welfare of the minor and the minor alone which is paramount consideration

IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : THE GUARDIANSHIP AND WARDS ACT, 1890
Judgment reserved on: January 31, 2013
Judgment delivered on:April 2, 2013
FAO 39/2012
ROMANI SINGH ….. Appellant
Represented by: Ms.Geeta Luthra, Sr.Advocate instructed by Ms.Ashly
Cherian, Mr.Harish Malik, Advocates
versus
LT.COL.VIVEK SINGH ….. Respondent
Represented by: Mr.V.Shekhar, Sr.Advocate instructed by Ms.Namita Roy,
Mr.Piyush Jain, Ms.Shaveta Chaudhary, Mr.Amit Chobey
& Mr.Jatin Rajput, Advocates
CONT.CAS (C) 178/2012
ROMANI SINGH ….. Appellant
Represented by: Ms.Geeta Luthra, Sr.Advocate instructed by Ms.Ashly
Cherian, Mr.Harish Malik, Advocates
versus
LT.COL.VIVEK SINGH ….. Respondent
Represented by: Mr.V.Shekhar, Sr.Advocate instructed by Ms.Namita Roy,
Mr.Piyush Jain, Ms.Shaveta Chaudhary, Mr.Amit Chobey
& Mr.Jatin Rajput, Advocates
CORAM:
HON’BLE MR. JUSTICE PRADEEP NANDRAJOG
HON’BLE MS. JUSTICE VEENA BIRBAL VEENA BIRBAL, J.
1. This is an appeal under Section 47 of The Guardianship and Wards
Act, 1890 (hereinafter referred to as ‘the Act’) wherein challenge has been
made to the order dated December 7, 2011 passed by the learned Principal
Judge, Family Courts, Dwarka, New Delhi whereby the petition of the
appellant under Section 25 read with 10 and 12 of the aforesaid Act for the
grant of custody of minor daughter, namely, Saesha Singh and for
appointment of appellant as a guardian of the said child, has been dismissed.
2. The marriage between the parties was solemnised on November 25,
2007 as per Hindu rites and ceremonies. A daughter Saesha Singh was born
from their wedlock at Base Hospital, Delhi on October 29, 2008. When the
petition seeking custody and appointment of guardianship of the minor
Saesha Singh was filed, the child was 18 months of age. Presently she is
about 4 years and 5 months of age. Appellant is a teacher in Kendriya
Vidyalaya-3, INA Colony, New Delhi. Respondent is an Army Officer.
The appellant has alleged that respondent had harassed her from the
beginning of marriage for not bringing sufficient dowry, jewellery, etc. and
due to inability to fulfil his demands he had been harassing and ill-treating
her. She had stated that during the posting of respondent outside Delhi, the
appellant had been staying in a rented Government accommodation and had
been maintaining herself and the child. On September 08, 2009 the
respondent was posted in Delhi and was allotted a Government
accommodation at P-30, Pratap Chowk, Delhi and the appellant also shifted
in the said house.
3. The respondent due to his duties used to come from office late. After
returning from office respondent invariably used to drink and thereafter
used to beat the appellant and was also using filthy language. She had
alleged that on December 29, 2009 respondent gave her beating and had
thrown her out of the house. She had alleged that with the intervention of
neighbour she was permitted to enter the house. Again on February 03,
2010 respondent had beaten her and had taken out an army dagger. The
appellant saved herself and her child with great difficulty. In the scuffle
respondent injured his hand and was treated in military hospital. Again on
August 04, 2010 respondent in a drunken state gave beatings to her and
threw her out of the house along with the child. The appellant had called
police. The police personnel called the military police and a complaint was
lodged. Appellant had also called her parents who had come to her house from Noida. Her parents took hold of the child and the appellant and when
they were about to leave, the respondent pulled out the child from the hands
of her mother and went inside the house and locked himself. He was drunk
at that time. The police suggested not to do anything otherwise respondent
would harm the child. It was assured that the child would be returned to her
in the morning. Accordingly, the appellant and the respondent were
instructed to come to the police along with the child in the morning. The
respondent did not bring the child and threatened that he would not give the
child to her. Since then, she had been running from pillar to post to get back
the child but respondent had been refusing.
