IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No. 330 of 2017
Reserved on: 16.04.2018
Decided on: 19.04.2018

Smt. Nirmala Devi …Petitioner/Appellant

.

Versus
Sh. Uma Dutt …Respondent

Coram

The Hon’ble Mr.Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? No.

For the Appellant: Mr. J.L. Bhardwaj, Advocate.

For the respondent: Mr. B.C. Verma, Advocate.

Justice Tarlok Singh Chauhan, Judge

The appellant who has been denied the custody of

children born to her from the loins of the respondent has filed this

appeal under Section 47 of the Guardians and Wards Act, 1890 (for

short the ‘Act’).

2. The brief facts of the case are that the appellant filed a

petition under Section 25 of the Act for the custody of twins master

Bhupesh Kumar and master Bhuwnesh Kumar from the respondent,

alleging therein that marriage of the parties had been solemnised on

31.07.2005. She has given birth to the aforesaid above-named twins

on 24.06.2006, however, due to maltreatment given by respondent,

she left his company and thereafter obtained mutual divorce on

17.02.2012. The respondent after the divorce did not allow the

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appellant to meet the children despite having committed and

consented at the time of entering into mutual divorce.

3. It was further alleged that the appellant after obtaining

.

divorce had got married to one Yadav Chand. Since, the appellant

after giving birth to the above-named twins, underwent operation of

family planning on the request of the respondent, she now cannot

conceive and give birth to another child, which according to her

would affect her marital life. It was also contended that the appellant

on the basis of the mutual divorce and understanding arrived at that

time was always under impression that she had equal right upon her

children but the respondent did not permit her to meet children

much less take their custody.

4. The appellant after coming to know that respondent was

maltreating the children and was not taking appropriate steps for

day-to-day expenses, necessities, clothing, education etc., filed

petition seeking direction to the respondent to handover the custody

of the said children with further direction that during the pendency of

this petition, the appellant be permitted to meet the minor twins.

5. The respondent filed reply to the petition and took

various preliminary objections regarding maintainability, locus standi,

estoppel etc. On merits, it was submitted that the appellant was not

residing at village Hiranali but was residing at village Palog where the

respondent is also residing. It was submitted that twins were being

looked after by the respondent, his parents and brother and are

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being provided the best facilities. It was further submitted that even

during the period when appellant had been residing with the

respondent she was having extra marital relationship with Yadav

.

Chand, as a result of which, she refused to live in the company of the

respondent. She refused to discharge the matrimonial obligation and

ultimately relationship of husband and wife between the parties

came to an end.

6. Therefore, in such circumstances, when Yadav Chand

who was instrumental for the break-down of the relationship between

the husband and wife, it would not be in the interest and welfare of

the minor children to put them in the care and custody of the

appellant, who otherwise does not even have the requisite financial

resources to bring up these children as she was barely earning only

Rs.6000/- per month, whereas the respondent is in a better financial

position to bring up, maintain and educate the minor children. It was

further averred that the appellant is not interested in the welfare of

the minor children as she has little love and affection for them, as is

evident from the fact that at the time of effecting mutual divorce she

had given in writing that she would have no association with the

children.

7. The appellant did not choose to file any rejoinder to the

reply filed by the respondent and out of the pleadings of the parties,

the learned trial Court on 18.12.2014, framed the following issues:-

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1. Whether the petitioner is entitled for the custody of
master Bhupesh Kumar and master Bhuvnesh
Kumar?..OPP

2. Whether the petition is not maintainable?..OPR

.

3. Whether the petitioner has no locus standi to file the

present petition?..OPP

4. Whether the petitioner is estopped to file the present

petition on account of her own acts and conduct?..OPR

5. Relief.

8. The learned Court below after recording the evidence

and evaluating the same dismissed the petition, constraining the

appellant to file the instant appeal.

9. It is vehemently argued by Shri J.L. Bhardwaj, learned

Advocate, that the findings recorded by learned Court below are

absolutely perverse as these are contrary to the pleadings as also to

the evidence both oral and documentary available on record,

therefore, deserve to be set aside.

10. On the other hand, Shri G.D. Verma, learned Sr. Counsel,

duly assisted by Shri Romesh Verma, learned Advocate, would

contend that the judgment passed by the learned Court below is

based on correct appreciation of the pleadings and the evidence,

thus, cannot be termed to be perverse and therefore, to be affirmed.

I have heard learned counsel for the parties and have

gone through the records of the case.

