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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR No.171 of 2017
Date of Decision : 13.08.2018
Pallavi
…Petitioner
versus
Nand Kishor alias Naveen
…Respondent
CORAM : HON’BLE MR. JUSTICE B.S.WALIA
Present: Mr. Mukesh Rao, Advocate for the petitioner.
Mr. Rajiv Sharma, Advocate for the respondent.
***
B.S.WALIA, J. (Oral)
1. Challenge is to order dated 05.12.2016 (Annexure P-4) passed
by the learned District Judge, Family Court-I, Faridabad, dismissing the
petitioner mother’s prayer for interim custody of minor child Rudransh
during the pendency of application under Section 25 of the Guardians and
Wards Act, 1890 (hereinafter referred to as ‘the 1890 Act).
2. Brief facts of the case leading to the filing of the instant petition are
that an application was moved by the petitioner before the learned District
Judge, Family Court-I, Faridabad, with the averments that she was married
to the respondent on 25.02.2012, that male twins, Ranvijay and Rudransh
were born out of the wedlock on 27.12.2013, but that she and her son
Ranvijay who was not keeping well were turned out from the matrimonial
home by the respondent and his parents on 07.03.2015 though Rudransh
was kept by the respondent and his parents, that she had got Ranvijay
treated from Escorts Hospital as well as Sir Gangaram Hospital by
spending a huge amount and during said period, neither the respondent nor
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his parents supported her or Ranvijay, emotionally or financially, that the
respondent is not in a position to take care of minor Rudransh due to his
tender age as also on account of his remaining outside home in connection
with the running of Marriage Palace, that the welfare of a child of tender
age required the child to be neither separated from the mother nor his
sibling twin since the same would impact the child emotionally besides
affect his development and growth. Prayer was for handing over the interim
custody of Rudransh to the petitioner. It needs noticing here that the
petitioner who is a B.D.S., was earlier working in the Sagar Dental
Hospital, Ballabgarh but now she is working in a private clinic at
Faridabad.
3. Stand on behalf of the respondent was that while doing internship in
the B.D. S. the petitioner stayed in a hostel for one year and during said
period she left Ranvijay with her parents and now, since she is working, it
would not be possible for her to take care of both the children. Leaned
counsel contended that ever since the petitioner had left the matrimonial
home, Rudransh was living under the care and custody of the respondent
father while studying in a reputed school at Faridabad, besides he was
under the care and custody of his grandparents as and when the respondent
had to go out in connection with work at the Marriage Palace being run by
him. Learned counsel contended that in the circumstances, the order passed
by the learned District Judge, Family Court-I, Faridabad, was valid and did
not warrant any interference by this Court.
4. The learned District Judge, Family Court-I, Faridabad
dismissed the application on the ground that minor child Rudransh was in
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the custody of the respondent since 07.03.2015 and there was nothing on
the record to show that the respondent was not able to look after the minor
child Rudransh, besides the petitioner had failed to convince the Court that
the respondent was not taking proper care of minor child Rudransh.
5. Learned counsel for the petitioner contended that as per
Section 6 of the Hindu Minority and Guardianship Act, 1956 (hereinafter
referred to as ‘the 1956 Act) no doubt natural guardian of a minor child is
the father, but in the case of minor who has not completed the age of five
years, custody of the minor is ordinarily to be with the mother. Learned
counsel further contends that the 1956 Act was in addition to the 1890 Act,
besides Section 5 of the 1956 Act provided for overriding effect of the Act
with regard to any other law in force in so far as it is inconsistent with any
of the provisions contained in the 1956 Act, that, even if the application
was filed under the 1890 Act, it was the provisions of Section 6 of the 1956
Act, which were relevant for determining as to which of the parents is
entitled to the custody of a child below the age of five years. Relevant
extract of Section 6 of the 1956 Act are reproduced as under :
Section 6-The Hindu Minority and Guardianship Act, 1956
6. Natural guardians of a Hindu minor.–The natural guardian
of a Hindu minor, in respect of the minor’s person as well as
in respect of the minor’s property (excluding his or her
undivided interest in joint family property), are–
(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
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who has not completed the age of five years shall ordinarily be
with the mother ;
xxx”
7. Learned counsel contends that the impugned order is
unsustainable having been passed in derogation of the provisions of
Section 6 of the 1956 Act as also the decision of Hon’ble the Supreme
Court in case titled as Roxann Sharma vs. Arun Sharma, 2015 (2) RCR
(Civil), 93, therefore liable to be set aside and the prayer for interim
custody granted. Relevant extract of the decision in Roxann Sharma’s case
(supra) is reproduced as under :-
“13. We must not lose sight of the fact that our reflections
must be restricted to aspects that are relevant for the granting
of interim custody of an infant. The Trial is still pending. The
learned Single Judge in the Impugned Order has rightly taken
note of the fact that the Mother was holding a Tenured College
Professorship, was a post-graduate from the renowned Haward
University, receiving a regular salary. Whether she had a Bi-
polar personality which made her unsuitable for interim
custody of her infant son Thalbir had not been sufficiently
proved. In the course of present proceedings it has been
disclosed that the Father has only passed High School and is
not even a graduate. It has also not been denied or disputed
before us that he had undergone drug rehabilitation and that he
was the member of Narcotics Anonymous. This is
compounded by the fact that he is not in regular employment
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or has independent income. As on date he is not an Income tax
assessee although he has claimed to have earned Rupees
40,000 to 50,000 per month in the past three years. We must
again clarify that the father’s suitability to custody is not
relevant where the child whose custody is in dispute is below
five years since the mother is per se best suited to care for the
infant during his tender age. It is for the Father to plead and
prove the Mother’s unsuitability since Thalbir is below five
years of age. In these considerations the father’s character and
background will also become relevant but only once the Court
strongly and firmly doubts the mother’s suitability; only then
and even then would the comparative characteristic of the
parents come into play. This approach has not been adopted by
the learned Single Judge, whereas it has been properly pursued
by the learned Civil Judge.”
