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Judgments of Supreme Court of India and High Courts

Paramjit Kaur vs Kamaljit Singh on 5 July, 2019

FAO-9239-2018 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
FAO-9239-2018 (OM)
Date of Decision:05.07.2019
*****
Paramjit Kaur and others
. . . . . Appellants

Vs.

Kamaljit Singh

. . . . . Respondent

*****
CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN
HON’BLE MR.JUSTICE HARNARESH SINGH GILL
*****

Present: – Ms.Harvind Kaur Kalra, Advocate,
for the appellant.

Mr.Parminder Singh Kanwar, Advocate,
for the respondent.

*****

RAKESH KUMAR JAIN, J.

This appeal is directed against the order dated 28.09.2018 by

which the petition filed by the respondent for seeking necessary orders and

direction for handing over the custody of the minor son Navroop Singh Rahi,

born on 11.10.2010, to him was allowed being his real father and natural

guardian.

In brief, the marriage of appellant No.1 was solemnized with the

respondent on 30.11.2007 at Village Argowal as per Sikh Rites and customs.

They had allegedly lived at Village Muradpur Naryal, Tehsil Dasuyan,

District Hoshiarpur. They were blessed with a male child, namely, Navroop

Singh Rahi on 11.10.2010. Appellant No.1 had filed a petition under Section

13 of the Hindu Marriage Act, 1955 [for short ‘the Act’] against the

respondent bearing HMA case No.184 titled as Paramjit Kaur Vs. Kamaljit

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Singh. While the said petition was pending, appellant No.1 and the

respondent decided to dissolve their marriage by way of a mutual consent and

filed a petition bearing HMA case No.129 dated 21.5.2014 under Section 13B

of the Act titled as Paramjit Kaur and Kamaljit Singh. The joint statement of

both the parties, at the first motion stage, was recorded by the Court on

21.5.2014 itself which is already on record as Ex.R-4 and is reproduced as

under: –

“Joint statement of petitioner No.1 Pramjeet

Kaur, aged 32 years, wife of Kamaljeet Singh

D/o Devi Pal, Resident of Village Argowal,

Tehsil District Hoshiarpur AND petitioner

No.2 Kamaljeet Singh, aged 38 years, son of

Shiv Singh son of Mangal Singh, Resident of

VPO Muradpur Narial, District Hoshiarpur.

On SA

Our marriage took place on

30.11.2007 at Amrit Palace, Dasuya Road,

Argowal, District Hoshiarpur, as per Anand

Karaj ceremonies. We cohabited together as

husband and wife at VPO Muradpur Narial

until September 2012. Now we are residing

separately since from September 2012. One

issue of name of Navroop Singh Rahi was

begotten out of our wedlock on 11.10.2010 at

Charan Kanwal Hospital, Hoshiarpur. That

child at present is in care and custody of

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petitioner No.1. Due to difference of

temperaments, it is not possible for us to live

together. Lot of efforts were made through

respectables and friends for reconciliation,

but they remained futile. Gold and silver

ornaments have been returned today in open

court by both the parties to each other and no

claim regarding gold and silver ornaments

now remains. Cash amount of `1,50,000/-

has been paid today in open Court by

petitioner No.2 to petitioner No.1 in

settlement of claims qua maintenance of all

sort. Still `2,00,000/- more will be payable by

petitioner No.2 to petitioner No.1 at the time

of sufferance of final statement. The dowry

articles mentioned in list EX.C1 will be

handed over by petitioner No.2 to petitioner

No.1 through Sh. Hoshiar Singh son of Sh.

