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IN THE HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH

FAO-487-2016

Date of Decision: 24.5.2017

Jagdev Singh
….Appellant.

Versus

Mandeep Kaur
…Respondent.

CORAM:- HON’BLE MR. JUSTICE AJAY KUMAR MITTAL.
HON’BLE MR. JUSTICE HARINDER SINGH SIDHU.

PRESENT: Mr. Vikram Preet Arora, Advocate for the appellant.

Mr. J.S. Moudgill, Advocate for the respondent.

AJAY KUMAR MITTAL, J.

1. Having lost before the trial court in a petition under Section 25

of the Guardian and Wards Act, 1890 (in short “the Act”) for the custody of

minor child, namely, Armandeep Singh, the appellant-husband has

approached this Court by way of instant appeal challenging the judgment

dated 23.10.2015 passed by the Additional Civil Judge (Senior Division),

Amloh (exercising the powers of District Judge).

2. Put shortly, the facts necessary for adjudication of the instant

appeal as narrated therein may be noticed. The marriage between the parties

was solemnized on 15.10.2006 at village Shamshpur, Tehsil Amloh. From

the said wedlock, son Armandeep Singh was born on 3.7.2007. The parties

could not adjust with each other and got panchayati divorce and later on

filed a petition under Section 13B of the Hindu Marriage Act, 1955 for a

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decree of divorce by mutual consent which was granted vide judgment and

decree dated 20.10.2008. At the time of getting divorce by mutual consent,

it was agreed that neither they will file any suit/proceedings against each

other nor the appellant would file a petition for custody of the minor.

Further, the respondent agreed that she would maintain and keep the minor

child and would not claim any maintenance from the appellant who had

already paid lump sum amount to her on account of permanent alimony.

However, the respondent lateron filed a petition under Section 125 of the

Code of Criminal Procedure on behalf of the minor and the trial Court

granted maintenance @ ` 1500/- per month to the minor. According to the

appellant, the respondent had already contracted second marriage with

Satnam Singh and was residing with her at village Uksi Dudhal, Tehsil

Payal and the minor was residing with his maternal grand mother (Nani) at

village Shamshpur. The respondent was not in a position to keep and

maintain the minor and the minor was residing without care and custody of

his mother and father. Accordingly, the appellant filed a petition under

Section 25 of the Act for the custody of the minor, namely, Armandeep

Singh. The said petition was contested by the respondent by filing a written

statement. Besides raising various preliminary objections, it was pleaded

that the present petition was filed by the appellant only to avoid the payment

of maintenance to the minor son which was allowed by the Judicial

Magistrate Ist Class, Amloh. The minor child was residing with the mother

at village Shamshpur and she had a right to claim maintenance for the

welfare of the minor and had been rightly considered natural guardian of the

minor in the petition under Section 125 of the Code of Criminal Procedure.

It was further pleaded that the appellant was enjoying with the second wife.

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Even at the time of giving divorce, it was agreed between the parties that

they would not file any suit/ proceeding against each other nor the appellant

would file a petition for custody of the minor. The respondent would

maintain and keep the minor with her and would not claim any maintenance

from the appellant. The other averments made in the petition were denied

and a prayer for dismissal of the same was made. Rejoinder was filed

controverting the averments made in the written statement and reiterating

that made in the petition. From the pleadings of the parties, the trial court

framed the following issues:-

1. Whether the petitioner is entitled for custody of

minor child, namely, Armandeep Singh? OPA

2. Whether the petition is not maintainable? OPR

3. Relief.

4. In support of his case, the appellant examined himself as PW1,

Balwinder Kaur as PW2, Gulzar Singh as PW3 and Jaswinder Singh as

PW4 (wrongly mentioned as PW3 in the judgment). On the other hand, the

respondent besides examining herself as RW1, also examined Tejinder

Singh as RW2 and Avtar Singh Lamberdar as RW3.

