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Jitendra Sighani vs Harneek on 30 August, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 2825/2018

Jitendra Sighani S/o Shri Ramesh Gagansingh, Aged About 39
Years, R/o 14, Vinayak Nagar, Sector Number – 12, Hiranmagari,
Ward No. 20, Udaipur, Rajasthan
—-Appellant
Versus
Smt. Harneek W/o Shri Jitendra, D/o Shri Surendra Kalra, Aged
About 36 Years, R/o 743-H, Sector Number – 11, Hiran Magari,
Sikkha Colony, Opposite Adinath School, Udaipur, Rajasthan.
—-Respondent

For Appellant(s) : Mr. Kuldeep Mathur with Mr.Vinod
Choudhary
For Respondent(s) : Mr.Deepak Menaria

HON’BLE MR. JUSTICE SANGEET LODHA
HON’BLE MR. JUSTICE P.K. LOHRA

Judgment

Per Hon’ble Mr. Sangeet Lodha, J.

30th August, 2019

1. This appeal is directed against order dated 17.9.18 passed

by the Family Court, Udaipur, in Case No.492/17, whereby an

application preferred by the appellant under Section 12 of

Guardians and SectionWards Act, 1890 (for short “the Act”), seeking

interim custody of the female child or visitation rights as non

custodial parent, has been dismissed.

2. The facts relevant are that the appellant and the respondent

entered into wedlock on 26.5.02. After marriage, they lived

together at Udaipur and were blessed with a baby girl on 22.9.12.

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On account of disputes and differences being developed, they

started living separately w.e.f. 11.11.15.

3. The respondent-wife lodged one after another three FIRs

against the appellant; FIR No.101/16 for offences under Sections

498A, Section406 IPC at Mahila Police Station Udaipur, FIR No.354/16 for

offences under Sections 420, Section406, Section467, Section468 Section120B IPC at Police

Station Sukher, Udaipur and FIR No.255/16 for offences under

Sections 420, Section406, Section467, Section468, Section120B IPC at Police Station,

Govardhan Vilas, Udaipur. The respondent-wife also filed an

application under Section 125 Cr.P.C. seeking maintenance for

herself and daughter Pearl a sum of Rs.70,000/- and Rs.30,000/-

respectively, which is being contested by the appellant by filing a

reply thereto.

4. According to the appellant, the respondent left the

matrimonial home on 11.11.15 and also forcibly took away the

baby girl Pearl with her. The appellant filed an application under

Sections 7 Section25 of the Act on 22.11.17 before the Family Court,

Udaipur accompanied by an application under Section 12 of the

Act, claiming either interim custody or visitation rights to the

child.

5. The application has been rejected by the Family Court by the

order impugned observing that as laid down by the Supreme

Court, the interest and welfare of the child is of paramount

consideration in the matter of grant of custody and since there are

allegations of appellant’s being involved in commission of the

offences and he is alleged to have treated the respondent-wife

with cruelty, taking into consideration the overall interest of the

child who is studying in Class III and being brought up by her

mother, he is not entitled for interim custody as prayed for. The

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prayer of the appellant for visitation rights has not been

considered by the Family Court while passing the order impugned.

Hence, this appeal.

6. During the pendency of the appeal, a Bench of this Court of

which one of us was member, conferred with the appellant,

respondent and the child Miss Pearl in Chamber, however, the

efforts made for amicable settlement between the parties failed

and therefore, the matter is taken up for consideration on merits.

7. Learned counsel appearing for the appellant submitted that

by way of an application under Section 12 of the Act, the appellant

had prayed for only visitation rights, however, the Family Court

has dealt with the application filed as an application seeking

interim custody and the prayer of the appellant claiming visitation

rights has not even been considered. Learned counsel submitted

that every child has fundamental right to get love and affection

from both parents and thus, the respondent cannot deny the

appellant visitation rights to the child altogether. Drawing the

attention of this Court to the order impugned passed by the Family

Court, learned counsel submitted that while deciding the

application preferred by the appellant, the Family Court has not

assigned any reason as to why the appellant does not deserve to

be extended limited visitation rights to his own daughter, who is

living with the mother on account of differences having been

developed between the parties. Learned counsel submitted that

both mother and father have equal rights over the child and

equally responsible and concern with the welfare of the child. It is

submitted that for healthy emotional development of the child

Pearl, it is essential that she gets care, love and affection from

both the parents and thus, the rejection of the application of the

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appellant seeking visitation rights by the Family Court in cursory

manner, without even considering the submission of the appellant

in this regard is absolutely unjustified. Learned counsel submitted

that presumption in favour of maternal custody as sound child

welfare policy is rebuttable and in given case the father is better

suited to have custody of the child. It is submitted that such

assessment can only be made after level playing field is granted to

both parents and thus, without the appellant being extended

visitation rights and given a chance to live with the child, the

conclusion drawn by the Family Court that for the welfare of the

child, she deserves to be kept in the custody of the mother is ex

facie perverse. In support of the contentions, learned counsel has

relied upon a decision of the Delhi High Court in Vikas Agarwal Vs.

