FAO-9239-2018 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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FAO-9239-2018 (OM)
Date of Decision:05.07.2019
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Paramjit Kaur and others
. . . . . Appellants
Vs.
Kamaljit Singh
. . . . . Respondent
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CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN
HON’BLE MR.JUSTICE HARNARESH SINGH GILL
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Present: – Ms.Harvind Kaur Kalra, Advocate,
for the appellant.
Mr.Parminder Singh Kanwar, Advocate,
for the respondent.
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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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FAO-9239-2018 -3-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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FAO-9239-2018 -4-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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