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IN THE HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH
FAO-3192-2017 (OM)
Date of Decision: 30.5.2017
Maninder Kaur and another
….Appellants.
Versus
Jagdev Singh
…Respondent.
CORAM:- HON’BLE MR. JUSTICE AJAY KUMAR MITTAL.
HON’BLE MR. JUSTICE HARINDER SINGH SIDHU.
PRESENT: Mr. Rajesh Gupta, Advocate for the appellants.
Mr. Fariad Singh Virk, Advocate for the respondent.
AJAY KUMAR MITTAL, J.
1. The appellant-wife has approached this Court by way of instant
appeal challenging the judgment dated 8.3.2017 passed by Civil Judge
(Senior Division), Ludhiana, whereby the petition under Section 25 of the
Guardian and Wards Act, 1890 (in short “the Act”) filed by the respondent-
father for the custody of his minor son, namely, Gurshant Singh, was
allowed.
2. A few facts necessary for adjudication of the instant appeal as
narrated therein may be noticed. The marriage of appellant No.1 and the
respondent was solemnized on 17.11.2007 and from the said wedlock, son
Gurshant Singh was born on 12.8.2009. However, due to temperamental
differences between the parties, the matrimonial ties between them was
dissolved by a decree of divorce dated 9.3.2011 passed by the trial Court.
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The minor being newly born infant was in the custody of appellant No.1
being dependent upon her feed. Before filing the petition for the grant of
decree of divorce by mutual consent, a compromise was effected between
the parties which was reduced into writing on 13.7.2010 and it was agreed
by the appellants that they would hand over the custody of the minor after
passing of decree of divorce to the respondent provided that till the grant of
divorce, he would live with appellant No.1. After the passing of the decree
of divorce, the appellants started dilly delaying the matter regarding the
custody of the minor. After few months, the appellants left their residential
house from the village without information and started living at undisclosed
place to deprive the respondent from the custody of the minor. Later, the
respondent came to know that appellant No.1 had left India and had gone
abroad and had also remarried there by leaving the minor child with
appellant No.2-grand father (hereinafter referred to as appellant No.2).
Appellant No.1 had neglected the minor and left his company and there was
nobody in the family of appellant No.2 to look after the minor. Appellant
No.2 is also employed in Fishery Department and he had to remain out of
house on his duty. The atmosphere in the house of the appellants was
adverse and was not conducive for the proper development and growth of
the minor who is of tender age and required constant love, care and
affection. The interest and welfare of the minor was not safe at the hands of
the appellants and was not good for mental and physical growth of the child.
The respondent was interested to keep and maintain the minor child and he
had great love, affection and attachment with him. He is employed at PTU
learning Centre, Main Market, Doraha which is near to his residence. He
can give sufficient time to the child as his working hours are also very short.
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Further, the respondent was living in a joint family consisting of his parents,
second wife and one female child. His second wife was also educated and
was employed as computer teacher in the Government School. She had
been looking after small girl child and also desired to keep the minor along
with her and was ready to provide motherly treatment to him. The interest
and welfare of the minor was safe and secure at the hands of the respondent
for his proper development and growth. Accordingly, the respondent-
husband filed a petition under Section 25 of the Act for the custody of the
minor child. The said petition was resisted by the appellants by filing a
written statement. Besides raising various preliminary objections, it was
pleaded that the respondent had admitted in a petition under Section 13B of
the 1955 Act that the minor would remain in the custody of appellant No.1
and the entire liability of the minor regarding his upbringing, education,
marriage etc. was taken by appellant No.1 and the respondent had not taken
any objection regarding the same. Appellant No.1 was turned out from her
matrimonial home when she was pregnant and she gave birth to the minor
son when she was living with her parents. The appellants shifted from
village Katani Kalan to Ludhiana for the betterment and bright future of the
minor. Further, appellant No.1 solemnized her second marriage in UK with
an intention to take the minor son abroad for his better future. Appellant
No.1 went abroad on 24.9.2011 and she also applied visa for her minor son
but the visa for the minor son was rejected and then she filed an appeal but
the appeal was also dismissed. Thereafter, she came back to India on
16.1.2012 and since then she is residing with her minor son. Appellant
No.1 is a well qualified and doing the job as a teacher in Amrit Indo
Canadian Academy Senior Secondary School and is getting handsome
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salary. The minor is also studying in the same school. The respondent had
remarried and had also one child from his second marriage. The future of
the minor was not safe in the hands of the respondent. The interest and
welfare of the minor was very much safe in the hands of the appellants. The
other averments made in the petition were denied and a prayer for dismissal
of the same was made. The respondent controverted the averments made in
the written statement by filing a rejoinder and reiterated that of the
averments made in the petition. From the pleadings of the parties, the trial
court framed the following issues:-
1. Whether the petitioner is entitled for the custody of
minor Gurshant Singh, as prayed for? OPA
2. Whether the petition is maintainable, as prayed
for? OPR
3. Whether the petitioner is estopped by his own act
and conduct from filing the present petition, as
prayed for? OPR
4. Relief.
3. In support of his case, the respondent appeared himself as PW1
and tendered various documents including his affidavit Ex.PA and also
examined his father PW2 Pritam Singh who submitted his affidavit Ex.PB.
