On the other hand, Shri G.D. Verma, learned Sr. Counsel,
duly assisted by Shri Romesh Verma, learned Advocate, would
contend that the judgment passed by the learned Court below is
based on correct appreciation of the pleadings and the evidence,
thus, cannot be termed to be perverse and therefore, to be affirmed.
I have heard learned counsel for the parties and have
gone through the records of the case.
11. Adverting to the pleadings of the parties, it would be
noticed that the specific case set-up by the appellant in petition
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under Section 25 of the Act is that the minor twins were not being
properly brought up and rather being maltreated by the respondent
as he was not providing day-to-day expenses, clothing and
.
education to the minors.
12. However, as rightly noticed by the learned Court below,
the appellant has not been able to lead any cogent and convincing
evidence to this effect.
13. The appellant appeared as PW1 and stated that it was
on account of unethical, quarrelsome and erratic behaviour of the
respondent, she has compelled to leave her matrimonial home and,
therefore, obtained mutual divorce on 17.02.2012 by executing
affidavit before Executive Magistrate, Sunni. After divorce, the
respondent did not allow her to meet the children despite the
commitment and consent as given by the respondent at the time of
effecting divorce. She further stated that she after getting divorce
from the respondent, married to one Yadav Chand but could not
conceive as she had undergone the family planning operation.
14. Lastly, she stated that respondent had no means and
willing to bring up the minor children and in case the custody of the
children kept with the respondent the future of the minor children
would be totally ruined and since the respondent was not providing
day-to-day expenses, clothing and education etc. to the children,
therefore, the custody be handed over to her.
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15. In cross-examination, the appellant stated that Yadav
Chand was known to her for the last 7-8 years and admitted that she
has not obtained decree of divorce from a competent Court and
.
voluntarily stated that she had taken the divorce at Tehsil. She has
also admitted that she was living with Yadav Chand without getting
decree of divorce. She further stated that she solemnised marriage
with Yadav Chand in the year, 2012. She lastly admitted that
respondent was earning well and he was also having landed
property, whereas she was earning only Rs.6000/- per month.
16. On the other hand, respondent appeared as RW-5 and
tendered in evidence his affidavit Ex.RW5/A, wherein he stated that
the allegations levelled by the appellant against him were totally
false and even during the subsistence of marriage, the appellant was
having affair with Yadav Chand and due to this reason she left his
company and the company of the minor children and even after
repeated request, the appellant did not join the company or take
care of the minor children, rather solemnised marriage with Yadav
Chand. He further stated that the appellant had sworn an affidavit
before the executive magistrate, Sunni, wherein she specifically
stated that both the children would remain with the respondent. He
further stated that the appellant had no love and affection and
respect for the children because after solemnising marriage with
Yadav Chand she did not even tried to meet the minor children and
take care of them. He further stated that the appellant had no
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source of income and had falsely deposed that she was earning by
doing job in the shop whereas the respondent was a carpenter and
earning Rs.25,000/- per month and was thus in a better position to
.
provide education and take care of other things of the children. He
also tendered in evidence compromise Ex. RW5/B and Ext. DA. Even
though this witness was cross-examined but there is hardly anything to
impeach or discredit his testimony as he has specifically and
categorically denied that after divorce, the appellant had been
visiting the children to meet them. He further denied that in
connection with his job, he was required to visit different places and
was not able to take care of the children. He further denied that the
signature of the appellant in Ext. RW5/B were forcibly obtained and
further denied that he had not permitted the appellant to meet her
children.
17. At this stage, it would be relevant to advert to the
testimony of the other witnesses examined by the respondent.
18. Shri Bhup Ram appeared as RW4 and testified that he
was resident of the Panchayat of the parties to the petition and
remained its Pradhan from the year 2011 to 2015. He further stated
that respondent has filed an application before the Panchayat
alleging therein that his wife had illicit relation with Yadav Chand and
due to this their relationship had been strained. Thereafter, both the
parties were called and appellant had told that she was having
mobile phone of Yadav Chand and had been talking to him but
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undertook that she would return the mobile phone to Yadav Chand
and would not keep and maintain any relation with him. The
application has been produced on record as Ext. DB which contains
.
the signature of the appellant encircled ‘B’. He further stated that
Nirmala Devi had soleminised second marriage with Yadav Chand
and was residing with him, whereas the children were being looked
after by the respondent and other family members. This witness was
subjected to cross-examination but nothing contrary could be
elicited therefrom, because this witness categorically denied that
letter Ext. DB was forcibly taken from the appellant.
