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Judgments of Supreme Court of India and High Courts

Mukul Chauhan vs Neha Agarwal And Others on 27 May, 2019

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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9, Faridabad on SA.

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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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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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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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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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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