(1) FAO-M-27-2017 (OM)

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

FAO-M-27-2017 (OM)
Date of Decision:- 23.2.2018

Ashu … Appellant

Versus

Ashok … Respondent

CORAM: Hon’ble Mr. Justice M.M.S. Bedi
Hon’ble Mr. Justice Gurvinder Singh Gill

Present:- Mr. Sandeep Lather, Advocate for the appellant.

Mr. Kanhiya Soni, Advocate for the respondent.

*****

Gurvinder Singh Gill, J.

1. The appellant Ashu (wife) assails order dated 12.1.2017 passed by the

learned Additional District Judge, Jind, whereby an application filed by her

under Section 26 of the Hindu Marriage Act, 1955 (hereinafter referred to as

‘the Act’) seeking custody of her minor child namely Daksh has been

dismissed and she has been granted visitation rights only to meet her minor

son on every Saturday/Sunday between 10 A.M. to 1 P.M. at residence of her

husband or at the hospital, after seeking permission from the doctor

concerned.

2. A few facts, necessary to notice for disposal of this appeal, are that marriage

of the parties was solemnized on 23.4.2015 and a child namely Daksh was

born out of the wedlock on 6.4.2016. However, differences having crept in

the relationship of the parties, the respondent-husband filed a petition under

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Section 13 of the Act seeking dissolution of his marriage with the appellant.

Since the minor son was staying with respondent, the appellant moved an

application under Section 26 of the Act seeking custody of minor son.

3. The appellant, in her application under Section 26 of the Act averred that she

is natural guardian of her minor child Daksh and that the respondent had

forcibly and without her consent taken away custody of the minor child and

she was not even permitted to meet the child, who is of tender age. It is

further averred that though a Panchayat had been convened on 22.5.2016

wherein her husband had agreed to take her back to matrimonial home but

subsequently he refused to do the same. The appellant, thus, prayed for

handing over custody of minor to the applicant with a further direction to

allow her to meet the child.

4. The respondent-husband, in his reply to the aforesaid application, took a

stand that when his parents went to bring the appellant to the matrimonial

home in seventh month of pregnancy, the appellant stated that she would

give birth to the child and hand over the child to respondent as there was no

relation between them and that the appellant accordingly after giving birth to

the child, left hospital leaving the child to die after delivery. It is further

asserted that the child had born on 6.4.2016 at 8:10 A.M. and was in a

critical condition in Sanjeevni Hospital, Jind and it was at about 11:30 A.M.

that the respondent was informed about the birth of the child and his serious

condition. Upon advice of doctor, the child was rushed to Aastha Hospital,

Jind where he remained in ICU due to his critical condition. It is further

averred that though the appellant was called for breast-feeding the child but

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she did not turn up. Due to deterioration of the condition of the child, he

was taken to Jindal Hospital, Hisar where he is still under treatment and is in

custody of the respondent-husband. The respondent further asserted therein

that the appellant threatened to involve him in false criminal case regarding

demand of dowry etc. and that an application was in fact made to the police,

which was subsequently withdrawn on the ground that as per decision of

panchayat she had agreed to join company of her husband but she did not

return to her matrimonial home. The respondent, thus, took a stand that the

appellant cannot take advantage of her own wrongs and prayed for dismissal

of the application.

5. The learned lower Court upon considering the pleadings and contentions of

the parties held that the custody of the minor cannot be ordered to be given

to appellant observing therein that she has no source of income and was

unable even to maintain herself. The appellant was, however, granted

visitation rights vide impugned order dated 12.1.2017.

6. We have heard the learned counsel for the parties. Admittedly, the parties

are residing separately due to matrimonial discord and a petition under

Section 13 of the Act is pending between the parties. The minor child Daksh

was born on 6.4.2016 i.e. within one year of the marriage of the parties. The

learned lower Court while dismissing the application moved by the

appellant-wife under Section 26 of the Act has been swayed mainly by the

fact that the appellant does not have any source of income. The relevant

extract from the impugned order reads as under :-

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“It is pertinent to mention here that applicant has even

failed to substantiate that as to how she will provide

requisite medical treatment to her child, especially when

along with her written statement, she had filed an

application under Section 24 of the H.M. Act with the

averments that she has no source of income and unable

to keep and maintain herself, as such, prayed for interim

maintenance of Rs.10,000/- per month alongwith

litigation expenses from the petitioner, though the same

was got dismissed as withdrawn lateron. In fact learned

counsel for the petitioner has placed on record a

photocopy of an application under Section 125 Cr.P.C.

for grant of maintenance allowance to the

applicant/respondent, which is pending adjudication.

