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Smt. Archana vs Satyapal Singh on 12 December, 2019

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Appeal from Order (AO) No. 316 of 2018

Smt. Archana …………Appellant

Versus
Satyapal Singh ………Respondent

Mr. Deep Chandra Joshi, Advocate for the appellant.
Mr. Mahavir Singh Tyagi, Senior Advocate, assisted by Mr. Sunil Chandra and Mr.
Rajendra Tamta, Advocate for the respondent.

Hon’ble Alok Singh, J.

Hon’ble Ravindra Maithani, J.

Hon’ble Ravindra Maithani J. (Oral)

This appeal under Section 19 of the Family Courts Act, 1984
has been preferred against the ex-parte judgment and order dated
05.05.2018, passed in Misc. Case No. 09 of 2016, Satyapal vs. Smt.
Archana, by the Court of Family Judge, Camp Court, Laksar, District
Haridwar (“the case”).

2. By the impugned judgment and order, an application filed
under Section 7 read with 10 of the Guardians and SectionWards Act, 1890 (for
short, ‘the Act’) has been allowed and the respondent has been appointed
guardian of the two minor children, namely, Kumari Vaishnavi and Master
Anmol. It has further been directed that the appellant shall handover the
custody of the children to the respondent within a month since then.

3. Learned counsel for the appellant would argue that in the case,
the appellant could not appear to contest it out of fear of false implication
by her in-laws. It is argued that soon after the death of her husband, she left
her matrimonial house in the month of February, 2014 and joined her
second husband. Both the children are studying in a good school. The
appellant is capable of earning. She is a business woman, who runs the
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business of water solution. She files income tax returns. It is argued that the
appellant should be given opportunity to contest the case.

4. On the other hand, learned counsel for the respondent would
argue that whatever arguments have been raised on behalf of the appellant
are not pleaded anywhere. The arguments are dehors of any pleadings; the
appellant willfully absented herself to participate in the case, she
disappeared and on 17.02.2018, the court passed an order to proceed ex
parte against her. Thereafter, the impugned order was passed on
05.05.2018. The appellant even did not choose to file an application for
setting aside the ex parte judgment and order. It is argued that the appeal
deserves to be dismissed.

5. The instant is not an adversial litigation in true sense. In fact,
those who are, visible as parties in the case, are not directly or in fact,
substantially, either winner of looser in this matter. This is a litigation for
custody of children, who are minor. In the application, which was filed
under Section 7 read with 10 of the Act, on 2nd July, 2016, the age of her
daughter Km. Vashinavi was recorded as 10 years and the age of son
Master Anmol is 7 years. Perusal of the ex parte judgment reveals that in
fact, after service of notice upon the appellant she was represented and
vakalatnama was filed on her behalf. The court, directed her to appear
personally, but thereafter she disappeared.

6. The respondents and three more persons Mohan Singh, Jay
Kumar and Ved Prakash filed affidavits in support of the application under
Section 7 read with Section 10 of the Act and the case was decided ex
parte.

7. In this matter, after the impugned judgment was passed, in the
execution proceedings, the custody was obtained by the respondent. This
fact was brought to the notice of the Court. This Court on 24.09.2019
required the respondent to produce both the children before the Court, and
passed the following order:

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“This is an appeal against the order passed in Section 7 and Section10 of
the Guardians and SectionWards Act, 1890. By the impugned order, custody of
the minor children was given to the respondent. Today, the appellant is
before the Court and informs that after hearing of this matter on
02.09.2019, when the appeal was admitted, the respondent, forcefully
with the assistance of police, took away the children from her custody.
The children have to appear for their examination. They are being
tortured by the respondent.

List this case on 26.09.2019. On that day the respondent as well
as both the minor children shall remain present before the Court.

It shall be the duty of the respondent to produce the minor
children before this Court.

List this case on 26.09.2019, just after fresh cases.”

8. On the subsequent date, i.e. 26.09.2019, both the children
appeared before the Court. The Court observed in the order as to what the
children have stated. It is recorded as hereunder:

“As stated, the Court interacted with the children also, who are
much articulate and clear in their mind. Both the children express their
desire to stay with their mother. In fact, the elder daughter Vaishnavi
would inform that when she was taken by the Police from the custody of
her mother, on that day itself she was to appear in her examination in
school at Delhi but she could not appear.”

