121 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO-3011-2019 (OM)
Date of Decision:27.05.2019
Mukul Chauhan …Appellant
Versus
Neha Aggarwal and others …Respondents
CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN
HON’BLE MR. JUSTICE HARNARESH SINGH GILL
Present: Mr. Kanwaljit Singh, Sr. Advocate with
Mr. Akhtar Hussain, Advocate
for the appellant.
Mr. Prateek Gupta, Advocate with
Ms. Gayatri Nandwani, Advocate
for the respondents.
****
RAKESH KUMAR JAIN, J. (ORAL)
This appeal is directed against the order dated 30.04.2019
passed by the Family Court, Faridabad by which respondent No.1 has been
given the interim custody of her two minor children.
In brief, the marriage of the parties was solemnized on
07.11.2011 at Faridabad as per Hindu rites and ceremonies. They were
blessed with male twins namely, Atharv and Avyan on 25.11.2015. It is
alleged that it was a premature delivery. There was some misunderstanding
or incompatibility on the part of both the parties therefore, they decided to
part ways amicably by filing a petition under Section 13B of Hindu
Marriage Act, 1955 (for short, ‘the Act”). The said petition was filed on
28.11.2017 and was assigned the number as HMA/2247/2017. Both the
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parties recorded their statements at the first motion stage on 30.11.2017 and
the case was adjourned for recording the statements at the second motion on
30.05.2018. However, in the interregnum, they entered into a
settlement/agreement on 20.04.2018.
Respondent No.1 had also allegedly made a criminal complaint
against the appellant which is pending enquiry and also filed an application
seeking guardianship of both the minor children which was assigned the
number as GW No.27 of 2018.
While the guardianship case bearing GW No.27 of 2018 was
fixed for 20.4.2018, the parties to the lis decided to settle their dispute by
reducing a settlement into writing on the same day. They decided to live
together as husband and wife forever for the sake of their children and it
was also decided that they would withdraw the petition bearing
HMA/2247/2017 which was fixed for 30.5.2018 as it has become
infructuous and also decided that the minor children would not be made
subject matter of any kind of litigation and would continue to remain at the
present address or any other address where the 1st party (husband) would
reside till the dispute is resolved and the custody of the children is decided
by any Court of law. The said settlement was produced in the proceedings
of HMA/2247/2017 as Ex. C1 and both the husband and wife made a joint
statement on 20.4.2018 to withdraw the said petition. The joint statement
made by both the husband and wife in HMA/2247/2017 on 20.4.2018 read
as under:
“Joint Statement of Sh. Mukul Chauhan son of Sh.
Jagdeep Singh Chauhan, r/o House No.380, Sector
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And
Smt. Neha Aggarwal wife of Sh. Mukul Chauhan,
d/o Sh. Pramod Kumar Aggarwal, r/o House
No.930, Sector 9, Faridabad.
Stated that since both the parties to this
petition for the welfare of their children, and to
have happy married life have decided to stay
together with the children. We entered the
settlement in writing, which is Ex. C1 on record.
We shall be bound by the settlement. In view of the
settlement the petitioner does not want to proceed
with the petition and withdraws the same.”
On the basis of aforesaid statement, the order was passed by the
Court on 20.4.2018, which read as under;-
“File taken up on the application filed by the
parties. Sh. P.S. Tomar, Advocate appeared on
behalf of petitioner No.2 and filed power of
attorney. Taken on Record. The petitioners
appeared and made statement to withdraw the
instant petition. Thus, in view of the statement
made by the petitioners, the instant petition stands
dismissed as withdrawn. File after needful, be
consigned to records.”
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FAO-3011-2019 -4-It is also a fact that GW No.27 of 2018 filed by the appellant
was also withdrawn.
