CR No.1668 of 2019 1
IN THE HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH.
114 CR No.1668 of 2019
Date of decision:12.3.2019
Dr.Rajneesh Sidhu
… Petitioner
versus
Dr.Navneet Kaur
… Respondent
CORAM: HON’BLE MR. JUSTICE AMOL RATTAN SINGH.
Present: Mr.M.S.Uppal, Advocate,
for the petitioner
Mr.Abhinav Gupta, Advocate,
for the respondent
…
AMOL RATTAN SINGH, J. (Oral)
On 11.3.2019, the following order had been passed:-
“By this petition, the petitioner challenges the order of the
learned Civil Judge (Senior Division), Mansa, dated 26.2.2019,
by which an application filed by the respondent herein, seeking
interim custody of the child of the parties, i.e. a girl less than 5
years of age, has been allowed, during the pendency of a
petition filed by the respondent under Section 6 of the Hindu
Minority and Guardianship Act, 1956, read with the Guardians
and Wards Act, 1890.
It is stated in the impugned order that evidence was still to
be led by both the parties to establish their respective assertions
qua the custody of the child, with “the emotional attachment of
the mother with the daughter definitely required to keep the
child in a good mental and spiritual health” and further, that
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there was nothing to show that the mother would act adverse to
the interest of the minor child (even though the contention of
the petitioner herein, i.e. the respondent before that Court), was
to the effect that the respondent (mother) is of uncontrollable
temper and the minor is not safe with her.
It was also contended on behalf of the petitioner herein
that he, i.e. the father, being a paediatrician who was running a
child care hospital on the ground floor, with his residence on
the second floor of the same building, and his parents being a
retired teacher and an officer from the Government, the child
can be looked after perfectly well by them.
Before this Court, learned counsel for the petitioner
submits that the respondent on the other hand is not capable of
looking after the child, she having undergone treatment for
some psychiatry problem, in support of which he draws
attention to the medical certificates annexed as Annexure P-5
(collectively) with the petition. A perusal thereof shows that the
prescriptions are dated 13.8.2015, 12.10.2015 and 16.4.2016,
with one of them shown to be dated 8th April (without the year
given).
Upon query as to the present condition of the respondent,
he submits that she was under treatment for the same problem
even in the year 2018.
When this Court was in the process of directing him to
place on record any such certificate showing that she was
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undergoing some psychiatric problem due to which she was
incapable of looking after the child, Mr.Abhinav Gupta,
Advocate, has appeared for the respondent (even before notice
of motion has been issued), and has produced in Court a
photocopy of a certificate shown to be issued by the Civil
Surgeon, Mansa, on 11.7.2018 (in Gurmukhi), stating to the
effect that the respondent, Dr.Navneet Kaur, Senior Medical
Officer (Gynae) at the Civil Hospital, Mansa, was being
awarded for the large number of deliveries conducted by her in
the month of July, 2018.
He therefore submits that obviously, if she was undergoing
any such serious psychiatric issue, she would be incapable of
even doing her job.
He also submits that as a matter of fact he has also filed a
caveat petition which has somehow not been listed).
Notice of motion.
Mr.Abhinav Gupta having already appeared accepts notice
for the respondent and seeks time to show as to how the child
would be looked after when the respondent is busy with her
duties in hospital, with her now posted at the Civil Hospital,
Rupnagar, learned counsel for the petitioner having raised an
argument that her parents also are living at Bathinda and
therefore there is no body to look after the child.
Adjourned to 12.3.2019.
To be shown in the urgent list at sr.no.101.”
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Notice having been issued in this petition yesterday, today
Mr.Gupta, learned counsel for the respondent, has filed in Court affidavits
of the respondent, i.e. the mother of the child, of her brother Navjot Singh,
of her mother Labh Kaur, as also of her father Gurnam Singh, with each
affidavit showing the executants thereof to be living in House No.2506,
BSNL Society, Sector 50, Chandigarh.
In the affidavit of the respondent, it is stated that her father and
mother have both retired from the Punjab Education Department. Her
brother is stated to be working as an Excise and Taxation Officer in the
Department of Excise, Punjab, posted at Mohali, and that she, her brother
and parents are living together in the house, the address of which is given in
the affidavit.
It has further been stated in the affidavit that she would look
after her daughter, Ekam Sidhu, with the utmost love and affection and that
when she would be on duty at the Civil Hospital, Rupnagar, her parents
would remain at home and look after the daughter.
The affidavits of the parents are essentially to the same effect,
with the affidavit of the brother, Navjot Singh, also stating in fact the same
thing.