4. Appellant has alleged that she had been in continuous possession, care
and protection of the child since her birth and respondent has no love and
affection for the child. In his absence, when he is away for duty his Orderly
looks after the girl child. Respondent leaves for his office at 8.30 A.M. and
returns back late in the evening and he is not in a position to look after the
basic needs of the child. She had alleged that after school hours she had
been devoting all her time to the child and during her duties in the school the
child is being looked after by her parents who have been frequently visiting
her house. It is in the mental well being of the child that the custody of the
minor child Saesha Singh be given to her, being her natural mother and she
be also appointed as guardian of the person of the said child.
5. Respondent had filed written statement before the Family Court
opposing the petition filed by her. The respondent has taken the stand that
the appellant is not in a position to look after the child as there is nobody to
look after the child when she is away for work. Her parents are residing at
Noida and she is working and living in Delhi. He has denied having made
demands of dowry or harassing appellant as is alleged. According to him,
their marriage was solemnized at Arya Samaj Mandir and there was no
demand of dowry. He has alleged that appellant herself had given an
affidavit at the time of marriage that no kind of dowry was demanded from
her.
6. The respondent has alleged that from the beginning of marriage he has
provided all the comforts to the appellant and had taken her to various places
outside Delhi. The child was born at Base Hospital, Delhi Cantt. and he had
taken leave at that time. He had been providing the necessary expenses to
her for maintaining her as well as the child as the respondent was having his
salary account with her and she was having ATM card and had been constantly withdrawing the money. He had provided her with various other
facilities the details of which are given in the written statement. He had
alleged that the appellant invariably was getting drunk on their visits to
Army Officer’s Mess in the parties. The appellant used to call him ‘Doom’
meaning scheduled caste in Garhwali language and the appellant herself is a
‘Garhwali Rajput’ and used to call herself Khandani.
7. The respondent has denied the allegations of beating as are alleged by
her. As per him, on August 04, 2010 appellant and the respondent had gone
to Army Mess where she had two drinks and on returning home she asked
for more drinks and on refusal by him she called her parents and a colleague
on telephone. They all came within one hour in two cars. Police was also
called. The policemen called Military Police which also came at the spot.
Thereafter, the appellant and her parents had packed the belongings and had
left the house along with the appellant and her mother had thrown the minor
child on the floor by saying “Ye Doom ki aulad hai hum khandani log hain”
and appellant’s mother told the respondent “Hum apni ladki ko le ja rahe
hain tu apni ladki to apne aap pal le, is ladki ko iski dadi palegi woh apna
farz nibhayegi.”(We are taking back our daughter, you take care of your own
daughter, now her grandmother will take care of her and will do her duty.)
8. The brother of the respondent who is also in Armed Forces and was
staying at a distance of 4-5 kms. from his house had rushed to the
respondent. However, the appellant left the child and went with her parents.
His brother had taken the photographs at that time and has alleged that
appellant has no love and affection for the child and she had abandoned the
child and thereafter had not bothered for her well being. The child is being
looked after by the respondent and his parents and the child is getting love
and affection and is very happy as such petition is liable to be dismissed.
9. Appellant has filed the rejoinder denying all the allegations made
therein and has reiterated the contents of her petition.
10. On the pleadings of the parties, the following issues were framed on
January 13, 2011:-
“1. Whether the petitioner is entitled to the custody of the child as prayed
by him? (OPP)
2. Relief.” 11. The parties led their respective evidences. The appellant had
examined herself as PW1 and the respondent had examined himself as RW1.
12. After hearing the counsel for parties and perusing the record the
learned Principal Judge, Family Courts has dismissed the petition.