Bakshish Singh son of Sh. Gurmukh Singh,

Resident of Village Post Office Muradpur

Narial. Vehicle for carriage of these dowry

articles from house of petitioner No.2 will be

provided by petitioner No.1 at disposal of

Hoshiar Singh abovesaid between 8.00 AM to

9.00 AM of 25.5.2014 at village Muradpur

Narial. These articles of dowry mentioned in

list Ex.C1 will be loaded in that vehicle under

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supervision of Sh. Hoshiar Singh in presence

of Soma Devi, Sarpanch and Panch of nick

name of Bhutto of village Argowal, who will

be representing petitioner No.1 at the time of

that loading. Both of us will remain bound by

our joint statement recorded on 6.5.2014 in

HMA Case No.184 of 12.11.2013 titled as

Paramjit Kaur Vs. Kamaljit Singh, a petition

under Section 13 of the Hindu Marriage Act,

which is going to be withdrawn today due to

presentation of this joint petition. We seek

decree of divorce by mutual consent without

any pressure voluntarily. Decree of divorce

by mutual consent may be granted.

Sd/-

ROAC (G.K. Dhir)
District Judge, Hoshiarpur
21.5.2014

Petitioner No.1 with signature of counsel Sh.
KC Mahajan, Adv.

Petitioner No.2 with signature of counsel Shri
JS Thakur, Adv.”

On the same day, the said Court had also recorded the following

order:-

“Present: Petitioner No.1 with counsel Sh.

KC Mahajan, Adv.

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Petitioner No.2 with counsel Sh.

JS Thakur, Adv.

Petition presented today.

Entrusted to self. Be registered joint statement

of the parties recorded. Even statement of

petitioner No.1 Paramjeet Kaur regarding

receipt of the gold and silver ornaments and

cash amount of `1,50,000/- in open Court

from petitioner No.2 separately recorded.

Hoshiar Singh son of Bakshish Singh has

undertaken to load the dowry articles

mentioned in list Ex.C1 in vehicle to be

provided by petitioner No.1 between 8.00 AM

to 9.00 AM at village Muradpur Narial on

25.5.2014. These articles be got loaded in

that vehicle on 25.5.2014 in presence of Sh.

Hoshiar Singh, Smt. Soma Devi, Sarpanch

and Sh. Bhutto, Panch of Village Argowal by

petitioner No.2. After such loading, Soma

Devi and Bhutto will had over these articles

to petitioner No.1.

Now for final statement of the parties, to come

up on 22.11.2014.

Sd/-

(G.K. Dhir)
District Judge, Hoshiarpur
21.5.2014″

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Thereafter on 25.11.2014, the marriage was dissolved by way of

a decree of divorce by mutual consent and the custody of the minor was

retained by appellant No.1. After the divorce, the appellant got remarried with

one Baljinder Singh, Advocate an Income Tax Practitioner at Mohali, who

was having a son from his first marriage. The respondent filed the petition for

seeking necessary orders and direction of the Court for the custody of the

minor on the ground of being father and natural guardian and keeping in view

the welfare of the minor. He has alleged that when the decree for divorce was

passed on 25.11.2014, the minor was under 5 years of age and was to stay

with his mother and since he has crossed the age of 5 years, therefore, the

petition has been filed for seeking his custody. He has alleged that appellant

No.1 did not allow him to meet his son despite the directions of the Court.

Appellant No.1 has also allegedly abandoned her child after her remarriage as

she herself is living with her second husband at Mohali whereas the minor is

living in the village Gardhiwala. He has further alleged that earlier the minor

was studying in St. Soldier Divine Public School, Garhdiwala but now he has

been shifted to another local school. It is further a case of the respondent that

he has no intention to marry again and is only concerned about the welfare of

his minor son who has been neglected by appellant No.1. It is also his case

that he is running his own business of computer education, earning

handsomely and can give better education to the minor.

On the other hand, the case set up by appellant No.1 is that the

respondent had always maltreated her and harassed her for want of dowry as a

result thereof, she had to take the drastic step of seeking a decree of divorce

which ultimately culminated into a decree of divorce by way of mutual

consent. It is also alleged that the respondent belongs to a family of criminals

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as one of his brothers, namely, Sukhdev Singh has been convicted and the

wife of the other brother namely Sucha Singh is a mentally disturbed as she

has tried twice to commit suicide. It is further alleged that the respondent is

under the control and influence of his brothers and his parents have already

expired. He has no property in his name and does not own any computer

business. It is also alleged that the minor is doing well in life even after

shifting to the school namely, Sant Baba Harnam Singh Khalsa Model School,

Garhdiwala which is on the CBSE pattern. It is alleged that she is living at

village Garhdiwala and visit her husband as well. She has alleged that her

second husband Bhupinder Singh, Advocate, being an Income Tax

Practitioner, has sufficient income. He owns Innova car and has love and

affection with the minor.

