Punjab-Haryana High Court

Smt. Rayman vs Lekh Raj Kukreja on 9 February, 1995
Equivalent citations: (1995) 110 PLR 586

Bench: A Chaudhary

JUDGMENT

Amarjeet Chaudhary, J.

1. The career of two innocent minors is at stake and made un-certain by tug of war due to hostile attitude of their parents who are running in diagonally opposite directions, caring little for the betterment and well being of their own progeny while levelling allegations and counter allegations even to the extent of immorality against each other. In such a situation a more onerous duty is cast upon the Court to vouch safe the welfare of the minors.

2. This appeal is directed against the order of Guardian Judge, Ambala, dated 20.01.1990 whereby the custody of minor children, namely, Gorav and Neha, now aged 16 and 12 years respectively, was given to their father-Lekh Raj Respondent.

3. Lekh Raj – respondent herein moved a petition for custody of his two children i.e. Gorav, a son aged 12 years and Neha, a daughter aged 7 years against Smt. Rayman – appellant herein.

4. Skipping superfluities, the case of respondent is that parties to the litigation were married on 28.4.1977 according to Hindu rites and ceremonies. From the wedlock of the parties, three children were born. The first child Gorav was born on 8.2.1978, the second daughter, Neha, was born on 18.3.1983 and the third daughter Rupika was born in adoption to Mrs. Anup Dhillon, sister of the appellant. The respondent claimed custody of the aforementioned two children on the grounds that he came to know on 13.7.1987 that appellant was living in adultery with one Virender Kashyap, a Building Contractor and since then he had not shared bed with the appellant. The relations between the parties became strained due to said love affairs of appellant and Virender Kashyap. Since illicit affairs of the appellant with Virender Kashyap could bring bad effect on the minds of the children, who were growing up their custody was claimed by the respondent in welfare of the minors.

5. The appellant contested the petition inter-alia on the grounds that the petition was not signed and verified in the manner prescribed under the Code of Civil Procedure and that the same was accompanied by declaration of the petitioner as required under Section 10(3) of the Guardian & Wards Act. The appellant denied the allegations of adultery, unchastity and un-faithfulness and also denied that she was carrying on extra martial relations with Shri Virender Kashyap. On the other hand, she alleged that respondent was having illicit relations with one Mrs. Nisha Negi of Dehradun who had been appointed as local guardian of minor Gorav who is studying at Mussorrie and that the intention of the respondent is to get the properties transferred in his name which are now standing in the name of appellant. It is also the allegation of the appellant that she was harassed by the respondent through his brother and other family members, and was maltreated and insulted with the result that she had to lodge several complaints with the police. The appellant claimed the custody of the children on the allegations that the atmosphere of the house of respondent was not conducive to the well being of the minors.

5. In replication, the respondent denied the averments made in the written statement and the following issues were framed by the learned Guardian Judge:-

1. Whether the plaintiff is entitled to the custody of the minors, as alleged? OPP.

2. Whether the petition has not been signed and verified as pet CPC as alleged? If so its effect? OPP.

3. Relief.

6. On 13.6.1990 learned counsel for the appellant made a statement that he did not press the issue No. 2.

7. The learned Guardian Judge, after perusing evidence led by the parties, came to the conclusion that it was in the interest and welfare of the minors that they should remain in custody of their father-respondent and it is this order which has been impugned in the present appeal.