11. Adverting to the pleadings of the parties, it would be

noticed that the specific case set-up by the appellant in petition

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under Section 25 of the Act is that the minor twins were not being

properly brought up and rather being maltreated by the respondent

as he was not providing day-to-day expenses, clothing and

.

education to the minors.

12. However, as rightly noticed by the learned Court below,

the appellant has not been able to lead any cogent and convincing

evidence to this effect.

13. The appellant appeared as PW1 and stated that it was

on account of unethical, quarrelsome and erratic behaviour of the

respondent, she has compelled to leave her matrimonial home and,

therefore, obtained mutual divorce on 17.02.2012 by executing

affidavit before Executive Magistrate, Sunni. After divorce, the

respondent did not allow her to meet the children despite the

commitment and consent as given by the respondent at the time of

effecting divorce. She further stated that she after getting divorce

from the respondent, married to one Yadav Chand but could not

conceive as she had undergone the family planning operation.

14. Lastly, she stated that respondent had no means and

willing to bring up the minor children and in case the custody of the

children kept with the respondent the future of the minor children

would be totally ruined and since the respondent was not providing

day-to-day expenses, clothing and education etc. to the children,

therefore, the custody be handed over to her.

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15. In cross-examination, the appellant stated that Yadav

Chand was known to her for the last 7-8 years and admitted that she

has not obtained decree of divorce from a competent Court and

.

voluntarily stated that she had taken the divorce at Tehsil. She has

also admitted that she was living with Yadav Chand without getting

decree of divorce. She further stated that she solemnised marriage

with Yadav Chand in the year, 2012. She lastly admitted that

respondent was earning well and he was also having landed

property, whereas she was earning only Rs.6000/- per month.

16. On the other hand, respondent appeared as RW-5 and

tendered in evidence his affidavit Ex.RW5/A, wherein he stated that

the allegations levelled by the appellant against him were totally

false and even during the subsistence of marriage, the appellant was

having affair with Yadav Chand and due to this reason she left his

company and the company of the minor children and even after

repeated request, the appellant did not join the company or take

care of the minor children, rather solemnised marriage with Yadav

Chand. He further stated that the appellant had sworn an affidavit

before the executive magistrate, Sunni, wherein she specifically

stated that both the children would remain with the respondent. He

further stated that the appellant had no love and affection and

respect for the children because after solemnising marriage with

Yadav Chand she did not even tried to meet the minor children and

take care of them. He further stated that the appellant had no

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source of income and had falsely deposed that she was earning by

doing job in the shop whereas the respondent was a carpenter and

earning Rs.25,000/- per month and was thus in a better position to

.

provide education and take care of other things of the children. He

also tendered in evidence compromise Ex. RW5/B and Ext. DA. Even

though this witness was cross-examined but there is hardly anything to

impeach or discredit his testimony as he has specifically and

categorically denied that after divorce, the appellant had been

visiting the children to meet them. He further denied that in

connection with his job, he was required to visit different places and

was not able to take care of the children. He further denied that the

signature of the appellant in Ext. RW5/B were forcibly obtained and

further denied that he had not permitted the appellant to meet her

children.

17. At this stage, it would be relevant to advert to the

testimony of the other witnesses examined by the respondent.

18. Shri Bhup Ram appeared as RW4 and testified that he

was resident of the Panchayat of the parties to the petition and

remained its Pradhan from the year 2011 to 2015. He further stated

that respondent has filed an application before the Panchayat

alleging therein that his wife had illicit relation with Yadav Chand and

due to this their relationship had been strained. Thereafter, both the

parties were called and appellant had told that she was having

mobile phone of Yadav Chand and had been talking to him but

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undertook that she would return the mobile phone to Yadav Chand

and would not keep and maintain any relation with him. The

application has been produced on record as Ext. DB which contains

.

the signature of the appellant encircled ‘B’. He further stated that

Nirmala Devi had soleminised second marriage with Yadav Chand

and was residing with him, whereas the children were being looked

after by the respondent and other family members. This witness was

subjected to cross-examination but nothing contrary could be

elicited therefrom, because this witness categorically denied that

letter Ext. DB was forcibly taken from the appellant.

