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_______________________________________________________________ vs Praveen Dulta Chauhan & Ors on 21 May, 2019

1

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CMPMO No. 424 of 2017
Reserved on 03.05.2019

.

Decided on: 21.05.2019

Dr. Joginder Singh Chauhan anr.

…..Petitioners

Versus
Praveen Dulta Chauhan Ors.

……Respondents

Coram

The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

1

Whether approved for reporting? Yes.

For the petitioners: Mr. B.C. Negi, Sr. Advocate with
r Mr. Peeyush Verma, Advocate.

For the respondents: Mr. Neeraj Gupta, Sr. Advocate
with Ms. Poonam Gehlot,
Advocate.

Chander Bhusan Barowalia, Judge.

The present petition, under SectionArticle 227 of the

Constitution of India has been maintained by the petitioners

against the order dated 24.07.2017, passed by learned Civil

Judge (Sr. Div.), Shimla, H.P. in CMA No. 103-6 of 2016,

whereby the application filed by the petitioners under Section

25 of the Guardian and SectionWards Act, read with Section 151 of

the Code of Civil Procedure for interim directions with regard

to the custody of minor respondent No. 4, Master Vedant, has

been partly allowed and they were held entitled for visitation

rights of respondent No. 4, Master Vedant once in a week, i.e.

1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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every Sunday.

2. Briefly stating facts giving rise to the present

.

petition are that marriage between respondent No. 1 and son

of the petitioners was solemnized on 09.12.2010 and out of

wedlock of their son and respondent No. 1, a male child was

born on 31.08.2011. After the said marriage respondent No. 1

refused to perform household chores and her behavior towards

the family was not cordial. On account of disputes between the

son of the petitioners and respondent No. 1, several cases

were initiated and during intervening night of 01.12.2016 and

02.12.2016, their son committed suicide, leaving behind a

suicide note stating details of facts and circumstances of his

death. Subsequently, a case under Section 306 of the Indian

Penal Code was registered against respondents No. 1 to 3, at

Police Station New Shimla, H.P. and after their arrest, minor

respondent No. 4, Master Vedant, has been left all alone in the

custody of relatives of the respondents. Hence, the application

under Section 25 of the Guardian and SectionWards Act, read with

Section 151 CPC has been filed by the petitioners.

3. Learned trial Court vide order dated 24.07.2017,

partly allowed the application of the petitioners and held them

entitled for visitation rights of respondent No. 4, Master Vedant

once in a week, i.e. every Sunday. However, their prayer for

custody of minor has been rejected. Hence the present

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petition.

4. Mr. B.C. Negi, leaned Senior Counsel appearing on

.

behalf of the petitioners has argued that paternal grand

parents after loosing their son have esteem love and affection

with the grand son and at this old age they wanted to have the

custody of their grand son. Mr. Negi, learned Senior Counsel

has further argued that though paternal grand parents are

affluent enough to invest anything for the welfare of the grand

son and similar is the situation with respect to maternal grand

parents, however, the paternal grand parents need the

custody of the child, as he is from their blood and afterall he

has to inherit them.

5. On the other hand, Mr. Neeraj Gupta, learned

Senior Counsel appearing on behalf of the respondents has

argued that the litigation inter se the parties, after the death

of the father of the child, had made the relations of parties so

strained that it is difficult for the child to accept the paternal

grand parents and in these circumstances, the petition is liable

to be dismissed, as the paternal grand parents have visitation

rights as per the order of learned Court below.

6. In rebuttal, Mr. Negi, learned Senior Counsel has

argued that it is very difficult for the paternal grand parents to

meet the child in the house of the respondents and the

purpose of visitation rights will only be solved, if the custody of

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the child is given temporarily at least to the paternal grand

parents. In support of his arguments, Mr. Negi, has placed

.

reliance upon Child Access and Custody Guidelines alongwith

Parenting Plan, which are adopted by this High Court.

7. To appreciate the arguments of learned counsel

for the parties, this Court has gone through the records in

detail.

8. It is true that minor child has been deprived of

love and affection of the father due to litigation going on inter

se the couple at that time on their small matters, which is yet

to be adjudicated upon by the criminal Court, where those

proceedings are pending. Late Mr. Nitin Chauhan, seems to

have been a strong bond with the child and with his family.

Which is evident from the fact that he has ended his life, as

per the averments which has come on record. The child is now

studying in D.A.V. Sr. Secondary School, New Shimla and as

disclosed by the parties when present in the Court, the

paternal grand parents are residing in New Shimla and

maternal grand parents alongwith their daughter (mother of

minor) and the child are residing below Khalini. Whenever

child goes to school, he goes by passing near the house of his

paternal grand parents.

9. It has been vehemently contended by the parties

that the mediation in this case was tried many a times,

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however, no fruitful purpose has been achieved. Even this

Court has also tried to make the parties to arrive at some

.

compromise and though the paternal and maternal grand

parents attended the Court, but maternal grand parents

seems to be annoyed for getting them involved in a criminal

case.