13. Aggrieved with the same, the present appeal is filed.
14. Learned senior counsel for appellant has contended that the finding of
the learned Principal Judge, Family Court that the appellant had abandoned
the child on August 04, 2010 is a perverse finding. It is contended that it is
the respondent who had snatched the child from the hands of her mother. It
is submitted that it has come in the evidence that the appellant had also taken
the child’s clothes with her. It is submitted that the same falsifies the stand
of the respondent that she had abandoned the child. It is further submitted
that the trial court has relied upon CD Ex.R-19 which was not proved in
accordance with law. It is further contended that the same is a fabricated
document as whatever was uttered by the respondent to her mother has been
deleted. It is further submitted that the child is below 6 years of age and is
of tender age and is also a girl child. The custody of girl child of tender age
is ought to be given to the mother as she is the best person who can look
after the comforts of the minor child. It is submitted that the learned Family
Court has not appreciated the evidence in a proper manner and has not
considered the totality of facts and circumstances. It is further submitted
that during the pendency of present petition, respondent has also filed a
divorce case against her. It is submitted that in the facts and circumstances
of the present case the impugned order is liable to be set aside.
15. On the other hand, learned senior counsel appearing for respondent
has contended that the child is very comfortable with the respondent. When
the respondent attends his office, his parents take care of the child. It is
submitted that child is getting all love and affection from them. It is
submitted that even when the parties were living together the respondent was
taking care of the child and the child is very much attached to him. It is
further submitted that there is no perversity or illegality in the finding of the
trial court. The learned trial court has rejected the petition after appreciating
the evidence on record. It is further submitted that it is the appellant who
had abandoned the child on August 04, 2010 and the petition has been filed
to harass the respondent as such she is not entitled for any relief. 16. Sector 7 of the Act deals with the power of the court to make order as
to the guardianship. The same reads as under:-
“7. Power of the Court to make order as to guardianship-
(1) Where the Court is satisfied that it 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 instead shall not be made until the
powers of the guardian appointed or declared as aforesaid have ceased under
the provisions of this Act.”
17. Section 8 of the Act enumerates persons entitled to apply for an order
as to guardianship. Section 9 empowers the Court having jurisdiction to
entertain an application for guardianship. Sections 10 to 16 deal with
procedure and powers of Court. Section 17 is another material provision and
may be reproduced as under:-
“17. Matters to be considered by the Court in appointing guardian-
(1) In appointing or declaring the guardian of a minor, the Court shall,
subject to the provisions of this section, be guided by what, consistently with
the law to which the minor is subject, appears in the circumstances to be for
the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall
have regard to the age, sex and religion of the minor, the character and
capacity of the proposed guardian and his nearness of kin to the minor, the
wishes, if any, of a deceased parent, and any existing or previous relations of
the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court
may consider that preference.” 18. While appointing guardian, the court should be guided by the sole
consideration of the welfare of the minor.
19. Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as
“1956 Act”) is another equally important statute relating to minority and
guardianship among Hindus. Section 4 defines “minor” as a person who has
not completed the age of eighteen years. “Guardian” means a person having
the care of the person of a minor or of his property or of both his persons and
property, and inter alia includes a natural guardian. Section 2 of the Act
declares that the provisions of the Act shall be in addition to, and not in
derogation of 1890 Act.
20. Section 6 of aforesaid Act enacts as to who can be said to be a natural
guardian. It reads as under:-
“6. Natural guardians of a Hindu Minor- The natural guardians of a Hindu
Minor, in respect of the minor’s person as well as in respect of the minor’s
property (excluding his or her undivided interest in joint family property),
are –
(a) in the case of a boy or an unmarried girl—the father, and after him, the
mother; provided that the custody of a minor who has not completed the age
of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl – the
mother, and after her, the father;
(c) in the case of a married girl – the husband;
Provided that no person shall be entitled to act as the natural guardian of a
minor under the provisions of this section—
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a
hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation.—In this section, the expressions “father” and “mother” do not
include a step-father and a step-mother.” 21. Section 8 enumerates powers of natural guardian. Section 13 is
extremely important provision and deals with welfare of a minor. The same
may be quoted in extensor as under:-
“13. Welfare of minor to be paramount consideration.