19. RW3 Sandhya Devi stated that she recognised both the

parties to the petition. She earlier was B.D.C. member at Bahal

Panchayat. She further stated that appellant having an affair with

Yadav Chand on account of which there was discord between the

parties. She further deposed that it was in her presence that the

appellant stated that she wanted to reside with Yadav Chand and

she would not keep her children and it would be the responsibility of

the respondent to maintain them. She further stated that appellant

had no love and affection for her children because had she been

any love and affection for children she would not have left her

children and then proceeded to solemnise marriage with Yadav

Chand.

20. Hira Lal appeared as RW1 and stated that he recognised

both the parties to the petition. He further deposed that appellant did

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not want to reside with the respondent because she was already in

relationship with the Yadav Chand and parties had effected

compromise by executing affidavit Ext. RW1/A before the Tehsildar

.

which contained his signature and thereafter divorce deed was

executed on 17.02.2012 and at that time the appellant had

accepted that her children would reside with respondent because

she could not maintain them. She did not maintain any relationship

with the children as she had soleminised second marriage with Yadav

Chand. Even this witness was again subjected to cross-examination

but nothing contrary could be elicited therefrom.

21. Thus, on perusal of the statements as referred to above, it

becomes apparent that appellant had solemnised marriage with

Yadav Chand and was residing with him.

22. At this stage, certain documents as have been duly

exhibited and proved on record need to be noticed.

23. Ext. DA is the written document executed on 12.02.2012

whereby the appellant has categorically stated that she was handing

over the custody of the children to the respondent and she has no

relationship henceforth with them. It is apt to reproduce the entire

contents of Ext.DA, which reads thus:-

“आज दनाक 12.2.2012 को मै िनमला दे वी प ी उमा

द गाँव पनोहल अपनी पूर होशो हवास से अपने दो बच

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को अपने पित के पास स हाल रह हूँ मेरा इनसे तलाक

के प ात कोई समब नह ं रहे गा !

िनमला दे वी गवाह

.

Sd/- 12.2.2012

1. Sd/-
2. Sd/-
3. Sd/- ”

24. Ext. DB is a letter written by the appellant to the Pradhan

undertaking therein that she would not unnecessarily quarrel with the

respondent and would not keep any relation with Yadav Chand. Ext.

DB which reads thus:-

“सेवा म,

ीमान धान,
ाम पंचायत,

नीन !

वषय:- आज के बाद पछली कये गये हरकत के समबद

आज दनाक 11.10.2011 मै िनमला दे वी प ी उमा

द गाँव, प हे ल िन. िल. गवाह के सामने यहाँ तहर र हूँ क मै
आज के बाद अपने प रवार के साथ कसी कार का लड़ाई
झगडा नह ं क ँ गी और न ह मै यादव पु द प राम गाँव पालोग
जसका मोबाइल मेरे पित ने मेरे से बरामद कया है के साथ
कसी कार का समब ध नह ं रखुगी और न ह उसके साथ
कसी कार क बातचीत क ँ गी ! मै अपने घर मे आगे

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इ सािनअत क तरह रहूंगी! य द आइ दा उपरो कसी कार
क गलती करती पाई जाऊंगी तो मेरे पित का हक़ होगा क वह
मेरे खलाफ कानूनी कायवाह अमल मे ला सकता है ! इसम
मेरा कोई ऐतराज न होगा! मै यह तहर र अपनी होशवास मे

.

िलखकर दे रह हूँ.

गवाह शुद िनमला दे वी

Sd/- sd/-”

25. Ext. RW5/B is the compromise entered between the

parties whereby it has been provided that the appellant would be

permitted to meet the children only with the consent of the

respondent because it would adversely impact the education as also

the mental state of the children.

This in entirety is the evidence led by the parties.

26. Before adverting to the relative merits of the case, it is

worthwhile to mention that the minors are currently aged about 12

years and were produced before this Court, but did not show any

interest to accompany the appellant and, as a matter of fact, they

even refused to recognise her, probably because of the time lag,

due to the re-marriage of the appellant. The children are living with

their father, who has sufficient means to maintain them and in a

better financial conditions to look after them. The father of the minors

is a mason and earning sufficiently well from his trade. That apart, the

other family members of the father of the minors, for the time being,

are in a better position to look-after the minors.

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27. On the other hand, the appellant is earning Rs.6000/-

only and there is no evidence led by her that in her absence the

other persons in the family to look after the minors.

.

28. What cannot be ignored at this stage is the fact that the

appellant has got married to Yadav Chand, who, in fact, was

instrumental and the cause of break-down of the marriage of the

parties and, therefore, in such circumstances, it would not be prudent

or wise to handover the custody of minors to the appellant, who have

even refused to recognise her.

