No maintenance for Qualified wife – CrPC 125- Delhi HC

IN THE HIGH COURT OF DELHI AT NEW DELHI
CM(M) 1153/2008

KAVITA PRASAD ….. Petitioner
Through: Mr. S.D. Singh, Adv.
versus
RAM ASHRAY PRASAD ….. Respondent
Through:
CORAM:HON’BLE MR. JUSTICE SHIV NARAYAN DHINGRA

O R D E R
01.10.2008
The petitioner who is an MBBS qualified Doctor and admittedly had been in practice before, claims that she was sitting at home despite being a qualified Doctor and does not work. The petitioner claimed maintenance against her husband who is in service. The Trial Court granted maintenance of Rs.4,000/- per month. This petition is made against observation of the Trial Court that she was working somewhere and earning around Rs.8,000 to 10,000/- PM and that the maintenance granted by the Trial Court was made subject to adjustment of the maintenance being received by her under Section 125. Since counsel for the petitioner states that petitioner is not working anywhere, despite being a qualified Doctor, I consider that as she is receiving maintenance from husband, the Court should not allow her experience and qualification to go waste. I consider that she should be directed to work as a honorary Doctor in some public welfare institute or school free of charges where she can take care of health of the poor people. Let her come to Court and give an undertaking that she was prepared to work without charging anything in any institution named by this Court around her house minimum 5 hours a day and 6 days a week, so long she receives maintenance from her husband on the plea of being unemployed.
List on 23rd October, 2008.

SHIV NARAYAN DHINGRA,J
OCTOBER 01, 2008

SC- PREVENT INTERIM MAINTENANCE UNDER 125 CRPC IF CASE ONGOING IN HMA

Chand Dhawan Vs Jawaharlal Dhawan [ SC ]
SMT. CHAND DHAWAN

Vs.

JAWAHARLAL DHAWAN [1993] RD-SC 303 (11 June 1993)
PUNCHHI, M.M.
YOGESHWAR DAYAL (J)

CITATION: 1993 SCR (3) 954 1993 SCC (3) 406 JT 1993 (4) 22 1993 SCALE (3)1

ACT:
Hindu Marriage Act, 1955-S. 25 and Ss. 9 to 14, 24 & 28-`Any decree’ in S. 25-Dismissing of matrimonial petition, held, does not constitute `only decree’ for award of permanent maintenance or alimony–Marital status has to be affected or disrupted for maintenance to be awarded–Evidence Act, 1862, s. 41 Hindu Marriage Act, 1955–S.25-Hindu Adoptions and Maintenance Act, 1956–S.18–Held, Court cannot grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other-Code of Criminal Procedure 1973, s. 125.

Interpretation of Statutes-Hindu Marriage Act. 1955-S. 25- Hindu Adoptions and Maintenance Act, 1956-S. 18-Held, where both statutes codified and clear on their subjects, liberality of interpretation cannot permit interchangeabil- ity so as to destroy distinction.
HEADNOTE:

The parties were married in 1972 in Punjab. In 1985, a petition for divorce by mutual consent was filed in court at Amritsar The appellant-wife alleged that she was not a consenting party, and the petition was dismissed in 1987 following an agreement on the basis of which she would be put back in the matrimonial home. However, barely three months later, the respondent husband filed a regular petition for divorce at Ghaziabad inter alia alleging adultery against his wife. The appellant-wife refuted the charge. The Court granted her maintenance pendente lite at Rs. 1,000 p.m. The husband not paving this amount, the divorce proceedings stand stayed.

On 22nd March, 1990 the appellant moved the District judge, Amritsar and was granted Rs. 6,000as litigation expenses and Rs. 2,000as maintenance pendente lite from the date of application under S. 24. She also claimed permanent alimony and maintenance under S. 25 of the Hindu Marriage Act, 1955.

On appeal, the High Court held that an application under S.

25 was not 955 maintainable as the matrimonial court at amritsar had not passed any decree for restitution of conjugal rights, judicial separation, nullity or divorce. Sequelly it quashed the order under S. 24 of the Act.

Dismissing the appeal, this Court

HELD:The right of permanent maintenance in favour of the husband or the wife is dependent (in the Court passing a degree of the kind envisaged under Ss. 9to 14 of the Act.

In (other words, without the marital status being affected or disrupted by the matrimonial court under the Hindu Marriage Act the claim (of permanent alimony was not to be valid as ancilliary or incidental to such affectation or disruption.

Kadia Martial Purshotham v. Kadia Lilavati Gokaldas AIR 1961 Guj 202; Shantaram Gopalshet Narkar v. Hirabai, AIR 1962 Bom 27 Minarani Majumdar v. Dasarath Majumdar AIR 1963 Cal 428;

Shantaram Dinkar Karnik v. Malti Shantaram Karnik AIR 1964 Bom 83; Akasam Chinna Babu v.Akasam Parbati, AIR 1967 Ori 163; Gurcharan Kaur v. Ram Chand, AIR 1979 P & H 206;

Darshan Singh v. Mst. Daso., AIR 1980 Raj 102; Smt.

Sushama v. Satish Chander, AIR 1984 Del 1; Vinod Chandra Sharma v. Smt. Rajesh Pathak, AIR 1988 All 150 and Ranganatham v. Shyamala AIR 1990 Mad 1, affirmed.