8. During the course of hearing, the respondent who is present in
person has stated that besides him and his son Rudransh, his father and
mother are also residing in the same house and they look after the minor
child Rudransh during his absence when he has to go for work at the
marriage palace. On query, the respondent disclosed that his father is a
heart patient while his mother is suffering from high blood pressure,
depression and diabetes.
9. I have considered the submissions of learned counsel. Admittedly,
the mother of the children is a B.D.S. and is working in a private clinic at
Faridabad while staying with her parents. Although learned counsel for the
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respondent has emphasized that the respondent being the father is entitled
to the custody and is in a position to take care of the child, the fact remains
that in view of Section 6 of the 1956 Act as also the decision in Roxann
Sharma’s case (supra), custody of minor below 5 years of age is ordinarily
to be with the mother. The father’s suitability to custody is not relevant
where the child whose custody is in dispute is below five years as the
mother per se is best suited to care for the infant during his tender age. In
the circumstances, it is for the respondent father to plead and prove the
petitioner mother’s unsuitability since the child is below five years of age.
No such unsuitability has been pointed out except that she is working as a
B.D.S. The same as such does not constitute a unsuitability unless it can be
shown that the children would be neglected by the petitioner. Both the
parents are working. Thus the children are being taken care of by the
grandparents only. Admittedly the respondent’s parents are not keeping
good health. No such disability has been pointed out qua the parents of the
petitioner. Moreover, Section 6 of the 1956 Act mandates custody of a
child below the age of 5 years to ordinarily be with the mother. Besides, if
custody of Rudransh is also with the petitioner he would have the added
advantage of being in the company of his sibling Ranvijay. It would not be
in the welfare of Rudransh to remain separated from and be deprived of the
love and affection of the petitioner mother as also his sibling in view of
tender age of less than five years. Thus the rejection of the application by
the learned District Judge, Family Court-I, Faridabad on the ground that
there was nothing on record to show that the respondent is not able to take
care of the minor child is not relevant in view of the minor Rudransh being
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below five years of age. Accordingly, in the light of Section 6 of the 1956
Act, as well as decision of Hon’ble the Supreme Court in Roxann Sharma’s
case (supra) as also in view of the mother/petitioner, a B.D.S. working in a
private clinic at Faridabad against salary, besides the father of the children
i.e. respondent running a marriage palace in which obviously he remains
busy for most of the day and night arranging marriage functions, leaving
Rudransh dependent upon his grandparents who as per his own admissions
are ill and suffering from a host of ailments, the interim custody of
Rudransh, a child below 5 years of age ordinarily ought to be with the
petitioner mother in the interest of welfare of the minor. Aforementioned
aspects of the matter have not been taken into account by the learned
District Judge, Family Court-I, Faridabad. Moreover, although the
petitioner’s application for grant of interim custody of Rudransh was
dismissed, the learned District Judge did not order visitation rights in
favour of the petitioner nor made any provision for ensuring that minor
Rudransh gets opportunity to interact and grow up with his twin i.e.
Ranvijay. It was only vide order dated 17.05.2017, passed by this Court
that the parties along with their children were directed to meet at
Haldiram’s Sector, 12, Faridabad on the first and third Sunday of each
month between 05:30 pm to 07:00 pm with no other person to be present at
the time of meeting.
10. Another aspect which needs noticing is that attempts were made for
reconciliation between the parties. The petitioner is willing to stay with the
respondent, but states that she is unable to do so on account of an
impossible condition having been imposed by the respondent and his
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parents that the petitioner’s parents would not be allowed to meet the
petitioner nor will the petitioner meet her parents. The respondent denies
having imposed the condition. However, the fact remains that in the
circumstances, amicable settlement is not possible as at present.
11. In the circumstances, in the light of the position as noted above, the
impugned order is set aside. Custody of minor child Rudransh is ordered to
be handed over by the respondent to the petitioner on or before 20.08.2018
before the Court of the learned District Judge, Family Court-I, Faridabad.
The learned District Judge, Family Court-I, Faridabad is requested to
dispose of the application for custody as expeditiously as possible.
Needless to mention that nothing stated in this order would be taken as an
expression on merits of the case. It is further ordered that during the interim
custody of the child Rudransh with the petitioner, the respondent would be
at liberty to meet the children in the presence of the petitioner after school
hours in the evening between 5:00 p.m. to 7:00 p.m. every day at
Haldiram’s Sector-12, Faridabad.
12. Petition stands allowed in above terms.
(B.S.WALIA)
JUDGE
13.08.2018
rajesh.k.khurana
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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