29. However, it needs to be clarified that the mere fact that

the appellant has re-married in itself may not be a ground for

depriving her of her parental right to custody and in the given facts

and circumstances this Court is required to look into the other

surrounding circumstances.

30. The principles of law in relation to custody of minor child

are well settled. It is trite that while determining the question as to

which parent the care and control of a child should be committed,

the first and paramount consideration is the welfare and interest of

the child and not the rights of the parties under a statute.

Indubitably, the provisions of law pertaining to the custody of child

contained in either the Guardians and Wards Act, 1890 (Section 17)

or the Hindu Minority and Guardianship Act, 1956 (Section 13) also

hold out the welfare of the child as a predominant consideration. In

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fact, no statute, on the subject, can ignore, eschew or obliterate the

vital factor of the welfare of the minor.

31. The question of welfare of minor child has again to be

.

considered in the background of the relevant facts and

circumstances. Each case has to be decided on its own facts and

other decided cases can hardly serve any binding precedents. Even

in case of Lekha vs. P. Anil Kumar (2006) 13 SCC 555, which has been

strongly relied upon by the learned counsel for the appellant to

contend that the mere fact that the mother has re-married again is

no ground for depriving her parental right to custody as clearly held

by the Hon’ble Supreme Court that it is the welfare and interest of the

child that has to be looked into and it was observed as under:-

“21. However, in the present case, we have to decide in the interest
of the child as to who would be in a better position to look after the
child’s welfare and interest. The general view that the courts have

taken is that the interest and welfare of the child is paramount. While
it is no doubt true that under the Hindu law, the father is the natural
guardian of a minor after the age of six years, the court while

considering the grant of custody of the minor to him has to take into

account other factors as well, such as the capacity of the father to
look after the child’s needs and ro arrange for his upbringing. It also
has to be seen whether in view of his other commitments, the father

is in any position to give personal attention to the child’s overall
development.”

32. At this stage, it needs to be clarified that no doubt the

previous conduct of the appellant has been rash and reckless in

certain respects but that in no manner has influenced this Court while

passing the instant order.

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33. Once the minor children, who otherwise were intelligent

enough, have shown their complete reluctance to go with the

appellant and, in fact, have not even recognised her, then in such

.

circumstances, there can be no question of handing over the

custody of the minors to the appellant as the same would not be

either in the interest or the welfare of the minors.

34. At this stage, it would be apposite to refer to the

judgment of M.K. Hari Govindan vs. A.R. Rajaram AIR 2003 Mad 315,

wherein the Court held that custody cases cannot be decided on

documents, oral evidence or precedents without reference to

“human touch”. The human touch is the primary one for the welfare

of the minor since the other materials may be created either by the

parties themselves or on the advice of counsel to suit their

convenience.

35. Here reference can also conveniently be made to the

judgment of Hon’ble Supreme Court in Kamla Devi vs. State of H.P.

AIR 1987 HP 34, wherein the Court observed that “the Court while

deciding child custody cases in its inherent and general jurisdiction is

not bound by the mere legal right of the parent or guardian. Though

the provisions of the special statutes which govern the rights of the

parents or guardians may be taken into consideration, there is

nothing which can stand in the way of the Court exercising its parens

patriae jurisdiction arising in such cases giving due weight to the

circumstances such as a child’s ordinary comfort, contentment,

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intellectual, moral and physical development, his health, education

and general maintenance and the favourable surroundings. These

cases have to be decided ultimately on the Court’s view of the best

.

interest of the children whose welfare requires that he be in custody

of one parent or the other.”

36. Even though a number of judgments have been cited by

either of the parties, but then as held by the Hon’ble Supreme Court

in Nil Ratan Kundu vs. Abhijit Kundu (2008) 9 SCC 413 that the cases of

custody have to be decided on the facts and circumstances of the

each cases and precedents on the subject may not be safe to rely

upon.

37. In the instant case, this Court is of the considered view

that the learned Court below after taking into consideration the well

settled principles of welfare of the child as paramount consideration,

passed the impugned order, which cannot be said to be either

illegal, much less perverse and the same, therefore, calls for no

interference.

38. In view of the aforesaid discussion, I find no merit in this

appeal and accordingly the same is dismissed, leaving the parties to

bear their own costs. Pending application(s), if any, also stands

disposed of.

(Tarlok Singh Chauhan),
Judge.

April 19, 2018
sanjeev

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