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Sheetu Kaul vs Major Anirudh Singh on 17 July, 2018

HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU

MA No. 90/2018,
MP No.01/2018
Date of order:17. 07.2018
Sheetu Kaul
v.
Major Anirudh Singh
Coram:
Hon’ble Mr Justice Tashi Rabstan, Judge

Appearance:
For petitioner(s): Mr Abhinav Sharma, Advocate and Mr Karan Sharma, Advocate
For respondent(s): Mr Vikram Sharma, Advocate and Mr Manjit Singh Sarkaria,

Advocate.

i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?

1. Appellant through the medium of instant appeal is seeking quashment of
order dated 24.04.2018 passed by the learned Additional District Judge
(Matrimonial Cases), Jammu in case titled Sheetu Kaul v. Anirudh Singh
(hereinafter for short as “impugned order”) by virtue of which, prayer of
the appellant for interim relief has been declined, and allowing the
appellant to continue with the custody of the minor daughter till final
decision of the case before the trial Court.

2. From the appeal, it emerges that appellant and respondent married on
31.10.2009 as per Hindu Rites and Rituals at Kota, Rajasthan, Out of the
wedlock, a female child, namely, Kanishka Sisodia alias Kiwi was born
on 07.07.2013, who is, as on today, less than 5 years of age. Respondent

MA No.90/2018 Page 1 of 8
herein filed petition under Section 13 of the Hindu Marriage Act before
the court of learned District Judge, Family Court, Hisar. In addition, he
has also filed complaint under
Section 497 of IPC alleging adulterous
relation of the appellant with one Nikhil. Ultimately, when he did not
produce any evidence before the said Court, the same stands closed. It is
contended that respondent by playing fraud, pressure and undue influence
at Hisar over the appellant got her agreed to sign the joint petition under
Section 13B of the Hindu Marriage Act before the District Judge, Family
Court, Hisar. It is contended that as soon as she came out of the undue
pressure and influence realized that fraud is being played with her by the
respondent, she withdrew the consent for mutual divorce/joint petition.
Thereafter, appellant filed petition under
Section 12 of the Jammu and
Kashmir Protection of Women from
Domestic Violence Act, 2010 and
learned City Judge, Jammu vide order dated 01.06.2017 directed
respondent to handover the custody of the minor daughter to the mother-
appellant herein. Respondent filed objections but did not produce the
minor daughter. Feeling aggrieved of order dated 01.06.2017, respondent
filed Revision Petition before the Principal District Judge, Jammu.
Appellant appeared before the learned Distt. Judge , Jammu and apprised
about the legal and factual position and ultimately a compromise was
reduced into writing by the parties in which custody of the minor
daughter was mutually settled on rotational basis and pursuant to said
compromise minor daughter was handed over to the appellant mother on
03.10.2017. It is contended that since 03.10.2017, minor is living with
mother-appellant. It is also contended that as per the compromise deed
entered between the parties, the respondent herein had to take her back on
03.01.2018 but he did not come forward because of job in the army and
during her stay with the minor, the minor made number of such revelation
that the appellant or for that any mother would have not returned the

MA No.90/2018 Page 2 of 8
minor girl back to respondent/father of the minor keeping in view the
welfare of the minor child and in the meanwhile, respondent filed petition
under
Section 13 of the Hindu Marriage Act before the Family Court at
Hisar. Due to number of revelation made by the minor, appellant was
compelled to file petition under
Section 25 read with Section 7 and 10 of
the JK Guardian and
Wards Act in the Court of Learned Additional
District Judge, Matrimonial Cases, Jammu for permanently appointing
her as the Guardian of the minor daughter.

3. Vide order dated 25.01.2018, learned Additional District Judge
(Matrimonial Cases), Jammu restrained respondent from taking the
custody of the minor forcibly. However, learned Matrimonial Court after
hearing both the sides vide order dated 24.04.2018 has vacated the ad-
interim injunction and dismissed the application of the appellant for grant
of interim relief. Hence, this appeal on the ground that the welfare of the
child is of paramount consideration which is now settled law, yet the trial
Court has failed to appreciate the said settled law and even the choice of
the minor is important if she is capable of making choice which the trial
Court has not looked into and the revelation which she disclosed to her
mother have not looked into by the trial Court and has simply rejected the
application that in the compromise deed the parties have settled all the
conditions of the welfare of the child so there appears nothing to give
fresh look to the contentions and apprehensions of the petitioner which is
not legally sustainable under law. More so, the trial Court has not given
any finding with respect to the changed circumstances which the
appellant has brought on record. Learned trial court has not given any
finding qua the allegations leveled and material placed on record by the
appellant; that order of interim custody or custody made by any court is
temporary in nature and that as per the mandate of law minor below the
age of five years shall always remain with the mother is a statutory right

MA No.90/2018 Page 3 of 8
and learned trial Court has not given any finding with respect to said right
of the appellant.

4. Respondent has filed objections and resisted the appeal. It is contended
that the compromise deed has settled everything with regard to the
custody and welfare of the child and both the parties have agreed to the
terms and conditions in which the welfare of the child could be secured
and the monthly maintenance therefore being paid by the respondent, the
petitioner is legally stopped from asserting to the contrary by way of
present appeal. The appellant has played a mischief. He further contends
that once custody/welfare of the minor was finally settled in terms of
order dated 03.10.2017, he cannot seek review of the matter that has
attained finality.