(1) In the appointment or declaration of any person as guardian of a Hindu
minor by a court, the welfare of the minor shall be the paramount
consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions
of this Act or of any law relating to guardianship in marriage among Hindus,
if the court is of opinion that his or her guardianship will not be for the
welfare of the minor.
(emphasis added)
22. It is well settled position in law that in deciding the custody of the
child it is not the welfare of the father, nor the welfare of the mother that is
the paramount consideration for the court. It is the welfare of the minor and
the minor alone which is paramount consideration.
23. In (2008) 9 SCC 413 Nil Ratan Kundu & Anr. v. Abhijit Kundu,
while deciding the matter on the custody of the minor child, the Supreme
Court has dealt with various decisions on the subject by taking into account
interest and well being of the minor as paramount consideration. Some of
the important cases discussed in the aforesaid judgment are as under:-
“42. In Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840, this Court
held that object and purpose of 1890 Act is not merely physical custody of
the minor but due protection of the rights of ward’s health, maintenance and
education. The power and duty of the Court under the Act is the welfare of
minor. In considering the question of welfare of minor, due regard has of
course to be given to the right of the father as natural guardian but if the
custody of the father cannot promote the welfare of the children, he may be
refused such guardianship.
43. The Court further observed that merely because there is no defect in his
personal care and his attachment for his children–which every normal parent
has, he would not be granted custody. Simply because the father loves his
children and is not shown to be otherwise undesirable does not necessarily
lead to the conclusion that the welfare of the children would be better
promoted by granting their custody to him. The Court also observed that
children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children has, in the
modern changed social conditions must yield to the considerations of their
welfare as human beings so that they may grow up in a normal balanced
manner to be useful members of the society and the guardian court in case of
a dispute between the mother and the father, is expected to strike a just and
proper balance between the requirements of welfare of the minor children
and the rights of their respective parents over them.
44. Again, in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha
Dolikuka, (1982) 2 SCC 544, this Court reiterated that only consideration of
the Court in deciding the question of custody of minor should be the welfare
and interest of the minor. And it is the special duty and responsibility of the
Court. Mature thinking is indeed necessary in such situation to decide what
will enure to the benefit and welfare of the child.
45. In Surinder Kaur Sandhu (Smt.) v. Harbax Singh Sandhu, (1984) 3 SCC
698, this Court held that Section 6 of the Hindu Minority and Guardianship
Act, 1956 constitutes father as a natural guardian of a minor son. But that
provision cannot supersede the paramount consideration as to what is
conducive to the welfare of the minor. [See also Elizabeth Dinshaw (Mrs.) v.
Arvand M. Dinshaw, (1987) 1 SCC 42; Chandrakala Menon (Mrs.) v. Vipin
Menon (Capt), (1993) 2 SCC 6].
46. Recently, in Mausami Moitra Ganguli v. Jayant Ganguli, JT 2008 (6) SC
634, we have held that the first and the paramount consideration is the
welfare of the child and not the right of the parent.
47. We observed:
“The principles of law in relation to the custody of a 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 the paramount
consideration is the welfare and interest of the child and not the rights of the
parents 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 are predominant consideration. In fact,
no statute on the subject, can ignore, eschew or obliterate the vital factor of
the welfare of the minor. The question of welfare of the 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 as binding precedents insofar as the factual
aspects of the case are concerned. It is, no doubt, true that father is presumed
by the statutes to be better suited to look after the welfare of the child, being
normally the working member and head of the family, yet in each case the Court has to see primarily to the welfare of the child in determining the
question of his or her custody. Better financial resources of either of the
parents or their love for the child may be one of the relevant considerations
but cannot be the sole determining factor for the custody of the child. It is
here that a heavy duty is cast on the Court to exercise its judicial discretion
judiciously in the background of al the relevant facts and circumstances,
bearing in mind the welfare of the child as the paramount consideration.”