5. The trial court on appreciation of the evidence led by the

parties dismissed the petition under Section 25 of the Act vide judgment

dated 23.10.2015 holding that the custody of the minor could not be

disturbed until or unless the Court is satisfied that the future or life of the

minor child was at stake in the hands of the present guardian. Hence, the

present appeal.

6. Learned counsel for the appellant submitted that the respondent

has proceeded to foreign country after leaving the minor child in India. It

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was further submitted that the appellant being the father of the minor had

every right to claim the custody of the minor.

7. On the other hand, learned counsel for the respondent

supported the judgment passed by the trial Court and submitted that the trial

Court had rightly declined the custody of the minor to the appellant.

8. After hearing learned counsel for the parties, we do not find

any merit in the appeal.

9. The Apex Court in Gaytri Bajaj v. Jiten Bhalla 2012(4) RCR

(Civil) 603 discussing the issue relating to custody of minor child had held

as under:-

“14. From the above it follows that an order of custody

of minor children either under the provisions of The

Guardians and Wards Act, 1890 or Hindu Minority and

Guardianship Act, 1956 is required to be made by the

Court treating the interest and welfare of the minor to be

of paramount importance. It is not the better right of the

either parent that would require adjudication while

deciding their entitlement to custody. The desire of the

child coupled with the availability of a conducive and

appropriate environment for proper upbringing together

with the ability and means of the concerned parent to

take care of the child are some of the relevant factors that

have to be taken into account by the Court while

deciding the issue of custody of a minor. What must be

emphasized is that while all other factors are undoubtedly

relevant, it is the desire, interest and welfare of the minor

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which is the crucial and ultimate consideration that must

guide the determination required to be made by the

Court.”

10. Undisputedly, the father of the minor is the natural guardian,

though custody of a minor who has not completed the age of five years shall

ordinarily be with the mother, and has the right of custody unless the Court

comes to the conclusion that the father is unfit to have the custody and that

it is not for the welfare of the minor that the father should be allowed to

exercise his right. Guardianship is in the nature of a sacred trust.

11. The courts while adjudicating the issue of custody of minor has

to ensure that the interest and welfare of the minor is of paramount

importance. While deciding the better rights of either parent would not be

of great significance. The factors to be borne in mind by the Court while

allowing custody to a parent is to see the desire of the child along with the

availability of a conducive and appropriate environment for proper

upbringing and further the ability and means of the concerned parent to take

care of the child. No doubt, all other factors cannot be said to irrelevant but

it is the desire, interest and welfare of the minor which is the crucial and

ultimate consideration that must guide the determination required to be

made by the Court.

12. In the present case, it was not disputed in the statement of

Jagdev Singh PW1 appellant and his mother Balwinder Kaur PW2 that at

the time of granting divorce, it was agreed by both the parties that they will

not file any suit/proceedings against each other nor the father-appellant shall

file any petition for the custody of the minor. In such circumstances, the

petition now filed for custody of the minor cannot be held to be bonafide

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especially when the father has not been able to demonstrate that there was

negligence on the part of the respondent-wife to maintain him and act of the

respondent-wife was not for the welfare of the child. The appellant had not

produced any evidence to show that the minor was not happy in the

company of his mother-respondent. She appeared to be in a position to look

after the minor and provide with adequate educational facilities and also to

maintain him in a proper and congenial manner. Further, the appellant had

contracted second marriage and his second wife was having a child with

her. Moreover, the interest of the minor would be better served by allowing

him to remain in the custody of the respondent. The appellant had

miserably failed to prove that welfare of the minor would be better served if

the custody is granted to him. Thus, keeping in view the facts and

circumstances of the case, it would not be in the interest of the minor to

dislodge him from his natural mother-respondent when there were no

specific reasons or evidence produced on behalf of the appellant to do so.