10. This Court has considered the aspect that the child

who has to get the love and affection of both grand parents,

has been deprived of getting love and affection of paternal

grand parents. At this stage, this Court has also considered

the aspect that it is Smt. Praveen Dulta Chauhan, the mother,

who is to be granted custody of the minor child, but, at the

same point of time, the emotions of paternal grand parents

are also required to be considered for granting the visitation

rights and especially in the circumstance when they see their

son in the grand child.

11. The grand son of the petitioners is eight years of

age and studying in first class. This Court has taken into

consideration the Child Access and Custody Guidelines

alongwith Parenting Plan as adopted by this High Court and as

per these guidelines, the basic principles of the Courts are to

ensure that the child/children get(s) to spend equal or

substantial and significant time to be showered with love and

affection from both the parents irrespective of parent’s

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conflict and efforts should be made by parties and if

necessary Court should direct parties to mutually agree upon

.

a visitation schedule to be drawn up alongwith Marriage

Counselor within a maximum period of 60 days. Pending,

finalization of mutual final overnight visitation agreement, an

interim access has to be worked out immediately. In the

present case inspite of various conciliatory/ mediatory

proceedings nothing has come up, so it is now for the Court to

decide about the visitation rights.

12. Now coming to the visitation rights of non-

custodial parents for children above 36 months and older. The

guidelines provides that, the non-custodial parent shall be

entitled to weekend visitation every other weekend or every

weekend one night every week. Every other weekend

visitation shall begin Friday at 6:00 p.m. and end at 6:00 p.m.

on Sunday. If every weekend visitation is opted then every

week overnight visitation shall begin either from every Friday

at 6:00 p.m., and end on Saturday 6:00 p.m. Or from every

Saturday 6:00 p.m. and end at 6:00 p.m. on Sunday. It is not

the responsibility of the custodial parent to provide food or

shelter for the child during the non-custodial parent parent’s

visitation.

13. This Court has taken into consideration all the

material which has come on record and the factum of

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pendency of the criminal proceedings against maternal grand

parents and mother and taking into consideration the welfare

.

of the child, this Court concludes that the custody of the child

should remain with the mother and she should bring up the

child with due care, love and emotions. She should give so

much love to the child and her maternal parents should also

shover so much blessings on the child that he should never

feel the loss of his father in his life throughout and always see

till he gets mature, his maternal grand father as his father. So,

the custody of the child is required to be given to the mother,

living with her parents.

14. As far as maternal grand parents are concerned

taking into consideration the fact that they are prosperous

enough to bestow any monitory favour to the minor child, but

the paternal grand parents who had lost their son and have

hopes on the grand son to come and inherit them one day, are

also required to be given visitation rights to the child. Now

once holding that visitation rights are required to be given to

the paternal grand parents, whether granting them visitation

rights in the house of maternal grand parents will meet the

ends of justice? The answer is “no”, because there will be a

stress and atmosphere of negativism, as maternal grand

parents are facing criminal trial for the allegations with

respect to the death of their son-in-law.

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8

15. In these circumstances, this Court finds that

paternal grand parents are required to be given visitation

.

rights in such a manner that they can take away the minor

who is eight years of age once in a week on holiday for eight

hours from morning to evening to have a feeling of oneness

with their grand son. When the holidays will come, this Court

leave it to the parties to decide exact time of week among

themselves that in the first year the custody of the child be

given to the paternal grand parents at least for seven days

intermediately or continuously to get acquainted with the

grand paternal parents.

16. This Court having failed to get the parties

mediated, even though the mediator has made many efforts,

has now to bound the parties as under:

(i) That on every weekend for eight hours
grand maternal parents and mother of the
child will hand over the custody of the minor

to paternal grand parents, who will return
the child in the evening to the maternal
grand parents and mother at their residence.

(ii) Whenever there will be vacation in the
school, the custody of the child will be given
for one week, which mutually the parties will
decide, i.e. with breaks or continuously to
the paternal grand parents for the first year
and for increase or decrease of the same, if
need be, the parties are at liberty to
approach this Court.

(iii) It is expected from the parties that they
should love the child. Loving the child does
not mean that they should do something to
make the child comfortable, it means that

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they should do something with which the
child develops and progress to become a
very able, competent, smart person in the
times to come. Afterall the mother, maternal

.

grand parents and paternal grand parents

have a vital role to play throughout the life
of the child and till the time he gets mature
enough to understand his well-being. This
Court expects the parties to do best as per

their intellectual, physical and monitory
capacities for the welfare of the child.

(iv) It is also expected that the interest of
the child should be acquainted with the
activities, when taken on weekends making

the physical and mental growth by providing
him sports articles and good books to read
and to be taught, including religious epics.

This Court is making these observations, as the custody of the

child has been decided by the order of the Court and the

parties have failed to mediate themselves.

17. With the aforesaid direction, the petition, so also

pending application(s), if any, stands disposed of.

(Chander Bhusan Barowalia)

Judge

May 21, 2019
(raman)

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