24. In AIR 2009 SC 557 Gaurav Nagpal v. Sumedha Nagpal, the Supreme
Court while deciding the issue of custody of minor held that prime
consideration in deciding such matter is the welfare of the child and not the
right of parents under statute. The relevant para of the judgment is
reproduced as under:-
“42. When the court is confronted with conflicting demands made by the
parents, each time it has to justify the demands. The Court has not only to
look at the issue on legalistic basis, in such matters human angles are
relevant for deciding those issues. The court then does not give emphasis on
what the parties say, it has to exercise a jurisdiction which is aimed at the
welfare of the minor. As observed recently in Mousami Moitra Ganguli’s
case (supra), the Court has to due weightage to the child’s ordinary
contentment, health, education, intellectual development and favourable
surroundings but over and above physical comforts, the moral and ethical
values have also to be noted. They are equal if not more important than the
others.”
25. For deciding the present petition the paramount consideration for the
court is to see with whom the welfare of the child lies.
26. As noted above, the child is presently 4 years and 5 months old. It is
admitted position that parties are living separately since August 04, 2010
and since that day the child is living with the respondent and her
grandparents at Meerut. Presently respondent is also posted at Meerut. The
learned Principal Judge, Family Court during the pendency of petition, had
given appellant/wife and her parents visitation right of the child on 1st, 3rd
and 4th Saturday of every month between 2.30 P.M. to 5 P.M. in court. The
aforesaid order was passed with the consent of parties. While dismissing the
petition only visitation rights for the aforesaid days and duration have been
given to the appellant. 27. During the pendency of the present appeal, interim custody of the
child has been given to appellant on every Friday at 3.30 PM and she has
been returning the child at 6.00 PM on every Sunday and the appellant has
been keeping her daughter for about two days in a week with her.
28. It is also admitted position that the appellant is M.A. English (Hons.)
and B.Ed. and is a TGT Teacher in Kendriya Vidyalaya, INA Colony, New
Delhi for the past 9 years. Respondent is an Army Officer. Presently, he is
posted at Meerut. The Family Judge has mainly relied upon the incident of
August 4, 2010 to deny the custody of the child to her on the ground that she
herself had abandoned the child on the said date. The evidence in this regard
is perused. Appellant has stated in her affidavit Ex.PW1/A that respondent
after getting drunk at night used to beat her without any reasons. She has
given the dates in the affidavit when she was beaten. She has stated that on
August 04, 2010 also he had become very aggressive and had given beating
to her. When she could not tolerate the beatings she called the police at
about 11.30 P.M. and called her parents to save herself. The police arrived
which also called the military police. She gave written complaint to the
police since she was asked to give the same and while she was going out of
the house with the daughter and was about to enter her parents car the
respondent pulled the daughter from the arms of the appellant and ran inside
the house and locked himself and did not hand over the child to her. It was
about 2 AM at that time. On the other hand, the stand of the respondent in
affidavit Ex. RW1/A is that on August 4, 2010 the appellant had taken two
drinks with him in the Officer’s Mess and on reaching home she insisted for
more alcohol and thereupon arguments started and she called her parents and
colleague on phone and they all came within one hour. He has denied the
allegations of beating. The deposition of the respondent about the cause of
quarrel is not believable. It is not believable that on being refused for more
alcohol, she would call her parents as is stated by respondent in his crossexamination. He has also stated in cross-examination that the appellant had
gone with her personal belongings and clothing of the child in presence of
police. The stand of the appellant is that the child was snatched by the
respondent. If the child was abandoned by appellant as is alleged by
respondent, in that event she would not have taken the clothes of the child
with her. The stand of respondent that child was abandoned does not inspire
confidence. Further, appellant has also given an explanation that the police
had called them next day in the police station and it was assured that
respondent would bring the child whereas he did not bring the child. The
Family Court ought to have seen the background in which the appellant had to leave the house at midnight. It is also admitted position that on that day a
quarrel had taken place between the parties. It is also admitted position that
her parents had come all the way from Noida in the house of the respondent
at Pratap Chowk, Delhi Cantt. The appellant has also stated her condition in
which she was standing. According to respondent the mother of the
appellant had left the child and uttered certain words against the respondent.
