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Sapna Devi vs Vinod Kumar on 7 February, 2019

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

FAO No.2439 of 2018
Date of Decision: 7.2.2019

Sapna Devi …….Appellant

Versus

Vinod Kumar …..Respondent

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

Present: Mr. Parminder Singh, Advocate, for the appellant.

Mr. Saggar Aggarwal, Advocate, for the respondent.

Harnaresh Singh Gill, J.

The appellant-wife has filed the present appeal

challenging the judgment dated 27.02.2018 passed by the

learned Family Court, Karnal, vide which the petition under

Section 12 of the Guardians and Wards Act, 1890, filed by the

respondent-husband, has been allowed and custody of the

minor child of the parties aged about 7-1/2 years, given to the

respondent-husband.

It may be mentioned here that when the matter came

up for hearing before this Court on 7.5.2018, while issuing

notice of motion, the matter was referred to the Mediation and

Conciliation Centre of this Court enabling the parties to arrive at

an amicable settlement regarding the visitation rights of the

respondent during the pendency of the appeal. However, as the

mediation had failed, the matter was ordered to be listed for

arguments on 7.2.2019.

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We have heard the learned counsel for the parties

and with their able assistance gone through judgment of the

learned trial Court.

A perusal of the judgment passed by the learned trial

Court would show that while deciding the petition filed by the

respondent-husband, the overall welfare of the child, has been

deliberated upon in extenso and well taken into consideration by

the learned trial Court. The learned trial Court while examining

the comparative resources available at the ends of the parties,

has found that the appellant-wife had failed to prove that she

was working and earning and thereby capable of giving a good

life to the minor child, whereas the respondent-husband being a

driver by profession and, was found to be more suitable to raise

the child. Yet further, it was found that the maternal

grandmother of the minor, who is living with the respondent-

husband, can take care of the minor child.

The learned trial Court, has had an interaction with

the minor child and noticed that despite being 7-1/2 years old,

he was unable to recite English or Hindi alphabets or basic

counting. Still further, it has been noticed by the learned trial

Court in its order that the appellant-wife along with the minor

Dhruv and another son of the appellant-wife, namely, Dev (aged

10 years) from her first marriage with Pappi, who had died

before her marriage with the respondent-husband, is living with

her mother in a Jhuggi having only one room. Apart from that,

the appellant-wife could not produce any evidence before the

learned trial Court to show or establish that the minor is going

to any school. It was in this view of the matter the learned trial

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Court recorded, in para Nos. 27 and 28 of its judgment, as

under:-

“27. From the aforesaid, it is evident that the
respondent is not providing good education to minor
Dhruv and her older son is not going to school at all.
There is no atmosphere of studies in the one room house
of the mother of the respondent who has admitted that
each and every member of her family is illiterate. No
doubt, the petitioner is also not much educated, however,
while interacting with the parties, it became obvious that
the petitioner is alive to the value of good education and
he was pained to see that his son was not getting any.

28. In view of the aforesaid observations and the facts
and circumstances of the case, this Curt is of the
considered opinion that the welfare of minor Dhruv
demands that his custody be given to the petitioner, who
can provide better education and better life to the child.
The petitioner is, therefore, held entitled to the custody of
minor Dhruv. However, in the absence of simultaneous
association with both the parents, the child will miss
completeness of his relationship. Therefore, the
respondent is being granted visitation rights……”

Learned counsel for the petitioner has vehemently

argued that the learned trial Court has failed to take into

consideration that the minor child in his interaction with the

Court, had expressed his desire to live with his mother. He has

further argued that the appellant-mother had placed on record

the documentary evidence to prove that she is employed in a

factory and thus, she is well within her resources to raise the

minor child.

However, we do not find any merit in the arguments

raised by the learned counsel for the appellant. As stated above,

the learned trial Court has taken into consideration the overall

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welfare of the minor child, after having examined the

parallel/comparative resources at the ends of both the parties.

Besides, as is revealed from the perusal of the judgment of the

learned trial Court, the appellant-wife is having another child,

namely, Dev, aged 10 years, from her first marriage. Thus,

taking into consideration that the minor child is not going to

school and further taking into consideration that he is living

along with his mother and parental grandmother as also another

son of the appellant-wife in a Jhuggi having only one room, it

cannot be said that the order passed by the learned trial Court,

suffers from any illegality.

It has come on record that the appellant-wife is

suffering from HIV (Human Immunodeficiency Virus) positive

and on a petition filed by the respondent-husband under Section

13(1)(v) of the Hindu Marriage Act, 1955, a decree of divorce has

been granted on the said very ground.

It is not a case where the appellant-mother has not

been given any rights as regards her access to the minor child.

The learned trial Court has given visitation rights to the

appellant-mother, as detailed at page No.24, para 29 of its

judgment. A perusal thereof would show that the appellant-wife

has been given visitation rights on every second and fourth

Sunday of the month besides on the occasions of Diwali,

Dussehra and Holi festivals. She has further been given the

rights to talk to the minor on telephone for a reasonable time,

when the child so desires or when the respondent-wife calls.

Besides, the respondent-wife has also been permitted to attend

the annual/sports functions in the school of the child or any

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other function in the school, when the child performs and if she

so desires. The respondent-wife has also been given rights to

visit the child in case of any medical condition of the child

requiring hospitalization/medical procedure.

In view of the above, we find that the learned trial

Court has given a well reasoned judgment, the sole

consideration being the welfare of the child. As mentioned above,

the appellant-mother has been given the visitation rights, so as

to remain in continuous touch with the minor. The minor child

is at a growing age and with the passage of time, he would learn

to live with the pragmatic circumstances. Still further, as

deciphered from the judgment of the learned trial Court, the

appellant-wife, besides minor Dhruv, is also having another

child Dev, aged 10 years, from her first marriage. Thus, from

that point of view also, it can well be said that the respondent-

husband is a more suitable parent to provide the minor child

with a quality education, right upbringing and other necessities

of life.

Consequently, we do not find any infirmity or

illegality in the judgment of the learned trial Court, which may

warrant any interference by this Court in the present appeal.

Hence, the present appeal is dismissed.

(RAKESH KUMAR JAIN) (HARNARESH SINGH GILL)
JUDGE JUDGE

7.2.2019
ds

Whether Speaking/ Reasoned: Yes/ No
Whether Reportable: Yes/ No

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