SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Pallavi vs Nand Kishor @ Naveen on 13 August, 2018

1

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

1 of 8
19-08-2018 01:33:57 :::
2
CR No.171 of 2017

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

2 of 8
19-08-2018 01:33:57 :::
3
CR No.171 of 2017

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

3 of 8
19-08-2018 01:33:57 :::
4
CR No.171 of 2017

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

4 of 8
19-08-2018 01:33:57 :::
5
CR No.171 of 2017

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

5 of 8
19-08-2018 01:33:57 :::
6
CR No.171 of 2017

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

6 of 8
19-08-2018 01:33:57 :::
7
CR No.171 of 2017

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

7 of 8
19-08-2018 01:33:57 :::
8
CR No.171 of 2017

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

8 of 8
19-08-2018 01:33:57 :::

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2018 SC and HC Judgments Online at MyNation
×

Free Legal Help just WhatsApp Away

MyNation HELP line

We are Not Lawyers but No Lawyer will give you Advice like We do

Please to read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registrationJOIN WELCOME GROUP HERE

We handle Women centric biased laws like False 498A, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307,312, 313,323 376, 377, 406, 420, 506, 509; and also TEP, RTI etc

Web Design BangladeshWeb Design BangladeshMymensingh