19. RW3 Sandhya Devi stated that she recognised both the
parties to the petition. She earlier was B.D.C. member at Bahal
Panchayat. She further stated that appellant having an affair with
Yadav Chand on account of which there was discord between the
parties. She further deposed that it was in her presence that the
appellant stated that she wanted to reside with Yadav Chand and
she would not keep her children and it would be the responsibility of
the respondent to maintain them. She further stated that appellant
had no love and affection for her children because had she been
any love and affection for children she would not have left her
children and then proceeded to solemnise marriage with Yadav
Chand.
20. Hira Lal appeared as RW1 and stated that he recognised
both the parties to the petition. He further deposed that appellant did
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not want to reside with the respondent because she was already in
relationship with the Yadav Chand and parties had effected
compromise by executing affidavit Ext. RW1/A before the Tehsildar
.
which contained his signature and thereafter divorce deed was
executed on 17.02.2012 and at that time the appellant had
accepted that her children would reside with respondent because
she could not maintain them. She did not maintain any relationship
with the children as she had soleminised second marriage with Yadav
Chand. Even this witness was again subjected to cross-examination
but nothing contrary could be elicited therefrom.
21. Thus, on perusal of the statements as referred to above, it
becomes apparent that appellant had solemnised marriage with
Yadav Chand and was residing with him.
22. At this stage, certain documents as have been duly
exhibited and proved on record need to be noticed.
23. Ext. DA is the written document executed on 12.02.2012
whereby the appellant has categorically stated that she was handing
over the custody of the children to the respondent and she has no
relationship henceforth with them. It is apt to reproduce the entire
contents of Ext.DA, which reads thus:-
“आज दनाक 12.2.2012 को मै िनमला दे वी प ी उमा
द गाँव पनोहल अपनी पूर होशो हवास से अपने दो बच
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को अपने पित के पास स हाल रह हूँ मेरा इनसे तलाक
के प ात कोई समब नह ं रहे गा !
िनमला दे वी गवाह
.
Sd/- 12.2.2012
1. Sd/-
2. Sd/-
3. Sd/- ”
24. Ext. DB is a letter written by the appellant to the Pradhan
undertaking therein that she would not unnecessarily quarrel with the
respondent and would not keep any relation with Yadav Chand. Ext.
DB which reads thus:-
“सेवा म,
ीमान धान,
ाम पंचायत,नीन !
वषय:- आज के बाद पछली कये गये हरकत के समबद
आज दनाक 11.10.2011 मै िनमला दे वी प ी उमा
द गाँव, प हे ल िन. िल. गवाह के सामने यहाँ तहर र हूँ क मै
आज के बाद अपने प रवार के साथ कसी कार का लड़ाई
झगडा नह ं क ँ गी और न ह मै यादव पु द प राम गाँव पालोग
जसका मोबाइल मेरे पित ने मेरे से बरामद कया है के साथ
कसी कार का समब ध नह ं रखुगी और न ह उसके साथ
कसी कार क बातचीत क ँ गी ! मै अपने घर मे आगे19/04/2018 23:24:21 :::HCHP
11इ सािनअत क तरह रहूंगी! य द आइ दा उपरो कसी कार
क गलती करती पाई जाऊंगी तो मेरे पित का हक़ होगा क वह
मेरे खलाफ कानूनी कायवाह अमल मे ला सकता है ! इसम
मेरा कोई ऐतराज न होगा! मै यह तहर र अपनी होशवास मे.
िलखकर दे रह हूँ.
गवाह शुद िनमला दे वी
Sd/- sd/-”
25. Ext. RW5/B is the compromise entered between the
parties whereby it has been provided that the appellant would be
permitted to meet the children only with the consent of the
respondent because it would adversely impact the education as also
the mental state of the children.
This in entirety is the evidence led by the parties.