Assuming what respondent is saying is correct, if in the aforesaid
circumstances the mother of the appellant had left the child and uttered some
words that does not mean that the appellant who is her mother be deprived
of her custody forever. The learned Family Judge has not appreciated the
fact that from the birth of the child i.e. from October 29, 2008 till August 04,
2010 i.e. for 21 months the child had throughout been with the appellant
who has been attending her school as well as taking care of the child after
school hours. There is nothing on record to show that the appellant had
neglected the child for a single day during that period. Neither the same is
the stand of respondent.
29. The other reason given by the trial court in denying the custody of the
child to her is that appellant has been posted at Balmer, Rajasthan since June
28, 2011 for 3 years and is living there in a rented accommodation along
with her father and in these circumstances it will not be appropriate to give
the child to her. However, during the pendency of the appeal it has been
informed that the appellant has been transferred back to Kendriya Vidyalaya,
INA Colony, Delhi with effect from 11/13.10.2011 and is presently teaching
in aforesaid school. In view of above change in circumstances, the said fact
cannot be taken against the appellant.
30. Further the learned Principal Judge has also taken into consideration
CD(video recording) Ex.R-19 in coming to conclusion that child was left by
appellant of her own with respondent on 04.08.2010, as such the custody of
the child cannot be given to her. The transcript of aforesaid CD is on record.
We have perused the same. It is stated by respondent that his brother had
videographed from 12.30 AM to 2.30 AM on the midnight of 04.08.2010
from his video camera. The ld.counsel for the appellant has contended that
CD Ex.R-19 is a fabricated document. It is contended that respondent and
his brother were admittedly present at that time. It is not believable that
they had not uttered a single word at that time. It is contended that whatever
they had uttered has been deleted in Ex.R-19. It is contended that CD
Ex.R-19 being a fabricated document cannot be taken into consideration.
On the other hand stand of respondent is that same is genuine one. It is true that transcript of CD Ex.R-19 on record does not show anything spoken by
respondent or his brother at that time. It is not believable that in the moment
of heated arguments they were silent spectators. In these circumstances, CD
Ex.R-19 cannot be free from suspicion. For the sake of arguments assuming
CD Ex.R-19 is genuine, even then nothing has been said therein by
appellant. Even if out of anger something is said by her mother, the same
should not deprive appellant of the relief which she is otherwise entitled.
31. The role of the mother in the development of a child’s personality can
never be doubted. A child gets the best protection through the mother. It is
a most natural thing for any child to grow up in the company of one’s
mother. The company of the mother is the most natural thing for a child.
Neither the father nor any other person can give the same kind of love,
affection, care and sympathies to a child as that of a mother. The company
of a mother is more valuable to a growing up female child unless there are
compelling and justifiable reasons, a child should not be deprived of the
company of the mother. The company of the mother is always in the welfare
of the minor child.
32. It may be noticed that the stand of the appellant is that since August 4,
2010 she had been pursuing for the custody of her child. She had also
visited the police station and approached the CAW Cell. It is also admitted
position that within 22 days i.e. on August 26, 2010 the petition for the grant
of custody of child was filed by her. Had she abandoned the child of her
own she would not have pursued continuously thereafter for getting the
custody of the child. Even she had requested the learned Principal Judge,
Family Court for interim custody of the child which was given to her in the
form of visitation rights thrice in a month and she and her family had been
meeting the child during that period. After filing the appeal, the appellant
has been taking the interim custody of the child as is stated above. In these
circumstances, it cannot be said that the appellant has not cared for the child.
Further, respondent is an Army Officer. During the course of his service he
will be also getting non-family stations and it will be difficult for him to
keep the child. Further, even though as per him his parents are looking after
the child but when the natural mother is there and has knocked the door of
the court without any delay and has all love and affection for the child and is
willing to do her duty with all love and affection and since the birth of the
child she has been keeping the child. In these circumstances, she should not
be deprived of her right especially considering the tender age and child
being a girl child. The grandparents cannot be a substitute for natural mother. There is no substitute for mother’s love in this world. The
grandparents are old. Old age has its own problems. Considering the
totality of facts and circumstances, the welfare of the child lies with the
mother i.e. appellant who is educated, working and earning a good salary
and after school hours has ample time to spent with the child. In these
circumstances, impugned order is set aside and the request of the appellant
for the grant of custody of the said child to her being natural mother is
allowed and the appellant is also appointed as guardian of her child being a
natural guardian/mother.
