THE HIGH COURT OF MADHYA PRADESH
(HARPREET SINGH Vs PARMEET KOUR)
Jabalpur, Dated : 12-02-2018
Shri Shivendra Pandey, Advocate for the petitioner.
Shri Ankit Saxena, Advocate for the respondent.
1. This petition under Article 227 of the Constitution of India
has been filed challenging the order Annexure P-9 dated 20.12.2017
passed by Second Additional Principal Judge, Family Court, Bhopal in
R.C.S. No. 1072-A/2017 allowing the application filed by
respondent/wife under Section 26 of the Hindu Marriage Act, 1955
seeking custody of an infant female child aged in between 7-8 months.
2. Learned trial Court allowed the custody to the mother
observing that primary natural feeding and nutrition is essential for the
development of the child, which is possible by feeding of the mother,
therefore, the custody ought to be given to the respondent.
3. Learned counsel appearing for the petitioner has contended
that welfare of the child is a paramount consideration while granting
custody of the child. The child is with the petitioner since birth,
therefore, her custody should not be given to the mother because
during this period the child was admitted in the ICU and she could be
survived by artificial feeding, though natural feeding is essential upto
six months. It is further his contention that the respondent is not
mentally sound. She left the house by her own after consultation with
the Doctor while her checking on 8.7.2017 and since then petitioner is
maintaining the child. Thereafter, petitioner filed divorce petition,
therefore, to create pressure this petition has been preferred.
4. On being asked by the Court why the custody of the child
should not be given to the respondent/mother looking to the fact that
being infant the natural feeding by mother is essential for her, it is
urged by learned counsel for the petitioner that separate proceedings
may be drawn by the wife, therefore, passing the order in this regard is
5. On the other hand, learned counsel for the respondent
contends that it is a case wherein the trial Court considering the need
of an infant child aged between 7-8 months has rightly passed the
order, therefore, the reasoning as assigned by the trial Court do not
warrant any interference under Article 227 of the Constitution of
6. After having heard learned counsel for the parties, the custody
of the child during the pendency of the proceedings under the Hindu
Marriage Act may be directed by the Court dealing with such case.
Section 26 of the Hindu Marriage Act, 1955 contemplates that the
Court may, from time to time, pass such interim orders and make such
provisions in the decree as it may deem just and proper with respect to
the custody, maintenance and education of minor children,
consistently with their wishes, wherever possible, and may, alter the
decree, upon application by petition for the purpose, make from time
to time, all such orders with respect to the custody, maintenance and
education of minor children. Such order, if any, passed may be
revoked time to time by the Court.
7. On perusal of the aforesaid provision, it can safely be
observed, by way of interim order also the custody of the child in the
proceedings under the Hindu Marriage Act can be directed by the
Court upon such terms and conditions as may deem fit.
8. Learned trial Court has observed that the child is infant aged
between 7-8 months. The petitioner is not permitting the
respondent/mother even to meet her, however, she is not in a position
to provide natural feeding to her child, which is essential for her
physical and mental development.
9. Learned counsel for the petitioner made several arguments
that for a petty long time the child was survived on artificial feeding,
but such feeding cannot be equated with the natural feeding. The fact
has also come on record that the mother has not been allowed to meet,
however, all these factual aspects cannot be looked into and the
primary consideration is, in case the mother is ready to feed the infant
child, why she should not be permitted irrespective to other
arguments. The petitioner, who is the father, maintained the child
providing treatment, can still maintain her, if she remains with the
mother. However, in my considered opinion at present, the welfare of
the infant child is with the mother.
10. So far as the argument as advanced by the petitioner that the
respondent is not in a fit mental state as revealed from the treatment
papers Annexure P-3 dated 8.7.2017 is concerned, in this regard
petitioner preferred a petition seeking divorce taking plea of cruelty
and other grounds after the said treatment papers. At that time, if the
wife was not in a fit mental state, petitioner must have join her through
next friend but the said fact is missing as apparent from the petition
and proceedings of Section 13 of the Hindu Marriage Act. However, at
present the plea as taken by the petitioner cannot be recognised and it
is a subject matter of adjudication in the Court.
11. So far as maintaining the child is concerned, the Court while
passing the order of custody of a child either interim or final may pass
appropriate orders in the interest of child putting certain conditions, as
may deem fit, in this regard.
12. Considering the aforesaid maintaining the order passed by
the trial Court, I feel it appropriate to direct the petitioner to pay a sum
of Rs.2500/- per month towards maintenance of the child to the wife
along with the medical expenses, if any, spent on child. In this regard
the trial Court has committed error in not imposing the conditions,
which is the power of the Court.
13. In view of the foregoing, this petition being devoid of merit
is hereby dismissed. The impugned order Annexure P-9 dated
20.12.2017 passed by the trial Court is hereby maintained with the
14. It is directed that custody of the child be given to the
respondent/mother within a week by the petitioner. The petitioner is
directed to pay a sum of Rs.2500/- per month towards maintenance of
the child along with the medical expenses, if any incurred by the
mother for maintaining the said child. In addition, as requested by the
learned counsel for the petitioner, it is further directed that the
respondent shall permit the petitioner to meet the child thrice in a
week and shall handover the child to the petitioner for 3-4 hours and
such time will be spent with the child by petitioner as well as
respondent simultaneously. The respondent is also entitled for the cost
of this petition, which is quantified at Rs.5000/-.
Digitally signed by (J.K. MAHESHWARI)
PRADYUMNA BARVE JUDGE