The present controversy started with the filing of the petition
under Sections 7 and Section12 of the Guardians and SectionWards Act, 1890 (for short
‘the SectionWards Act’] read with Section 6(a) of the Hindu Minority and
SectionGuardianship Act, 1956 [for short ‘the Act of 1956’] at the instance of
respondent No.1, who has alleged in her petition that after the withdrawal of
HMA/2247/2017 and GW No.27 of 2018 in view of the settlement (Exhibit
C-1), the parties started living together as husband and wife but the
appellant started misbehaving with her again and the averments in this
regard are in Para Nos. 63, 64 and 65 which are produced as under:-
On 07.01.2019, when the petitioner returned home
from work in the evening, she wasn’t permitted to
enter inside her matrimonial house. Immediately,
respondent No.2 (father-in-law) came outside and
told the petitioner that he has thrown the
petitioner out of the house. Upon enquiring the
whereabouts of her two minor children (both 3
years old), respondent No.2 told the petitioner that
she shouldn’t be concerned with the children any
more since the children shall henceforth be
staying with respondent No.2 3 (Father-in-law
Mother-in-law) at House No.380, Sector 9,
Faridabad, Haryana. The petitioner tried to enter
the premises but Respondent No.2 suddenly came
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FAO-3011-2019 -5-unto the petitioner and slapped her repeatedly,
pulled her hair and threw her away from the house
gate. Petitioner was crying profusely and begging
the respondents to take her in and let her be with
the children but respondent No.2 paid no heed.
In the midst of the incident, respondent No.1 came
out from inside the home and told the petitioner
that she can now go and stay at M-103, BPTP
Park Floor 1 Sector 77, Faridabad and handed
her the keys of the flat and further old her to go
wait for him in the flat. That all the belongings of
the petitioner are still lying in her matrimonial
house i.e. House No.380, Sector 9, Faridabad. All
her jewellery articles are lying in the almirah
owned and possessed by respondent No.2 3. It
is pertinent to mention her that even basic clothing
and other utility stuff were not provided to the
petitioner.
Little did the petitioner know that through the
respondents were making her withdraw all Police
Complaints titled Suit titled “Mrs. Raj Bala
Chauhan Anr. V. Shri Mukul Chauhan Ors.”
before the ld. Court of Senior Civil Judge, District
Courts, Faridabad, praying inter alia
to permanently injunct the petitioner as well as
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FAO-3011-2019 -6-respondent No.1 from entering the aforesaid
premises.”
It is also averred in the said petition that the parents of the
appellant-husband also filed a collusive suit titled as Mrs.Raj Bala Chauhan
and others vs. Mrs.Mukul Chauhan and another before the Civil Court at
Faridabad for seeking a decree of permanent injunction against respondent
No.1 as well for restraining her to enter her matrimonial home. Faced with
all those acts of alleged cruelty, respondent No.1 had also filed a petition
under Section 12 of the Protection of Women from SectionDomestic Violence Act,
2005 [for short ‘the SectionDV Act’] before the Court at Delhi and filed this petition
bearing GW/9/2019 on 21.01.2019 for being appointed as a guardian of her
minor twins and also to seek their custody in the meantime. At the initial
stage, the Family Court, on the petition filed by respondent No. 1 to which
GW No.9 of 2018 is assigned, had passed the interim order on 7.2.2019,
which read as under:-
“The respondents have appeared through counsels
and have filed their power of attorneys. They
moved applications under Section 13 of the Family
Courts Act, 1984 for granting permission to
engage Advocates on the ground that they have no
knowledge of technicalities of law. In view of the
contents of their applications, submission made in
this regard and in the larger interest of justice
they are allowed to be represented by legal
practitioner in this case.
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FAO-3011-2019 -7-Any application on behalf of respondent No.1 for
supply of documents annexed with the petition also
filed. In view of the averments made in the
application same is allowed and requisite
documents have been supplied.
It was prayed by the learned counsel for petitioner
that till adjourned date some interim relief
regarding custody/visitation of the children be
given to the petitioner.
Keeping in view that the children are minor
children, till the adjourned date the petitioner is
granted visitation rights of the children in the
Chunmum Mall in Haldiram Outlet from 3.00 to
4.00 p.m. on the coming Saturdays and Sundays,
which fall before 26.02.2019. Reply to the
application for interim custody of the children be
also filed on the same day, while written statement
be filed on 10.4.2019.”
According to the aforesaid order, respondent No.1 was given
the visitation rights to meet both the children in the Chunmun Mall in
Haldiram outlet at Faridabad from 3:00 p.m to 4:00 p.m on the Saturday and
Sunday. However, the application for seeking interim custody was
ultimately decided by the learned Court below vide its order dated
30.4.2019 and keeping in view the age of the twins and the fact that the
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mother is the natural guardian in terms of Section 6 (a) of the Act of 1956,
the custody was ordered to be given to respondent No.1 and the visitation
rights have been given to the appellant in the same manner in which it was
earlier given to respondent No.1.