Counter to the aforesaid affidavits, learned counsel for the
petitioner has filed in Court today an affidavit of the petitioner, stating
therein that as a matter of fact the parents of the respondents are still
residing at House No.163, Housefed Colony, Dabwali Road, Bathinda, he
having also annexed therewith a photocopy of a voters list of the said area,
showing the parents of the respondent, the respondent herself as also her
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brother, to be all listed voters therein (at sr.nos.203 to 206).
He further contends that in the caveat petition filed by the
respondent (which has somehow not been listed even today), the address of
the respondent given is House No.1006, Phase IV, Mohali, and therefore the
affidavits being filed today, showing the address of the respondent, her
brother and her parents to be of Sector 50, Chandigarh, are actually all false
statements made.
He further submits that in fact the aforesaid house at Mohali
has remained locked for the past six months, as per the petitioner.
In response thereto, learned counsel for the respondent submits
that the respondent, her brother and her parents have all taken a common
residence in Chandigarh and as such, with them now living together, there
would be no issue of the daughter being looked after while the respondent is
away to work.
Other than the above, learned counsel for the respondent refers
to Section 6 of the Hindu Minority and Guardianship Act, 1956, which
reads as follows:-
“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 who has not completed the age
of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate
unmarried girl- the mother, and after her, the5 of 8
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(c) in the case of a married girl- the husband:
Provided that no person shall be entitled to act as
the natural guardian of a minor under the provisions of
this section-
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the
world by becoming a hermit (vanaprastha) or an
ascetic (yati or sanyasi).”
Having considered the contentions raised as regards where the
respondent is residing; she as also her brother and her parents, having stated
on affidavits that their residence is at the address given in the affidavits, and
the respondent and her brother both being Government servants, I see no
reason to disbelieve the affidavits executed by them, unless at any stage it is
shown by the petitioner before the trial Court, in the pending proceedings or
even subsequently, that they are actually not residents of the said place, in
which case of course the trial Court would accordingly pass orders, with the
petitioner also at liberty to file an application bringing to the notice of this
Court, any perjury committed by the respondent, her brother and/or her
parents.
As regards the statutory provision, i.e. Section 6 of the Act of
1956, obviously clause (a) thereof stipulates that the mother of a child less
than 5 years of age would ordinarily have custody of the child.
That being so and it not having been shown to this Court that
the respondent is in any manner incapable of looking after her daughter, I
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see no reason to interfere with the interim order passed by the learned trial
Court, as has been impugned in this petition, with of course liberty to the
petitioner to bring to the notice of the trial Court any other circumstances to
show that the child is not being looked after in the custody of the mother, in
case such a situation arises.
It needs to be noticed that though learned counsel for the
petitioner yesterday had submitted that he would be bringing further
medical evidence to show that the respondent is undergoing psychiatric
treatment and therefore is incapable of looking after her daughter, no such
medical record has been produced today, and as regards the medical
prescriptions referred to yesterday, the the argument of learned counsel on
that aspect had already been ‘negated’ by this Court yesterday itself, though
it is seen that only the reasoning given by learned counsel for the
respondent has been actually incorporated in the order.
Hence, on that issue, it is found that though learned counsel for
the petitioner had produced in Court medical prescriptions dated 13.8.2015,
12.10.2015 and 16.4.2016, as also one shown to be dated 8th April (with no
year given therein), simply on the basis of those prescriptions, for any
psychiatric issue, with it not shown by learned counsel for the petitioner that
there was any serious problem with the respondent, who is, as already
noticed in yesterdays’ order, being awarded prizes for her work, it has to be
accepted by this Court that she is suffering from no serious ailment which
would disqualify her from looking after her minor daughter.
The respondent is also present in Court and nothing from her
behaviour, whatsoever, is seen by this Court to substantiate any allegation
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made on behalf of the petitioner to the effect that she is not in a fit mental
state of mind to be able to look after her daughter.
Thus, it seems very obvious, in the absence of any medical
certificate certifying to that effect, with her work in Government service
continuing as it should, that the allegation is being made only to try and
deprive her of the custody of her child.
With the aforesaid observations, this petition is dismissed.
The custody of the child would be handed over immediately by
the petitioner to the respondent before the learned trial Court within the next
week, with the trial Court directed to adjourn the matter for that purpose to a
date within one week.
Naturally, whatever has been stated herein above is only in the
context of the interim custody as has been correctly granted to the
respondent herein by the learned trial Court, with nothing stated herein
above to be taken as an opinion of this Court on the actual merits of the case
still pending before that Court, which would consequently be adjudicated
upon in the light of the evidence led on both sides.
12.3.2019 ( AMOL RATTAN SINGH )
pk JUDGE
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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