33. Since the child is a school going child and respondent is living at
Meerut, in these circumstances, respondent will be at liberty to take the child
from the appellant on every 4th Friday of the month at 5.30 P.M. and the
child shall spend two days with the respondent. The child shall remain with
the father on Friday followed by Saturday and Sunday. The child shall be
returned safely to the mother on Sunday at 6.00 P.M.
34. Each year during Summer vacation custody of Baby Saesha Singh
would be entrusted by the appellant to the respondent for a period of 15 days
to be inter-se agreed upon between the parties and in case of any nonagreement, the dates to be decided by the learned Family Court.
35. Each year during Winter vacations Baby Saesha Singh would be
entrusted by the appellant to the respondent for a period of 4 days to be
inter-se agreed upon between the parties and in case of any non-agreement,
the dates to be decided by the learned Family Court.
36. On the birthday of child, custody of Baby Saesha Singh would be
entrusted to the respondent for a period of 4 hours in the evening, the exact
hours to be mutually agreed upon by the parties.
37. The appeal stands disposed of accordingly.
38. No costs.
Cont.Cas(C) 178/2012
1. This contempt petition is filed by the appellant/wife wherein it is
alleged that respondent/husband has violated the order of this court dated
21st February, 2012 passed in the aforesaid FAO whereby this court has given interim custody of the child to the appellant on every Friday from 2.30
pm uptil Sunday 6 pm. It is alleged that as per the said order,
respondent/husband was to hand over the child to the appellant/wife at her
school i.e., Kendriya Vidyalaya, INA Market at 2.30 p.m. on every Friday.
It is alleged that in terms of the said order, respondent did not bring the child
on February 24, 2012, March 2, 2012 and March 9, 2012, as such, he has
violated the court order and he be punished for wilful and deliberate
disobedience of the aforesaid order. The contempt petition is supported by
her affidavit.
2. Respondent/husband has filed reply denying the allegations made in
the said application. According to him, on February 24, 2012, the child had
developed rashes on her body and was sick. The doctor had advised the
respondent to keep the child in confinement and not to send her to school.
Despite that, he along with the child had gone to the school of the appellant
at about 3 p.m. and waited outside the school but applicant did not come to
take the child, as such, he was compelled to return back as the child was
sick. Thereafter, on March 2, 2012, after returning from office, he picked up
the child and reached the school gate of the appellant at 2.15 pm. The
school gate was closed. After great difficulty, he had called the appellant
and when she came out, he asked her as to what arrangement she had made
to take the child to a far off place like Noida. On hearing that, appellant
misbehaved with him. As a result of which, he came back with the child. On
March 9, 2012, he could not bring the child to the school as due to Holi
holidays there was lack of attendance, as such, on March 6, 2012, he had
called appellant on her mobile phone but she did not pick up the call of the
respondent. Even the appellant is having his mobile phone but she did not
call back. The reply is supported by the affidavit of respondent. According
to respondent/husband, there is no wilful disobedience by him.
3. There is an affidavit against affidavit. Prima facie appellant has not
filed any proof in support of her allegations. The interim order of this court
has continued till today. There is no violation alleged by the appellant after
March 6, 2012. The main matter has already been decided in favour of the
appellant wherein the custody of the child has been ordered to be handed
over to her and she has been appointed as guardian of the minor child and
respondent/husband has been given the visitation/meeting rights as are
detailed in the said order. In these circumstances we are of the view that no
orders are required on this contempt petition. The same stands disposed of
accordingly.
Sd/- (VEENA BIRBAL)
JUDGE
Sd/-
(PRADEEP NANDRAJOG)
JUDGE
April 2, 2013

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