FAO No.6456 of 2018 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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FAO No.6456 of 2018
Date of Decision:26.10.2018
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Dr. Digvijay Singh
. . . . . Appellant
Vs.
Mrs. Balvinder Kaur and another
. . . . . Respondents
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CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN
HON’BLE MR.JUSTICE HARINDER SINGH SIDHU
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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.
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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 permit2 of 7
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FAO No.6456 of 2018 -3-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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FAO No.6456 of 2018 -4-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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