On the pleadings of the parties, the learned Court below framed

as many as 8 issues and both the parties led their respective oral as well as

documentary evidence to prove their case. The omnibus issue is as to whether

the respondent is entitled to seek the custody of the minor son on the ground

of being father and in the name of his welfare.

In this regard, learned Court below has observed that the minor is

living with the brother of appellant No.1 Lakhbir Pal and his wife Mamta,

who have no issue. This inference has been drawn by the Court below from

the fact that at the time of meeting of the minor child with the respondent in

Gurudwara Sahib, the wife of Lakhbir Pal had accompanied the child. It is

observed by the Court that had the child been in custody of appellant No.1

then she would have accompanied the child. It is also alleged by the learned

Court below that though the minor is performing well in his new school,

namely, Sant Baba Harnam Singh Khalsa Model School, Garhdiwala but the

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very fact that he has been shifted from St. Soldier Divine Public School,

Garhdiwala shows that his welfare is not being taken into consideration as

nothing has been brought on record as to why the school has been changed. It

is also observed that the financial position of the respondent is sound because

he had paid `3,50,000/- to appellant No.1 at the time of decree of divorce,

therefore, he would be in a position to look after the welfare of the minor but

at the same time it is also observed that no evidence has been brought

available on record about his source of income. The learned Court below

ultimately came to the conclusion that the minor is not living with his mother

and therefore, it would be in his welfare and interest that his custody is handed

over to his biological father. Aggrieved against the impugned judgment and

decree, the present appeal has been filed.

Learned counsel for the appellant has also filed certain

documents with the grounds of appeal as Annexure P-2 to P-6C. Since, the

respondent was on caveat, therefore, at the outset learned counsel for the

respondent raised an objection that except for document Annexure P-1

(petition filed by the respondent before the Court below) all other

documents/annexures are not part of the record of trial Court. It was also

objected by him that no permission of the Court has been sought by filing a

specific application to bring on record these documents/annexures. In this

regard, an order was passed by this Court on 27.3.2019 that the admissibility

of document/Annexure P-2 onwards would not be considered at the time of

hearing of the appeal.

Learned counsel for the appellant has submitted that the learned

Court below has misread and misappreciated the evidence available on record

while allowing the petition filed by the respondent. It is submitted that the

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appellant No.1 had filed the petition under 13 of the Act for seeking a decree

of divorce on the ground of cruelty. At that time the custody of the minor was

with her. During the pendency of the said petition, they both decided to

dissolve their marriage by way of mutual consent and as a result thereof, a

separate petition was filed under Section 13B of the Act and at that time also

the custody of the minor was with appellant No.1. It is further submitted that

the respondent did not ask for custody of the minor at the time when the

decree under Section 13B of the Act was passed nor there is any observation

of the Court, who had passed the decree dated 25.11.2014, that the custody of

the minor is allowed to be retained by her, for the time being, till the minor

crosses the age of 5 years. It is argued that the respondent is estopped by his

own act and conduct as he did not wish to take the custody of the minor child

as he wanted to get rid of both appellant No.1 and minor, sought a decree of

divorce by way of mutual consent and has developed jealousy against

appellant No.1 after he remarriage whereas he could not get remarried after

the decree of divorce and had then decided to seek the custody of the minor to

deprive the appellant of the custody of the minor. It is further argued that the

learned Court below has failed to appreciate that after her second marriage

with Bhupinder Singh, Advocate, an Income Tax Practitioner at Mohali, she is

living also at Village Gardhiwala where his son is staying with her parents and

is being looked after by other members of the family also whereas the

respondent has not remarried again and one of his brother is a convict, though

his appeal is pending and the wife of his other brother is mentally retarded as

she has tried twice to commit suicide. It is also submitted that the respondent

does not have his parents and therefore, there is no one at his home to look

after the interest and welfare of the minor which cannot be weighed against

money alone. It is also submitted that the minor was shifted from St. Soldier

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Divine Public School, Garhdiwala to Sant Baba Harnam Singh Khalsa Model