5. Heard learned counsel for the parties and perused the record.

6. Petitioner is precisely aggrieved of order dated 24.04.2018 passed by
learned Additional District Judge, Matrimonial Cases, Jammu by virtue
of which prayer for interim custody of minor child has been declined on
the ground that welfare of the child is of paramount consideration which
is now settled law, yet the trial Court has failed to appreciate the said
settled law and even the choice of the minor is important if she is capable
of making choice which the trial Court has not looked into and the
revelation which she disclosed to her mother have not looked into by the
trial Court and has simply rejected the application that in the compromise
deed the parties have settled all the conditions of the welfare of the child
so there appears nothing to give fresh look to the contentions and
apprehensions of the petitioner which is not legally sustainable under law.
More so the trial Court has not given any finding with respect to the
changed circumstance which the appellant brought on record. Learned
trial court has not given any finding qua the allegations leveled and
material placed on record by the appellant; that order of interim custody

MA No.90/2018 Page 4 of 8
or custody made by any court is temporary in nature and that as per the
mandate of law minor below the age of five years shall always remain
with the mother is a statutory right and learned trial Court has not given
any finding with respect to said right of the appellant.. Respondent on the
contrary has objected to the claim of petitioner on technical grounds that
present appeal is not maintainable as there is no legal infirmity in the
order impugned.

7. The contention of respondent that appeal is not maintainable as there is
no legal infirmity in the order. The settled position of law is that
petitioner is the natural guardian of the minor daughter and she got every
right to the interim custody of the minor child so that the minor child is
not completely alienated from her mother. The minor child requires the
love, care and affection of both parents and for over all development, and
welfare of the child, it is always necessary that though the spouses may
be fighting and litigating against each other but nonetheless the child
should not be used as a tool for satisfaction of their respective egos. The
Courts are always concerned with the welfare of the minor child and the
technicalities have no role to play while adjudicating the disputes with
regard to the minor child and the sole concern of the Court is to see the
welfare of the minor child. The Apex Court in case titled
Tatineni
Mayuri v. Edara Baldev reported in 2016 (13) SCC 377 has held that
in the matters pertaining to custody of minor welfare and interest of child
to be given a paramount importance.

8. Having accorded consideration to the grounds on which the impugned
decision has been assailed by the appellant, I find that in dealing with a
question of custody of a minor in any proceedings the first and paramount
consideration for the court is the welfare and the best interest of the child
more than right of a parent. Another factor is the choice and preference of

MA No.90/2018 Page 5 of 8
the minor if he/she, to the satisfaction of the court, is old enough to make
intelligent choice and preference.

9. Fortunately when this case was heard and reserved for orders, minor had
also come with the petitioner. I have myself spoken to minor girl in my
office Chamber, without either of parents being present, in order to
ascertain her preference in the matter. The child, who is a little more than
04 years of age, is intelligent, having consistently done extremely well in
her studies in school, and I was convinced that despite tussle between her
parents, she would be in a position to make an intelligent choice with
regard to her being in the company of her parents. From my discussion
with the minor, I have been able to gather a lot, reflection whereof as is
generally discernable from such cases is to remain in the company of
father and mother. Parents may have differences but should not have
differences as differences destroy the family especially children as is seen
in the present case. I had also an occasion to interview both father and
mother of minor. Both sides have rabble-rousing claims and counter-
claims as also varied allegative contentions that cannot be gone into and
dealt with in this petition inasmuch as such disputatious claims require
thorough trial and adducing of evidence.

10.Having regard to complexities of the situation in which I have been called
upon to balance the emotional confrontation of the parents of the minor
child and the welfare of the minor, I have given anxious thought to what
would be in the best for the parties at this stage, given case set up by both
sides. Germane to mention here that we are in the self-centred
materialistic epoch, where a woman, girl is unsafe. But exception is
always there. That exception is of person(s), whom we call parents. A
girl, it is well said by all, is safe in the hands of mother and there is no
alternative in place of mother.

MA No.90/2018 Page 6 of 8

11.The minor child of the parties is said to be four years old and is not
denied that she is less than five. Learned City Judge has recorded cogent
and satisfactory reasons for giving the temporary custody of the minor to
her mother. The parties are Hindu by religion and under the Hindu
Minority and
Guardianship Act, 1957, Section 6(a), custody of a minor
who has not completed the age of five years shall ordinarily be with the
mother. There is no reasonable ground for depriving the minor of her
statutory right merely on the basis of allegations leveled by the father,
howsoever grave and serious they might be.

12.The contention of respondent that appellant has proved to be a bad
mother cannot be considered at this stage and it would be in the fitness of
things as well as for the welfare of minor child that till the matter is
finally adjudicated upon by the trial Court, the custody of the minor child
shall remain with the mother and father has a right of access of meeting
with child once a fortnight at least for 2-3 hours preferably on
Sunday/holiday at the residence of appellant or at a place convenient for
both the parties. In this process, appellant shall extend co-operation and
respondent shall also ensure that meeting with a child is peaceful and
without any much show. It is further provided that appellant shall not take
the minor outside Jammu in order to deprive respondent to have meeting
with her without prior permission from the Civil Court. It is also made
clear that this Court has not gone into the merits of the claim and counter
claim of the parties and the order as regards to the temporary arrangement
as to the custody of the child must not be construed as an expression of
opinion as regards the same. It is for the competent Civil Court to
adjudicate the issue and pass an appropriate order considering the welfare
of the minor child in accordance with law. In that view of the matter,
impugned order dated 24.04.2018 passed by the learned Additional

MA No.90/2018 Page 7 of 8
District Judge (Matrimonial Cases), Jammu in case titled Sheetu Kaul v.
Anirudh Singh is set aside.

13.Disposed of as above along with connected MP(s).

(Tashi Rabstan)
Judge
Jammu
17.07.2018
‘Madan’

MA No.90/2018 Page 8 of 8

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