8. I have heard learned counsel for the parties and perused the material on record.

9. The main attack of the respondent in the case is that the appellant is living in adultery with one Virender Kashyap and that she had the vices taking whisky and beer and if the minors were allowed to remain in her custody, it would have bad effect on their career. In support of his case, the respondent-husband produced PW1 Lekh Raj Aneja, who was a neighbour of the parties and deposed that in July, 1987 when he came after attending a dinner party at about 11 PM, he saw a lady making noise in the presence of appellant and on his enquiry, he came to know that the said lady was telling that the appellant had spoiled her matrimonial life and that the appellant was having illicit relations with her husband. PW2 Jetha Nand Kukreja is real brother of the respondent, who deposed that in January, 1988 the respondent came to him and told that his wife – appellant was having illicit relations with one Virender Kashyap. He also deposed that the appellant confessed before him that she had committed mistake and that she would not repeat the same. It was also deposed by this witness that the appellant came to him with one Smt. Shashi wife of Air Marshal Naresh Kumar and requested for being pardoned for the mistake. PW3 Nisha Negi deposed about the conduct of the appellant viz-a-viz respondent and that she was having a relationship of sister and brother with the respondent and that her husband was acting as local guardian of Gorav and that in November, 1988 the appellant came to Dehradun in a white contessa car with a gun-man in order to take Gorav. However, Gorav refused to accompany her. PW4 H.K, Malhotra deposed that he knew the parties since 1978 and was having dose association and family relations with the parties and he observed that the parties were maintaining the cordial relations and were living a peaceful life till July, 1986. Thereafter, the parties shifted to Panchsheel accommodation where they lived on the first floor from June 1985 to July, 1986. He further deposed that a contractor, namely, Virender Kashyap visited the residence of parties 2-3 times and that the appellant had told him that Mr. Kashyap was their contractor. In April, 1988 when he alongwith his wife visited the house of the parties in Panchsheel Market, he noticed some change in the attitude of appellant-wife. In the month of June, 1988 respondent told him that his wife was having illicit relations with Virender Kashyap and he also deposed that he offered his services for patching up the matter. Respondent-husband appeared in the witness box as PW5 and supported the contents of petition. PW6 Smt. Shashi Naresh Kumar deposed that the appellant-wife told her that she was having love affairs with Virender Kashyap and that she could not live without Mr. Kashyap. She told further that the appellant also took whisky at her residence and that the appellant had talks with Virender Kashyap on telephone. PW7 Gorav Kukreja deposed that his mother used to be absent from the house and that she had no love or affection for him and that Virender Kashyap took him and the appellant to witness a. Circus. Virender Kashyap also took his mother to Anker-inn (Guest House) where he was presented a bat and cap and the appellant was presented perfume. He further deposed that he was made to wait for about half and hour down-stairs and that after half an hour the appellant returned with Virender Kashyap. He also expressed his willingness to go with his father.

10. Appellant Raymon Kukreja appeared as RW-1 and supported the averments made in the written statement alleging that respondent-husband was a defaulting party who was living in adultery and it was not in the interest of minors to live with him and that he was forcing her to transfer the properties in his name and that he is permanently settled in Afghanistan, thus, it was not possible for him to look after the minors. She denied her illicit relations with Virender Kashyap. RW-2, Yash Pal, Ahlmad of the Court of Smt. Rekha Mittal, Judicial Magistrate, Chandigarh proved the fact that a complaint under Section 498-A IPC was filed by the appellant against the respondent. RW-3 Naval Singh, constable proved DDR Nos. 6-A and 9-A dated 30.07.1988 regarding complaints lodged by the appellant. Similarly, RW-4 Kameshwar Prashad, Head Constable proved DDR No. 10-A dated 26.07.1988.

11. After going through the evidence led by the parties and considering the circumstances of the case, I am of the considered view that there is no infirmity with the orders passed by the Guardian Judge. The unique feature of the case is that the appellant-wife led only her evidence without any corroboration and produced only complaints lodged by her with the police, truthfulness whereof has not been proved. The more important aspect is that there is nothing on record to show as to what source of income the appellant is having and where is her place of permanent abode. The circumstantial evidence as well as unimpeachable testimony of PW6 Smt. Shashi Naresh Kumar who is an independent witness and that of minor Gorav leaves no doubt in the mind of the Court and compels the Court to draw an inference that it is not in the interest of minors to keep them under the custody of the appellant. Un-impeachable testimony of PW6 Shashi Naresh Kumar further proves that the appellant takes whisky and has relations with one Virender Kashyap, who was seen by the said PW with her own eyes and the appellant and Virender Kashyap met each other in her presence. No motive has been attributed to PW6 Shashi Naresh Kumar, who is stated to have been having old acquaintance with the parties even from Afghanistan.