On the other hand, appellant No.1 appeared as RW1 and tendered various
documents in her evidence including her affidavit Ex.RA. She also
examined respondent No.2 Dalbir Singh as RW2 who also tendered his
affidavit Ex.RB.
4. The trial court on appreciation of evidence led by the parties,
held that in the absence of any positive proof that the father has suffered
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from any disqualification from being the guardian and custodian of the
minor child, he alone would be the fit and proper person to have the custody
of the minor in the absence of his natural mother. Further, it was held that
the welfare of the child would be amply protected only if the child is
allowed to be in the custody of his father, at least from now. Accordingly,
the trial Court vide judgment and decree dated 8.3.2017 allowed the petition
and directed appellant No.1 to handover the custody of minor Gurshant
Singh to the respondent within a period of one month. However, visitation
rights were granted to appellant No.1 to meet the minor. Hence, the present
appeal.
5. After hearing learned counsel for the parties, we do not find
any merit in the appeal.
6. 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
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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
which is the crucial and ultimate consideration that must
guide the determination required to be made by the
Court.”
7. The father of the minor is the natural guardian 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. Further, the order of custody of minor is required to be
made by the court treating the interest and welfare of the minor to be of
paramount importance. 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 which is the crucial and ultimate
consideration that must guide the determination required to be made by the
Court.
8. In the present case, admittedly appellant No.1 and the
respondent are the natural parents of minor Gurshant Singh. They were
granted divorce by mutual consent by the trial Court vide judgment and
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decree dated 9.3.2011. In the said decree, appellant No.1 agreed to give the
custody of minor child to the respondent. The minor was residing with
appellant No.1 who had solemnized her second marriage. Even the
respondent had also solemnized his second marriage and from the said
marriage, a daughter was born who is living with the respondent.
9. A perusal of the file shows that when the child was about one
and half year old, the divorce was granted to appellant No.1 and the
respondent by mutual consent. After one month of the grant of divorce,
appellant No.1 applied for visa and after sanction of the visa, she went
abroad to resume her matrimonial life with her second husband. However,
the visa of the minor was rejected and despite that appellant No.1 went
abroad leaving the child at the mercy and custody of her parents. It seems
that the welfare of the minor was not cared by appellant No.1. The
respondent being the father of the minor was entitled to get his custody and
appellant No.1, mother of the minor went abroad to reside with her second
husband. Therefore, the care and custody of the minor would not be safe in
the hands of the maternal grandparents. Further, there was recital in the
statements of the parties that the mother shall be responsible for upbringing
of the minor in future, but after the grant of divorce, the minor would
remain in the custody of the respondent-father. Therefore, it was the duty of
appellant No.1 to handover the custody of the minor to the respondent, but
she resiled from the compromise. Even the fact of the alleged agreement to
be a fake document was not proved by appellant No.1.
10. Still further, in the compromise, Ex.P3, it was agreed that at
present son Gurshant Singh shall remain with his mother Maninder Kaur
and at time of passing a decree of divorce by the Court, Maninder Kaur
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shall be bound to give the custody of Gurshant to his father. Even in the
joint petition filed under Section 13B of the 1955 Act by appellant No.1 and
the respondent, in para 6 thereof, it was mentioned that “it has been
mutually settled that appellant No.1 will receive a sum of ` 2,00,000/- for
her claim towards past, present and future maintenance and permanent
alimony from the respondent and out of the settled amount, she had received
a sum of ` 1,00,000/- through demand draft dated 16.8.2010 and the
remaining amount of ` 1,00,000/- shall be received by her at the time of
making second statement in the said petition for passing decree of divorce
and she will be bound to give custody of minor Gurshant Singh to the
respondent at that time.” Further, reference was made by the learned counsel
for the respondent to the statement Ex.PA of the respondent wherein it was
also pleaded that as undertaken by the appellants that they would hand over
the custody of minor Gurshant Singh after passing of a decree of divorce to
the respondent provided that till the grant of divorce decree he would live
with appellant No.1.
11. The trial Court on appreciation of the evidence led by the
parties had correctly recorded that the father can desire the return of the
child to his custody, even though he left the child for a few years in charge
of his in-laws. Further, the trial Court held that the appellants had failed to
prove that the father does suffer from any circumstance depriving his
parental right. In the absence of any positive proof that the father had
suffered any disqualification from being the guardian and custodian of the
minor child, the father alone would be fit and proper person to have the
custody of the minor in preference to his natural mother. The trial court had
rightly concluded that in the given circumstances and the evidence brought
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on record, the custody of the minor child be handed to the respondent.
12. No illegality or perversity could be demonstrated in the
findings recorded by the trial Court being based on misreading or
misappreciation of evidence on record which may warrant interference by
this Court. Consequently, finding no merit in the instant appeal, the same is
hereby dismissed.
(AJAY KUMAR MITTAL)
JUDGE
May 30, 2017 (HARINDER SINGH SIDHU)
gbs JUDGE
Whether Speaking/Reasoned Yes
Whether Reportable Yes
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