Aggrieved against the said order, the present appeal has been
filed.
Learned Senior counsel appearing on behalf of the appellant
has submitted that Section 6 (a) of the Act of 1956 uses the expression
“shall ordinarily”. It does not mean that it is mandatory for the Court to
hand over the custody of the child, who is below the age of 5 years to the
mother in view of the provisions of Section 13 of the Act of 1956 in which
it is provided that the welfare of the minor would be the paramount
consideration for the purpose of appointment of the guardian. It is further
submitted that the past behavior of respondent No.1 does not entitle her to
get the custody of the minor children because allegation against her is that
she had gone to Goa from 27.07.2017 to 29.07.2017 while she was working
with M/s Ernst and Young company and stayed in a hotel with some persons
and also the allegation is that she had been going to Bhuwaneshwar and
staying with her colleague in the hotel. It is also submitted that at the time
she had left for Goa both the minor children were suffering from fever but
she, instead of looking after the health of minor children, preferred to go to
Goa.
On the contrary, counsel for respondent No.1 has denied all the
allegations made by the appellant that she had not been a caring mother for
both the minor children. It is also submitted that the allegations had no
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substance until and unless they are proved in the Court of law by leading
cogent evidence. It is rather submitted by respondent No.1 that there was an
act of assault on her by the appellant on 05.11.2018 for which she had to
register a complaint in police and has referred to a medico legal report in
which the injuries suffered by her is specifically mentioned. She has also
made various complaints to the police from 16.1.2019 after the suit for
injunction was filed by the parents of the appellant. It is further submitted
that respondent No.1 is not working with M/s Ernst and Young Company as
she has recently joined Deloitte and has produced before us her appointment
letter as a Manager in the consulting function of Deloitte Touche Tohmatsu
India LLP (Organisation) based in Delhi. Respondent No.1, who is present
in the Court, has also stated before us that she would be working from home
and shall be available to look after both the children through out the day
besides her parents are also available. The counsel for respondent No.1 has
then referred to a certificate issued by Little Columbus Nursery School,
Faridabad bearing reference No. LCNC/OP dated 08.04.2019 as per which
the attending teachers of both children namely, Sheebu Madam of Atharv
Chauhan and Shweta madam of Avyan Chauhan have reported to the
Principal that both the children are not attending the school from
16.01.2019 till the end of the session.
We have heard learned counsel for the parties and perused the
record with their able assistance.
The facts are not much in dispute in regard to the marriage of
the parties and the birth of the children. The dispute is in regard to the
allegations made against the character of r espondent No.1 by the appellant
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which is yet not been established in the Court of law. It is also pertinent to
mention that the parties still have the status of husband and wife as no
petition under Section 13 of Act has been filed by either of them. The issue
before us is as to whether the order passed by the learned trial Court dated
30.04.2018 is in accordance with law?
For the purpose of custody, the legislature has provided Section
6(a) in the Act of 1956 which is reproduced as under for ready reference:-
“6(a) in the case of a boy or an unmarried girl –
the father and after him, the mother: provided that
the custody of a minor who has not completed the
age of five years shall ordinarily be with the
mother.”
According to the aforesaid provision, the natural guardian of a
Hindu minor in case of a boy or an unmarried girl would be the father and
after him the mother but for the purpose of custody of a minor who has not
completed the age of 5 years shall ordinarily be with the mother.
Insofar as Section 13 of the Act of 1956 is concerned, it also
talks of the appointment of a guardian by taking into consideration the
welfare of the minor.
In the present case, we are dealing with the interim custody not
of the appointment of the guardian. The Court has awarded the interim
custody to respondent No.1 keeping in view the fact that the children are too
young i.e. 3 ½ years as of now and are twins. The earlier litigation which
was initiated by both of them by filing a petition under Section 13B of the
Act came to an end when the settlement was arrived at between the parties
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and they were abiding by the settlement till the dispute again triggered off
with the alleged misbehaviour of the appellant from the month of January,
2019. Thus, keeping in view the aforesaid facts and circumstances we are of
the considered opinion that there is no error in the order passed the Court
below which requires interference of this Court. The present appeal is thus
hereby dismissed though without any order as to cost.
(RAKESH KUMAR JAIN)
JUDGE
(HARNARESH SINGH GILL)
May 27, 2019 JUDGE
Jyoti-IV
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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