Faced with the above, this court is of considered opinion

at this stage of this case, custody of the minor can not be

ordered to be handed over the applicant/respondent,

however, at the most, visiting rights to the

applicant/respondent deserves to be granted.”

7. From the arguments addressed before this Court, it appears that the appellant

is apparently a house wife and does not have any independent source of

income and as a result of which she was constrained to move an application

under Section 24 of the Act as well as under Section 125 of Cr.P.C. for grant

of maintenance. However, it is also pertinent to notice that the application

for grant of interim maintenance @ ` 10,000/- per month was admittedly

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withdrawn by the wife, as has been specifically noticed by the lower Court.

Such an act is indicative of the fact that even though the appellant may not

be gainfully employed but she does have some support either from her

family or from some other quarters to sustain herself. It will not be out of

place to mention that once the relations between husband and wife get

strained and one of the parties approaches the Court or the police then the

other party would also indulge in moving applications, petitions at all

possible forums as a counter-blast. We find that undue weightage has been

given by the lower Court to the aforesaid factum of withdrawal of

application for grant of maintenance, which had been filed by her.

8. Though the respondent-husband has set up a case that the appellant,

immediately after delivery of the child, left the hospital leaving the child to

his fate, but such a stand does not appear probable as a woman who has

nurtured the child in her womb for nine months would not be so heartless so

as not to even breast-feed the child and would abandon the child to his fate.

In any case, in our society, the desire to have a male child is also well known

which further makes it highly improbable that a mother after delivering a

male child would leave her to die. The lower Court has given a presumptive

finding regarding wife having left her son unfed and unattended. There is no

time, date or day mentioned by the husband when she was called for breast-

feeding the child in hospital. The vague allegations are not substantiated by

any material evidence on record.

9. It goes without saying that for healthy growth of a child, the love and tender

care of the mother is essentially right from infancy and the childhood

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remains incomplete without love and care of mother. Since the respondent

is serving as a Conductor in Haryana Roadways and such an assignment is

extremely demanding in terms of time and labour, he would certainly not be

able to give quality time to the minor child. In these circumstances, the

mother’s care for upbringing of the child is indispensable. It is the welfare

of the child which is of paramount consideration and such welfare demands

that the minor, in his infancy, is looked after and taken care of by the mother.

10. Even if, the appellant does not have sufficient means and sources of income,

the respondent-husband is duty bound to maintain not only his wife but also

his child and would be expected to make adequate provisions for

maintaining them out of his earnings.

11. In view of our aforesaid discussion we are of the considered view that the

appeal merits acceptance. Accordingly, while accepting the appeal, the

impugned order is hereby set aside and the application filed by the appellant

under Section 26 of the Hindu Marriage Act, 1955 is accepted and it is

ordered that the custody of the minor child Daksh be handed over to the

appellant. In order to facilitate handing over of the child to the appellant, the

parties are directed to appear before the Mediation and Conciliation Centre,

Hisar for a period of three days i.e. on 12 th March, 13th March and 14th

March, 2018, so that the transition is made comfortable for the child. The

Secretary, DLSA, shall facilitate such meetings between appellant and

respondent and shall do all that is needful for the same. The respondent-

husband is, however, granted visitation rights and would be at liberty to meet

on each Saturday at the house of the appellant between 5 P.M. and 7 P.M.

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12. It is made clear that none of the observations made above as regards the

appellant having some support to sustain herself shall prejudice her right to

seek maintenance for herself or for her minor child.

13. The appeal stands accepted accordingly.

( M.M.S. Bedi )
Judge

( Gurvinder Singh Gill)
23.2.2018 Judge
kamal

Whether speaking /reasoned Yes / No

Whether Reportable Yes / No

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