13. The trial Court after appreciating the oral as well as

documentary evidence had rightly concluded that it was in the interest of the

minor that he remained with his mother with the following observations:-

“17. After considering the rival submissions of learned

counsel for the parties, this Court is of the opinion that in

the petition as well as statement of PW1 Jagdev Singh

petitioner and PW2 Balwinder Kaur mother of the

petitioner admitted that at the time of getting divorce

both the parties agreed that they will not file any

suit/proceedings against each other nor petitioner will

file petition for the custody of the minor. When the

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petitioner agreed that he shall not claim the custody of

the minor then how he can file the present petition. The

perusal of statement of Jagdev Singh during divorce

proceedings Ex.D22 reveals that he has not even reserved

his visiting right to meet the minor child Armandeep

Singh. The petitioner has made statement before the

matrimonial court that the custody of the minor child

shall remain with the respondent absolutely without any

interference on his part. The matrimonial court accepted

the statements of the parties which were in the nature of

undertakings and based on those statements, passed a

decree of divorce dated 21.12.2008. In the light of these

facts, any petition filed by the petitioner for the custody

of the child seeking to appoint him as guardian of the

minor is in the breach of the undertaking given by him to

the matrimonial court. There was no justification on the

part of the petitioner to have approached the Guardian

Wards Court for the relief as aforesaid. Further the

perusal of petition under Section 13B of Hindu Marriage

Act Ex.D21 shows that in para No.3 it is averred that

after the marriage the parties to the petition lived together

and cohabited with each other at Dashmesh Colony,

Mandi Gobindgarh, Tehsil Amloh, District Fatehgarh

Sahib upto second week of August, 2007 and a son

namely Armandeep Singh was born out of the wedlock of

the parties to the petition on 3rd July, 2007 which shows

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that the petitioner and respondent started living separate

from each other after few days of birth of minor

Armandeep Singh and therefore the petitioner has no

love and affection with the minor Armandeep Singh.

The argument of learned counsel for the petitioner that

the respondent had remarried and the second husband of

the respondent is not adopting the minor son as his son.

This argument of learned counsel for the petitioner is not

tenable as the respondent has pleaded and stated that the

petitioner has remarried. The petitioner has not cross-

examined her on this point and it is settled law that when

the cross-examination is not conducted on the specific

point, then it is presumed to be admitted. Further, in the

rejoinder, the petitioner has also not denied this fact

specifically. So, the respondent has proved on record

that the petitioner has also remarried. Had the petitioner

not remarried, then the position must have been different.

Further, the fact that respondent has married a person by

itself is not a ground to take away the custody of the

child from the mother and reliance to this effect is placed

on the authority of Lekshmi Vs. Vasantha Kumari

2005 (3) Civil Court Cases 259 (Kerala). Next

argument of learned counsel for the petitioner that the

respondent is not properly maintaining the minor child

Armandeep Singh. This argument of learned counsel for

the petitioner is also not tenable as the respondent has

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placed and proved on record tuition fee receipts of

Armandeep Singh Ex.D26 to Ex.D35 which shows that at

present the minor child Armandeep Singh is studying in

Baba Nand Singh Ji Public School, Mukandpur,

Ludhiana. Further, the respondent has also examined

RW2 Tejinder Singh, RW3 Avtar Singh who have also

deposed that the respondent is property maintaining her

minor child Armandeep Singh. There is nothing on the

file that the minor child Armandeep Singh is neglected

and is not being provided love and affection by the

respondent. Until or unless, the court is satisfied with the

fact that the future or life of the minor child is at stake in

the hands of her present guardian, the custody of the

minor should not be disturbed. In view of above

discussion, this issue is decided in favour of the

respondent and against the petitioner.”

14. In view of the above and the findings recorded by the trial

court, no ground is made out for handing over the custody of the minor to

the appellant. Accordingly, finding no merit in the appeal, the same is

hereby dismissed.

(AJAY KUMAR MITTAL)
JUDGE

May 24, 2017 (HARINDER SINGH SIDHU)
gbs JUDGE

Whether Speaking/Reasoned Yes

Whether Reportable Yes
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