12. The most important piece of evidence in this case is statement of PW7 Gorav, who, in un-ambiguous terms stated that he alongwith his mother was taken by Virender Kashyap to witness a circus. Virender Kashyap also took the appellant to Anker-inn (Guest House) where Gorav was presented a bat and cap and the appellant was presented perfume. He was made to wait for half an hour down-stairs. After half an hour the appellant returned with Virender Kashyap. He also deposed that during Dushehra holidays, the appellant visited Mussorrie with Varinder Kashyap and a gunman. They contacted the incharge of the hostel but he (Gorav) expressed his willingness to go with his father. He also stated that he wanted to live with his father and not with his mother. The learned Guardian Judge with a view to ascertain whether this witness had attained the age of discretion, put numerous questions to him and it was after satisfying himself that the learned Guardian Judge recorded his statement. Testimony of aforesaid two witnesses is sufficient to dislodge the claim of the appellant. In addition, a neighbour PW1 Lekh Raj Aneja and PW4 H.K. Malhotra, who was posted in Indian Embassy in Kabul and was having close association with the parties also supported the version of respondent.

13. The bald statement of the appellant which has not been corroborated by any other witness and the complaints relied upon by her do not support her claim.

14. Learned counsel for the appellant relied upon Babu Rain and Anr. v. Keshwa ChandJoshi, (1977) 79 P.L.R. 614 wherein it was held that following factors should be taken into consideration for appointment of guardian of a minor:-

“i) the natural guardian should be given preference, if his appointment is not found to be against the welfare of the minor or unless he is found to be unfit;

ii) preference of the minor, if he is sufficiently old, should be given due weightage;

iii) the only and the paramount consideration for the purpose of appointing Guardian of minor is the welfare of the minor”.

15. From the evidence by the parties it can safely be concluded that the appointment of appellant as Guardian of minor is against their welfare. PW7 Gorav categorically stated that he wants to live with his father. It is also for the reason that the respondent possesses sufficient means and properties to advance the career of the minors. It was also brought to the notice of the Court during the course of arguments that the respondent has since come to India from Afghanistan and has settled here. Thus, respondent can safe-guard the interest of minors in a batter way than the appellant. The wife-appellant despite being de facto guardian of minor Neha did not produce her in the witness box and it is in these circumstances that the learned counsel for the respondent rightly relied upon Gopal Krishan Ji Kether v. Mohamad Haji Latif and Ors., A.I.R. 1968 S.C. 1413 wherein it was held that if a party in possession of best evidence which could highlight the issue in controversy, withholds the said evidence, the Court has to draw an adverse inference against that party notwithstanding that onus of proof did not lie on the said party.

16. With a view to satisfy myself, I also called the parties alongwith minors in the Court and from the conversation with the minors, I reached the conclusion that the minor Gorav had no liking for the appellant and minor Neha expressed her willingness to live with his brother as she had been deprived of brotherly love due to unfortunate differences between their parents.

17. For the foregoing reasons, this appeal is dismissed. Civil Misc. Application No. 827 of 1994 moved by the appellant for placing on record the additional evidence in the form of Progress Card of Neha for the year 1991-92 and 1992-93 is also dismissed as I have come to the conclusion that it is not in the interest of minors to live under the custody of appellant and no useful purpose will be served even if the additional evidence is allowed to be adduced.

18. It is, however, desirable that Kumari Neha is admitted in some boarding school at Mussorrie where her brother-Gorav is also studying to enable the sister and brother to meet frequently. The school authorities shall also allow Mrs. Raymon to meet her daughter once in a month on some holiday so that her studies may not suffer.

19. Any observation/expression made herein would mean no expression of opinion in any other case arising between the parties. In other words, the findings recorded in this case are limited only for the decision of this case.