FAO-2592-2016 -1-
IN THE HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH
FAO-2592-2016 (OM)
Date of Decision: 18.5.2017
Chand Singh
….Appellant.
Versus
Amrit Pal Kaur and others
…Respondents.
CORAM:- HON’BLE MR. JUSTICE AJAY KUMAR MITTAL.
HON’BLE MR. JUSTICE HARINDER SINGH SIDHU.
PRESENT: Mr. Jaswinder Singh Grewal, Advocate for the appellant.
Mr. Priyanshu Kamra, Advocate for the respondents.
AJAY KUMAR MITTAL, J.
1. Delay in refiling and filing of the appeal is condoned.
2. Having remained unsuccessful before the trial court in a
petition under Section 25 of the Guardian and Wards Act, 1890 (in short
“the Act”) for the custody of minor child, namely, Ravneet Kaur, the
appellant-husband has approached this Court by way of instant appeal
challenging the judgment dated 23.2.2015 passed by the Additional Civil
Judge (Senior Division), Abohar (exercising the powers of Guardian Judge
under the Guardian and Wards Act).
3. A few facts necessary for adjudication of the instant appeal as
narrated therein may be noticed. The marriage of the appellant with
respondent No.1 was solemnized in January, 1999 and out of the said
wedlock, a female child, namely, Ravneet Kaur was born on 4.2.2003.
1 of 5
::: Downloaded on – 06-06-2017 16:15:23 :::
FAO-2592-2016 -2-
After few months of the marriage, the relations between the appellant and
respondent No.1 became strained. Respondent No.1 moved a complaint to
the Women Cell, Ferozepur against the appellant and his parents and a
compromise was effected between the parties with the intervention of
Panchayat on 21.11.2003. On the basis thereof, the appellant and
respondent No.1 took a panchayati divorce. Respondent No.1 was not
providing proper education to minor Ravneet Kaur. She was not giving
proper care to the minor and her career and future was in dark. The
marriage between the appellant and respondent No.1 was dissolved by the
Court on 21.7.2010 and thereafter she remarried and the minor was living
with respondents No.2 and 3 (parents of respondent No.1). They were not
taking care of her and further schooling and career of the minor was unsafe.
Accordingly, the appellant filed a petition under Section 25 of the Act for
the custody of the minor female child. The said petition was contested by
the respondents by filing the written statement. Various preliminary
objections were raised therein. The other averments made in the petition
were denied and a prayer for dismissal of the same was made. From the
pleadings of the parties, the trial court framed the following issues:-
1. Whether the petitioner is entitled to custody of her
minor daughter, namely, Ravneet Kaur, as prayed
for? OPA
2. Whether the petitioner has not approached the
Court with clean hands? OPR
3. Relief.
4. The trial court after hearing the arguments dismissed the
petition vide judgment dated 23.2.2015 holding that the appellant had failed
2 of 5
06-06-2017 16:15:24 :::
FAO-2592-2016 -3-
to lead an iota of evidence. Hence, the present appeal.
5. Learned counsel for the appellant submitted that the appellant
being the father of the minor had every right to claim the custody of the
minor.
6. On the other hand, learned counsel for the respondents
supported the judgment passed by the trial Court and submitted that the trial
Court had rightly declined the custody of the minor to the appellant.
7. After hearing learned counsel for the parties, we do not find
any merit in the appeal.
8. The Apex Court in Gaytri Bajaj v. Jiten Bhalla 2012(4) RCR
(Civil) 603 discussing the issue relating to custody of minor child had held
as under:-
“14. From the above it follows that an order of custody
of minor children either under the provisions of The
Guardians and Wards Act, 1890 or Hindu Minority and
Guardianship Act, 1956 is required to be made by the
Court treating the interest and welfare of the minor to be
of paramount importance. It is not the better right of the
either parent that would require adjudication while
deciding their entitlement to custody. The desire of the
child coupled with the availability of a conducive and
appropriate environment for proper upbringing together
with the ability and means of the concerned parent to
take care of the child are some of the relevant factors that
have to be taken into account by the Court while
deciding the issue of custody of a minor. What must be
3 of 5
06-06-2017 16:15:24 :::
FAO-2592-2016 -4-emphasized is that while all other factors are undoubtedly
relevant, it is the desire, interest and welfare of the minor
which is the crucial and ultimate consideration that must
guide the determination required to be made by the
Court.”
9. The courts while adjudicating the issue of custody of minor has
to ensure that the interest and welfare of the minor is of paramount
importance. While deciding the issue of custody of minor, the better rights
of either parent would not be of great significance. The factors to be borne
in mind by the Court while allowing custody to a parent is to see the desire
of the child along with the availability of a conducive and appropriate
environment for proper upbringing and further the ability and means of the
concerned parent to take care of the child. In other words, no doubt, all
other factors cannot be said to be irrelevant but it is the desire, interest and
welfare of the minor which is the crucial and ultimate consideration that
must guide the determination required to be made by the Court.
10. Undisputedly, the father of the minors is the natural guardian,
though custody of a minor who has not completed the age of five years shall
ordinarily be with the mother, and has the right of custody unless the Court
comes to the conclusion that the father is unfit to have the custody and that
it is not for the welfare of the minor that the father should be allowed to
exercise his right. Guardianship is in the nature of a sacred trust. In the
present case, the appellant had not produced any evidence to show that the
daughter was not happy in the company of her mother-respondent No.1 or
her parents. She appeared to be in a position to look after the daughter and
provide with adequate educational facilities and also to maintain her in a
4 of 5
06-06-2017 16:15:24 :::
FAO-2592-2016 -5-
proper and congenial manner. Further, the child being a daughter, her wish
was of paramount consideration and she was already living with respondent
No.1 and her parents, thus, there was no occasion to displace her residence
by giving custody to the father. Moreover, the girl child is now more than
14 years of age and her interest would be better served by allowing her to
remain in the custody of respondent No.1 and her parents. The appellant
had miserably failed to prove that welfare of the daughter would be better
served if the custody is granted to him. Thus, keeping in view the facts and
circumstances of the case, it would not be in the interest of the daughter to
dislodge her from her natural mother-respondent No.1 and maternal parents
when there were no specific reasons or evidence produced on behalf of the
appellant to do so.
11. In view of the above and the findings recorded by the trial
court, no ground is made out for handing over the custody of the minor to
the appellant. Accordingly, the appeal being devoid of any merit, is hereby
dismissed.
(AJAY KUMAR MITTAL)
JUDGE
May 18, 2017 (HARINDER SINGH SIDHU)
gbs JUDGE
Whether Speaking/Reasoned Yes
Whether Reportable Yes
5 of 5
06-06-2017 16:15:24 :::