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Digvijay Singh vs Balvinder Kaur & Anr on 26 October, 2018

FAO No.6456 of 2018 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
FAO No.6456 of 2018
Date of Decision:26.10.2018
*****
Dr. Digvijay Singh
. . . . . Appellant
Vs.
Mrs. Balvinder Kaur and another
. . . . . Respondents
*****
CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN
HON’BLE MR.JUSTICE HARINDER SINGH SIDHU
*****

Present: – Mr.Vijay Kumar Jindal, Sr. Advocate, with
Mr. Gopal Saini, Advocate,
for the appellant.

Mr.Vikas Bahl, Sr. Advocate, with
Mr.Nikhil Sabharwal, Advocate,
for the caveator/respondent No.2.
*****

RAKESH KUMAR JAIN, J.

This appeal is directed against the order dated 27.9.2018

passed by the Family Court by which custody of the minor child (female),

born on 10.5.2015, presently little above 3 years of age, has been given to

the appellant and her visitation rights have been given to the respondents,

who are her maternal grandparents.

In brief, the appellant got married to the daughter of the

respondents on 10.10.2010. They were blessed with a girl child on

10.5.2015. The wife of the appellant died on 11.12.2016. The appellant is a

Doctor so as respondent No.2. The respondents made a complaint against

the appellant for investigation of the cause of death of their daughter. They

have also filed criminal miscellaneous petition before this Court under

Section 482 of the Cr.P.C. for seeking a direction. The respondents had filed

an application before the Family Court under the Guardians and Wards Act,

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1890 for appointing them as guardians of the person and property of their

minor grand-daughter. The appellant has got remarried to another Doctor

who is a divorcee but issueless. The application for guardianship was

contested by the appellant basically alleging that the minor child is in his

custody since her birth. The respondents have only two daughters. One of

their daughters is living in USA and is issueless whereas the other one,

married to the appellant, has died. Respondent No.2 is a child specialist

having his own hospital in Nawanshahr whereas it is alleged that the

appellant, who is also living in Nawanshahr, has his parents at Ambala.

On the pleadings of the parties, the Court framed as many as

five issues on 26.9.2017. Although both the parties led their respective oral

as well as documentary evidence to claim guardianship of the minor child

but the Court appointed the appellant as the guardian of the person and

property of the minor child and at the same time, granted the following

rights to the respondents: –

“Therefore, even though the minor has
been ordered to be left in the custody of her
father, the maternal grandparents must be
given a reasonable opportunity of meeting
the child as it would be inappropriate and
undesirable to keep the child away from her
maternal grandparents. They must have
adequate opportunity to see the minor
child, spend time with her and to develop
bonds of affection with her. Accordingly,
respondent shall give petitioners a
reasonable opportunity to meet minor child,
spend time with her from morning of second
Saturday of every month till the evening of
Sunday and respondent shall permit

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maternal grandparents to take away the
minor child along with them during this
period. Further, respondent shall give the
petitioners half of the summer vacations
and winter vacations to spend with the
minor child. The petitioners after having
spent the above said period with the child,
shall leave the minor child to her father’s
house in time and ensure the safety and
security of the child. ”

Admittedly, no appeal has been filed by the

respondents/maternal grandparents against the order dated 27.9.2018, who

are only defending the impugned order in this appeal to the extent of

visitation rights.

Learned counsel for the appellant has submitted that the

appellant has no objection insofar as the following order is concerned: –

“They must have adequate opportunity to see
the minor child, spend time with her and to
develop bonds of affection with her.

Accordingly, respondent shall give
petitioners a reasonable opportunity to meet
minor child.”

However, the appellant has an objection about the rest of the

order by which the Court has allowed the respondents to keep the custody of

the minor child during the night time as it has held that the respondents

would be entitled to spend time with her from morning of second Saturday

of every month till the evening of Sunday. He has also objected to the order

by which the respondents/grandparents have been allowed to take her care

during this period and also to keep the custody of the minor child for half of

the summer vacations and half of the winter vacations. It is submitted by

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learned counsel for the appellant that the visitation rights granted by the

learned Court below, granting inter-mediatory custody to the respondents, is

illegal and is not in the welfare of the minor child. Counsel for the appellant

has submitted that the respondents have already filed a petition under

Section 482 of the Cr.P.C against the appellant in this Court for seeking a

direction to look into their complaint made to the police authorities to

enquire into the death of their daughter in which they have raised finger

towards him and in that circumstance, there are all possibilities that the

respondents would tutor the minor child against the appellant to whom her

custody has been finally given by the learned Court below. It is also

submitted that once he has got remarried and his wife is also a Doctor, who

does not have any issue from the previous marriage and also there is no child

out of the present wedlock, the appellant and his wife would take care of the

minor child. In support of his submission, he has relied upon a decision

rendered by the Supreme Court in Civil Appeal No.5099 of 2007 titled as

“Gaurav Nagpal Vs. Sumedha Nagpal” decided on 19.11.2008.