School, Garhdiwala because the later school was nearer to the house of

appellant No.1 otherwise the Court has recorded a finding that performance of

the minor in his new school is quite well. It is further argued that the learned

Court below has also erred in drawing an inference that the minor is not being

looked after by appellant No.1 because he was taken to Gurudwara Sahib for

the purpose of meeting with the respondent by other relations of appellant

No.1. The appellant has categorically stated that she is living at Village

Gardhiwala as well as with her husband at Mohali.

On the other hand, leaned counsel for the respondent has

reiterated the case set up by him and the finding recorded in his favour by

learned Court below to contend that he, being the father of the minor, is a

natural guardian but also the welfare of the minor is with him.

We have heard both the counsel for the parties and perused the

record with their able assistance.

Insofar as the documents/Annexures P-2 to P-6/C are concerned,

these cannot be taken into consideration because appellants were required to

file an application for leading additional evidence and no such application has

been filed. However, the findings recorded by the learned Court below for

allowing the petition filed by the respondent cannot be accepted because at the

time when the petition under Section 13 of the Act was filed by appellant

No.1, the custody of the minor was with her and when subsequent petition

under Section 13B of the Act was filed, the custody of the minor was still with

the mother/appellant No.1. At no point of time, before the Court, dealing with

the divorce petition, any effort was made by the respondent for seeking the

custody of the minor. There is no observation of the Court that the custody of

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the minor is temporarily left with appellant No.1 till he attains the age of 5

years. In the absence of any such arrangement having been made, it does not

lie in the mouth of the respondent to contend that the custody of the minor

was left with appellant No.1 because the minor was less than 5 years of age

rather it has come on record that the present petition was filed by the

respondent only after the second marriage of appellant No.1 with Bhupinder

Singh, who is more economically sound than the respondent being an Income

Tax Practitioner and has accepted the minor son of appellant No.1. It is also a

fact that the respondent has remained unmarried and has lost his parents.

There is thus no one in his house except him to look after the minor. Insofar

as, his other brothers are concerned, one of his brothers is a convict and wife

of the other brother is mentally retarded and had tried twice to commit suicide.

Insofar as the upbringing of the minor in such an environment would not be in

his interest much less the welfare whereas the minor is living in the love and

care of his mother (appellant No.1) at village Garhdiwala where he is doing

well while studying in his school, namely, Sant Baba Harnam Singh Khalsa

Model School which is near to his house and is being looked after by the

parents of appellant No.1 and her family members as well. Although the

respondent has alleged that he is doing the business of computer education but

the Court has recorded a categoric finding that no evidence has been brought

on record by the respondent about his source of income nor he could tell in his

statement anything about his own computer centre etc. which he is allegedly

operating for the purpose of his livelihood. As against this, the second

husband of appellant No.1, namely, Bhupinder Singh, Advocate, an Income

Tax Practitioner at Mohali is having a car and sufficient income to look after

the needs of the minor. Nothing has been brought on record by the respondent

to show that the second husband of appellant No.1 has any grievance against

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the minor child. The learned Court below has erred in drawing the inference

that the welfare of the minor child is not with appellant No.1 only on the

ground that he was taken to Gurudwara Sahib by other relations of appellant

No.1 at the time of meeting with the respondent.

In view of the aforesaid facts and circumstances, we accept the

appeal and set aside the impugned judgment and decree of the learned Court

below. No cost.

(RAKESH KUMAR JAIN)
JUDGE

(HARNARESH SINGH GILL)
05.07.2019 JUDGE
Vivek

Whether speaking /reasoned : Yes/No
Whether Reportable : Yes/No

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