Geeti Mathur (Mat.App. (F.C.) 171/2016) dated 14.2.17.

8. On the other hand, counsel appearing for the respondent

submitted that the respondent as also the child Pearl, who is only

6 years of age, were treated by the appellant with cruelty. Learned

counsel submitted that after birth the child continues to be in

custody of the mother and the appellant has never cared to look

after the child in any manner whatsoever. It is submitted that the

respondent in the first instance got admitted the child in Play

School- Tree House and thereafter, she is admitted to Riyan

International School for her education. It is submitted that entire

responsibility of maintenance and upbringing of the child is

throughout being discharged by the respondent alone. It is

submitted that the appellant who was always indulged in torturing

the respondent and the child Pearl physically and mentally, does

not deserve to be extended even visitation rights and thus, the

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interim order passed by the Family Court does not warrant any

interference by this Court in exercise of its appellate jurisdiction.

9. We have considered the rival submissions and perused the

material on record.

10. Indisputably, the appellant being father of the child is equally

entitled to spend time with his minor daughter and to bestow his

love and affection on her. But then, the matter with regard to the

custody of the minor child is a sensitive issue for both the parents,

which needs to be resolved with human angle taking into

consideration welfare and best interest of the child. Obviously, the

differences, discord and bitterness in relationship between the

parents in no manner should adversely affect healthy growth of

the child.

11. In Gaurav Nagpal Vs. Sumedha Nagpal: 2009 (1) SCC 42,

the Supreme Court while considering the provisions of the Act and

referring to the principles of English and American Law governing

the custody of minors as also the decisions of Bombay High Court

and Supreme Court in this regard, held:

“42. When the court is confronted with conflicting
demands made by the parents, each time it has to justify
the demands. The Court has not only to look at the issue
on legalistic basis, in such matters human angles are
relevant for deciding those issues. The Court then does
not give emphasis on what the parties say, it has to
exercise a jurisdiction which is aimed at the welfare of
the minor. As observed recently in Mousmi Moitra
Ganguli’s case the court has to give due weightage to the
child’s ordinary contentment, health, education,
intellectual development and favourable surroundings but
over and above physical comforts, the moral and ethical
values have also to be noted. They are equal if not more
important than the others.

43. The word “welfare” used in Section 13 of the Act
has to be construed literally and must be taken in its
widest sense. The moral and ethical welfare of the child
must also weigh with the Court as well as its physical well
being. Though the provisions of the special statutes which

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governs the rights of the parents and guardians may be
taken into consideration, there is nothing which can stand
in the way of the Court exercising its parens patriae
jurisdiction arising in such cases.”

12. In the backdrop of the position of law settled as aforesaid,

adverting to the facts of the present case, it is noticed that the

appellant and the respondent separated on 11.11.15 when the

child Pearl was 3 years of age and thereafter, the respondent

alone is involved in taking care and upbringing the child as

responsible parent. There is nothing on record suggesting that any

active attempt was made by the appellant to seek even temporary

custody of the child and thus, as a matter of fact, the appellant

has acquiesced with the existing arrangements of the custody of

the child with the mother, the respondent herein.

13. As noticed above, a Bench of this Court of which one of us

was a member, had conferred with the appellant, respondent and

child Pearl in Chamber. However, it was observed that looking at

the differences, discord and bitterness in the relationship between

the appellant and respondent, no amicable settlement was

possible. It is pertinent to note that the minor child Pearl is living

with her mother at her maternal home for last 3 years, in stable

and congenial atmosphere and therefore, at this stage, there is

absolutely no reason as to why the custody of the child with the

current custodial parent should be interfered with by giving

interim custody to the non-custodial parent, the appellant herein.

14. In view of the discussion above, in the considered opinion of

this Court, the order impugned passed by the Family Court

declining the prayer for interim custody of the child to the

appellant herein, does not warrant any interference by us in

exercise of appellate jurisdiction.

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15. But, as noticed above, essentially the application preferred

by the appellant was for visitation rights to the child. However,

while passing the order impugned, the prayer of the appellant for

visitation rights has not been considered by the Family Court. It

needs to be emphasized that a parent who is not granted interim

custody is entitled to consideration of his prayer for visitation

rights, which is generally granted unless there exists extenuating

circumstances justifying denial of such prayer. In this view of the

matter, this Court is of the considered opinion that the prayer of

the appellant with regard to visitation rights to the child Pearl

needs to be considered by the Family Court appropriately.

16. Accordingly, the order impugned passed by the Family Court

denying interim custody of the child Pearl to the appellant is

upheld. However, the matter is remanded to the Family Court for

consideration of the prayer of the appellant for visitation rights to

the child during the pendency of the petition appropriately. The

Family Court shall pass appropriate orders in this regard after

giving an opportunity of hearing to both the parties within a period

of one month from the date of this order. The Family Court is also

directed to decide the main petition as well expeditiously.

17. The appeal stands disposed of accordingly. No order as to

costs.

(P.K. LOHRA),J (SANGEET LODHA),J

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