FAO No.1259 of 2020 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
FAO No.1259 of 2020
Date of Decision: 12.02.2020
Seema Kaur ….Petitioner
Versus
Jaswinder Kaur and another ….Respondents
CORAM :- HON’BLE MRS. JUSTICE DAYA CHAUDHARY
HON’BLE MRS. JUSTICE MEENAKSHI I. MEHTA
Present:- Mr. Pardeep Kumar Kapila, Advocate
for the petitioner.
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DAYA CHAUDHARY, J.
Appellant-Seema Kaur has filed the present appeal to
challenge the judgment dated 09.01.2020 passed by the Principal Judge,
Family Court, Barnala, whereby, the petition filed Jaswinder Kaur
(respondent No.1) was allowed in her favour but against the appellant and
the custody of minor children was directed to be handed over to respondent
No.1 herein before Secretary, District Legal Services Authority, Barnala
after intimating the date and time to respondent No.1 within a period of two
months.
Briefly, the facts of the case, which are relevant for the present
case, are that Jaswinder Kaur (respondent No.1) got married with one
Nimma Singh in the year 2012. However, out of said wedlock, two children
namely Mandeep Kaur and Jaspreet Singh were born and they are residing
with present appellant i.e. Seema Kaur and respondent No.2-Jailo Kaur.
Said Nimma Singh expired in an accident on 16.12.2017 and thereafter, the
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dispute arose between the parties. Respondent no.2-Jaswinder Kaur, the
mother of the children left to her parental home along with her children. The
present appellant-Seema Kaur and respondent No.2 Jailo Kaur forcibly took
away both the children. The mother of the children filed a petition under
Section 25 of the Guardians and Wards Act which was allowed. The
children were residing with present appellant and respondent No.2.
Learned counsel for the appellant submits that mother of the
children (Jaswinder Kaur) was having illicit relation with some other person
and she was responsible for the death of her husband Nimma Singh. She
herself left the matrimonial home. Learned counsel also submits that the
lower Court has not taken into consideration the relevant facts and the
circumstances of the case and a wrong finding has been recorded. The prime
consideration is the welfare of the children and respondent No.1 cannot look
after the interest of minor children. At the end, learned counsel for the
appellant submits that in case, the appeal of the appellant is dismissed then a
period of two months’ be given for handing over the custody of the children
because of their examinations. It has been undertaken to hand over the
custody immediately after the expiry of period of two months.
Admittedly, the present appellant is sister-in-law of the mother
of minor children and custody has been sought on the ground that the
mother of the children has left the matrimonial home without taking into
consideration the welfare of the children whereas the children cannot be
looked after by her as she is having illicit relation with some other person.
Nothing has been mentioned as to how the welfare of the minor children
cannot be look after by the mother. Simply by saying that the mother of the
children is having illicit relation and interest of the children cannot be
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looked after is not sufficient. Moreover, the present appellant is having her
own children and the welfare of the children is always with the mother who
is a natural guardian. The role of the mother in bringing up of the children
cannot be doubted as mother is always concerned with the welfare of the
child being the natural guardian. Simply by saying that mother cannot take
care of the children and to give custody to aunt (chachi) who is not only
having her own children but they would be deprived of love and affection of
the mother. The prime consideration is the welfare of the children so that
they may grow up in a normal balanced manner to be useful members of the
society. The presence of the mother is necessary for the development of a
child’s personality and her ability in performing duty while looking after the
children cannot be doubted.
While granting custody of the children, it is to be seen as to
whether the children would be given love and affection by the mother as the
company of the mother is the most natural thing for a child. While deciding
issue of custody of minor, the Court is to see various factors. By taking into
consideration the welfare of the child, it is to be seen as to which of the
party can look after the children in a better manner with love and affection.
It is also to be seen as to who is most likely to contribute to the well-being
of the minor and also to bring up and educate the minor in the manner as
required to develop their personality. The proper custody depends upon the
circumstances and in particular, upon the minor’s position and prospects in
life. The welfare of the child is not to be measured by money alone but there
are certain other factors which are necessary to be taken into consideration.
The prime consideration is the `welfare’ of the child and the word `welfare’
has to be taken in its widest sense. It includes physical as well as love and
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affection.
In the present case, all the factors have been taken into
consideration and a detailed speaking order has been passed. It cannot be
said in any manner that the findings recorded by the lower Court are
perverse or the stand of the appellant has not been taken into consideration.
Although, there are allegations of having illicit relation of the mother with
some other person but nothing has been brought on record to this effect.
Accordingly, by keeping in view the facts and circumstances of
the present case and on perusal of findings recorded by the lower Court, we
find no reason to interfere with the impugned judgment and the present
appeal is hereby dismissed. It is also directed to the appellant to hand over
the custody of the children to respondent No.1 on the expiry of period of
two months from today.
(DAYA CHAUDHARY)
JUDGE
(MEENAKSHI I. MEHTA)
12.02.2020 JUDGE
gurpreet
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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