9. There are various provisions under various statutes which deals
with the custody of the children. Section 7 of the Act empowers the Court
to appoint a guardian of a minor. It reads as hereunder:

“7. Power of the Court to make order as to guardianship.–
(1) Where the Court is satisfied that is for the welfare of a minor that
an order should be made–

(a) appointing a guardian of his person or property, or both, or

(b) declaring a person to be such a guardian,
the Court may make an order accordingly.

(2) An order under this section shall imply the removal of any
guardian who has not been appointed by will or other instrument or
appointed or declared by the Court.

(3) Where a guardian has been appointed by will or other instrument or
appointed or declared by the Court, an order under this section
appointing or declaring another person to be guardian in his stead shall
not be made until the powers of the guardian appointed or declared as
aforesaid have ceased under the provisions of this Act”

(emphasis supplied)
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10. A bare perusal of Section 7 reveals that the order may be
passed by the Court once it is satisfied that it is for the welfare of a minor.

The crux of the matter is “welfare of the minor”.

11. In the case of SectionVikram Vir Vohra vs. Shalini Bhalla, (2010) 4
SCC 409, this aspect has been discussed. Although, the matter in the case
was under Section 26 of the Hindu Marriage Act, 1955, but, in para 15, of
this judgment, the Court categorically held that even though the principles
have been laid down in proceedings under the Guardians and SectionWards Act,
1890, these principles are equally applicable in dealing with the custody of
a child under Section 26 of the Hindu Marriage Act, 1955, since in both the
situations two things are common; “the first, being orders relating to
custody of a growing child and secondly, the paramount consideration
of the welfare of the child. Such considerations are never static nor can
be they squeezed in a straight jacket, therefore, each case has to be
dealt with on the basis its peculiar facts.”

12. In para 12 of the Vikram Vir Vohra (supra), Hon’ble Court
further observed as hereunder:

“12. In a matter relating to the custody of a child, this Court must
remember that it is dealing with a very sensitive issue in considering the
nature of care and affection that a child requires in the growing stages of
his or her life. That is why custody orders are always considered
interlocutory orders and by the nature of such proceedings custody
orders cannot be made rigid and final. They are capable of being altered
and moulded keeping in mind the needs of the child.”

13. In the case of Mamta alias Anju vs. Ashok Jagannath Bharuka,
(2005) 12 Supreme Court Case 452, in a litigation between the parties,
when an application for custody of child was moved, it was allowed and the
Court laid down a few steps which must be followed before deciding such
issue as to whether the custody should be given to father or mother or
partially to one and partially to the other. It was held that in such matters
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“the High Court must (a) take into account the wishes of the child
concerned, and (b) assess the psychological impact, if any, on the change in
custody after obtaining the opinion of a child psychiatrist or a child welfare
worker. All this must be done in addition to ascertaining the comparative
material welfare that the child/children may enjoy with either parent.”

14. What is paramount consideration in this case is welfare of the
children. Children are not so minor that they are not able to make their mind
and speak before the court. Even if required in some cases court can take
help of psychiatrist to ascertain the psychological impact, which might
occur in case of change custody of children. Such exercise has not been
undertaken by the learned court below while passing the impugned
judgment, therefore, this Court is of the view that the impugned judgment
and order deserves to be set aside and appeal allowed.

15. One of the normal consequences of this order would be that the
learned court below would interact with the children and assess their
welfare. This Court has not gone into causes of non appearance of the
appellant in the case. Though it is argued that out of fear, the appellant
could not continue to contest the case. Be that as it may, this Court is of the
view that the appellant should also be permitted to place the material before
the Court so that the court may reach at a conclusion with regard to the
welfare of the children.

16. The impugned judgment and order is set aside. Both the parties
shall participate in the proceedings and the case shall be decided, in
accordance with law.

17. Both the parties shall remain personally present before the
Court below on 21st January, 2020.

(Ravindra Maithani, J.) (Alok Singh, J.)
12.12.2019
Ujjwal/Kaushal

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