26. Before adverting to the relative merits of the case, it is
worthwhile to mention that the minors are currently aged about 12
years and were produced before this Court, but did not show any
interest to accompany the appellant and, as a matter of fact, they
even refused to recognise her, probably because of the time lag,
due to the re-marriage of the appellant. The children are living with
their father, who has sufficient means to maintain them and in a
better financial conditions to look after them. The father of the minors
is a mason and earning sufficiently well from his trade. That apart, the
other family members of the father of the minors, for the time being,
are in a better position to look-after the minors.
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27. On the other hand, the appellant is earning Rs.6000/-
only and there is no evidence led by her that in her absence the
other persons in the family to look after the minors.
.
28. What cannot be ignored at this stage is the fact that the
appellant has got married to Yadav Chand, who, in fact, was
instrumental and the cause of break-down of the marriage of the
parties and, therefore, in such circumstances, it would not be prudent
or wise to handover the custody of minors to the appellant, who have
even refused to recognise her.
29. However, it needs to be clarified that the mere fact that
the appellant has re-married in itself may not be a ground for
depriving her of her parental right to custody and in the given facts
and circumstances this Court is required to look into the other
surrounding circumstances.
30. The principles of law in relation to custody of 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 paramount consideration is the welfare and interest of
the child and not the rights of the parties under a statute.
Indubitably, the provisions of law pertaining to the custody of 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
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fact, no statute, on the subject, can ignore, eschew or obliterate the
vital factor of the welfare of the minor.
31. The question of welfare of 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 any binding precedents. Even
in case of Lekha vs. P. Anil Kumar (2006) 13 SCC 555, which has been
strongly relied upon by the learned counsel for the appellant to
contend that the mere fact that the mother has re-married again is
no ground for depriving her parental right to custody as clearly held
by the Hon’ble Supreme Court that it is the welfare and interest of the
child that has to be looked into and it was observed as under:-
“21. However, in the present case, we have to decide in the interest
of the child as to who would be in a better position to look after the
child’s welfare and interest. The general view that the courts havetaken is that the interest and welfare of the child is paramount. While
it is no doubt true that under the Hindu law, the father is the natural
guardian of a minor after the age of six years, the court whileconsidering the grant of custody of the minor to him has to take into
account other factors as well, such as the capacity of the father to
look after the child’s needs and ro arrange for his upbringing. It also
has to be seen whether in view of his other commitments, the fatheris in any position to give personal attention to the child’s overall
development.”
32. At this stage, it needs to be clarified that no doubt the
previous conduct of the appellant has been rash and reckless in
certain respects but that in no manner has influenced this Court while
passing the instant order.
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33. Once the minor children, who otherwise were intelligent
enough, have shown their complete reluctance to go with the
appellant and, in fact, have not even recognised her, then in such
.
circumstances, there can be no question of handing over the
custody of the minors to the appellant as the same would not be
either in the interest or the welfare of the minors.
34. At this stage, it would be apposite to refer to the
judgment of M.K. Hari Govindan vs. A.R. Rajaram AIR 2003 Mad 315,
wherein the Court held that custody cases cannot be decided on
documents, oral evidence or precedents without reference to
“human touch”. The human touch is the primary one for the welfare
of the minor since the other materials may be created either by the
parties themselves or on the advice of counsel to suit their
convenience.
35. Here reference can also conveniently be made to the
judgment of Hon’ble Supreme Court in Kamla Devi vs. State of H.P.
AIR 1987 HP 34, wherein the Court observed that “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,
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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
.
interest of the children whose welfare requires that he be in custody
of one parent or the other.”
36. Even though a number of judgments have been cited by
either of the parties, but then as held by the Hon’ble Supreme Court
in Nil Ratan Kundu vs. Abhijit Kundu (2008) 9 SCC 413 that the cases of
custody have to be decided on the facts and circumstances of the
each cases and precedents on the subject may not be safe to rely
upon.
37. In the instant case, this Court is of the considered view
that the learned Court below after taking into consideration the well
settled principles of welfare of the child as paramount consideration,
passed the impugned order, which cannot be said to be either
illegal, much less perverse and the same, therefore, calls for no
interference.
38. In view of the aforesaid discussion, I find no merit in this
appeal and accordingly the same is dismissed, leaving the parties to
bear their own costs. Pending application(s), if any, also stands
disposed of.
(Tarlok Singh Chauhan),
Judge.
April 19, 2018
sanjeev
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