On the other hand, learned counsel for the respondents, who is

on caveat, has submitted that although the respondents being the maternal

grandparents of the minor child are entitled to her custody but they were

satisfied with the visitation rights give to them by the learned Court below.

It is submitted that they had only two daughters. One of their daughters,

who is married and is living in US, has no issue and the other daughter

married with the appellant is no more and has left behind her daughter. It is

also submitted that respondent No.2 is a child specialist having good

practice in Nawanshahr whereas his wife/respondent No.1 is a homemaker

and has ample time to look after the minor child, who is just about three

years of age. It is also submitted that the Court below has already granted

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them visitation rights to meet the minor child but the appellant is

unnecessarily raising an objection about taking the minor child on second

Saturday of every month till the evening of Sunday. As a matter of fact, the

minor child is not going to be taken out of city as both of them are locally

placed/residents of Nawanshahr. Similarly, it is submitted that the learned

Court below has rightly given them permission to spend half of the summer

and winter vacations with the child which is also a process of development

of a bond of affection with the minor child keeping in view the facts and

circumstances of the case that the respondents have lost her daughter at the

young age and has no other child with them.

Learned counsel for the respondents has also relied upon

decisions of the Supreme Court in the cases of “Smt. Anjali Kapoor Vs.

Rajiv Baijal” 2009(3) RCR (Civil) 903 and “Shyamrao Maroti Korwate Vs.

Deepak Kisanrao Tekam” 2010(4) RCR (Civil) 647. It is also submitted

that the respondents would withdraw their petition filed against the appellant

under Section 482 of the Cr.P.C. if the impugned order is maintained by this

Court so as to remove the doubt from the mind of the appellant that they

would tutor their grand-daughter against the appellant.

We have heard learned counsel for the parties and perused the

record.

There is no straight jacket formula for granting visitation rights

to the maternal grandparents as against the custody of the minor child being

retained by her further after the death of her mother. It all depends upon the

facts and circumstances of each case.

In the present case, the respondents are the maternal

grandparents of the minor child. Their daughter was married to the appellant

on 10.10.2010 and after 5 years of their marriage the minor child was born

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on 10.5.2015 but unfortunately the daughter of the respondents died on

11.12.2016 who herself was the child specialist. It is an altogether different

matter that the appellant had solemnized the second marriage immediately

thereafter because the learned Court below has already granted the custody

of the person and property of the minor child to her father (appellant) by the

impugned order but only visitation rights have been given to the

grandparents/respondents. It is also a matter of fact that the respondents

have another daughter who is living in US after her marriage but has no

child. The Court has thus found that the appellant would be natural guardian

of the minor child but at the same time it has also been found that the love of

maternal grandparents towards their grand-daughter, especially after the

demise of her daughter, cannot be ignored. It is an admitted fact that after

the death of their daughter they had been looking after the minor child for

some time. The respondents have also shown their magnanimity in making

their statement before the Court that they would withdraw the petition filed

under Section 482 of the Cr.P.C. before this Court for seeking a direction

against the appellant in respect of the investigation in the death of their

daughter as now they are more concerned about the welfare of their

grand-daughter and are in need of her love and affection. The Court below

has rightly observed that they need opportunity and time to develop bond of

affection with the minor child for which the appellant has to provide them

reasonable opportunity to meet the minor child, spend time with her and in

that process allowed them to take away the minor child on second Saturday

of every month till the evening of Sunday. Otherwise, if this mechanism is

not adopted then simply by meeting the child for 2-3 hours on a particular

day would not develop any kind of bond of the minor child with her

maternal grandparents. Similarly, learned Court below has also rightly

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granted the liberty to the respondents to spend half of the summer and half

of the winter vacations with the minor child which is also a part of

developing a bond. The judgment relied upon by learned counsel for the

appellant in the case of Gaurav Nagpal (Supra) is rather in favour of the

respondents because in that case, the custody was give to the wife but while

modifying the order, the visitation rights were given to the husband to have

the custody for 7 days of the child during the long holidays of vacation

covering more than two weeks. In the judgment relied upon by the

respondents in the case of Smt. Anjali Kapoor (Supra), it has been held that

the maternal grandmother would be entitled to the custody of a child after

remarriage of the father. Similarly in the case of Shyamrao Maroti Korwate

(Supra), the similar view has been taken by the Hon’ble Supreme Court.

Thus keeping in view the facts and circumstances, we are of the

considered opinion that there is no error in the order passed by the learned

Court below and hence, the present appeal, found to be without any merit, is

hereby dismissed.

(RAKESH KUMAR JAIN)
JUDGE

(HARINDER SINGH SIDHU)
26.10.2018 JUDGE
Vivek

Whether speaking /reasoned : Yes/No
Whether Reportable : Yes/No

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