Smt. Swaran Lata v.Sukhvinder Kumar (1986) 1 Hindu LR 363;

Sadanand Sahadeo Rawool v. Sulochana Sadanand Rawool, AIR 1989 Bom 220; Surendra Singh Chauhan v. Mamta Chauhan, 11 1990 Divorce & Matrimonial Cases 208; Modilal kalaramji Jain v. Lakshmi Modilal Jain AlR 1991 Bom 440; and Shilla Jagannadha Prasad v. Smt. Shilla Lalitha Kumari 1988 Hindu LR 26, overruled.

Durga Das v. Smt. Tara Rani, AIR & H 141, referred to.

2.A Court intervening under the Hindu Marriage Act undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at the juncture when the marital status is affected or disrupted. It also retains the power subsequently to be invoked on application by a party entitled to relief. A nd such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant.

3.While sustaining her marriage and preserving her marital status, a Hindu wife’s claim to maintenance is codified is S.18 of the Hindu Adoptions 956 and Maintenance Act, 1956 and must necessarily be agitated thereunder.

4.The court is not at liberty to grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter-changeability cannot be permitted so as to destroy the distinction on the subject of maintenance.

Carew, & Co. v. Union of India [1975] 2 SCC 791 and Motor Owners’ Insurance Co. Ltd. v. Jadavjit Keshavji Modi [1981] 4 SCC 660, referred to.

5.When distinctive claims are covered distinctly under two different statutes, choosing of one forum or the other, are not mere procedural technicalities or irregularities. These are matters which go to the root of the jurisdiction. The matrimonial court, a court of special jurisdiction. is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree which implies that unless it goes onwards, Moves or leads through, to affect or disrupt the marital status between the parties.

By rejecting a claim, the matrimonial court does make an appealable decree. in terms of section 28, but neither affects nor disrupts the marriage. It certainly does not pass a decree in terms of section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or to take away any legal character or status.
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2653-54 of 1991.

From the Judgment and Order dated 15.2.91 of the Punjab and Haryana High Court in Civil Revision Nos. 2998 and 2919 of 1990.

D.V. Sehgal and N.K. Aggarwal for the Appellant.

G.L, Saghi, P.P. Tripathi and Suchinto Chatterji for the Respondent.

The Judgment of the Court was delivered by PUNCHHI, J. The point which requires determination in these two appeals, arising from a common judgment and order dated February 15, 1991 of a Division Bench of the Punjab and Haryana High Court at Chandigarh, in Civil Revision Nos.

2918 and 2919 of 1990 is, whether the payment of alimony is admissible 957 without the relationship between the spouses being terminated.

The wife-appellant was married to the husband-respondent on September 19,1972 at Amritsar, in the State of Punjab.

Three children were born from the wed lock and are at present living with their father. Out of them two are males, their respective years of birth being 1973 and 1980 and the third is a female born in the year 1976. On 28-8- 1985 a petition under section 13-B of Hindu Marriage Act, 1955 (hereafter referred to as the Act’) seeking divorce by mutual consent was received by the court of the Additional District Judge, Amritsar purported to have been failed jointly by the two spouses. It was stated therein that the parties had been living separately for over a year due to incompatibility of temperament and their effort to settle their differences amongst themselves, or with the aid of friends and relatives, had been futile. On receipt the petition was kept pending, as was the requirement of section 13-B of the Act. According to the wife she was not a consenting party to the filing of such petition at all. Her version was that the husband had duped her in obtaining her signatures on blank papers on a false pretext and in turn had employed those papers in the said petition for divorce.

On coming to know of the pendency of the petition, she immediately filed objections before the court, obstructing the grant of petition. The respective pleas of the parties were put to issue and evidence was led. According to the wife some understanding later was reached between the parties on the basis of which she was to be put back in the matrimonial home and thus the petition was got dismissed on 19-8-1987, on the basis of the joint statement of the parties before the Additional District Judge, Amritsar which was to the following effect:

“We agree that applications under sections 24 and 25 of Hindu Marriage Act may be dismissed.

We also agree that since the parties have not been able to make a joint statement within a period of six months of the original petition, the main petition under section 13B of the Hindu Marriage Act may be dismissed.

Otherwise too, the parties to the marriage do not want to proceed with their main application under section 13 of the Hindu Marriage Act and the same be also dismissed and the parties may be left to bear their own costs.

On the basis of the above statement, the court passed the following order, the same day:

“The applicant and counsel for the parties have made their statements recorded separately the main petition under section 13 and 958 also applications under sections 24 and 25 of the Hindu- marriage Act are dismissed as withdrawn. The parties are left to bear their own costs. The file be consigned.” It appears that the dismissal of the petition under section 13-B led only to a temporary truce, and not peace as hoped.

Rehabilitation in the matrimonial home evaded the wife. The husband, who in the meantime had established his business at Ghazibad in Utter Pradesh, barely three months after the dismissal of the petition under section 13-B. approached the District Court at Ghaziabad in a regular petition for divorce under section 13 of the Act levelling, amongst others, allegations of adultery against the wife. To meet the offensive the wife refuted the charge of adultery and prayed to the Ghaziabad Court grant of maintenance pendente lite, which the Court fixed at Rs. 1000 per month. It appears since the husband had obstacled payment of maintenance pendente lite, divorce proceedings stand stayed under orders of the High Court of Allahabad, until the order of grant of maintenance pendente lite was obeyed. The matter thus stands stagnated there.

The wife then went in an offensive. She moved the court of Additional District Judge, Amritsar on 22-3-1990, under section 15 of the Hindu Marriage Act for the grant of permanent alimony on the plea that she was facing starvation, when her husband was a multi-millionaire, having cars, telephone facilities and other amenities of life.

Simultaneously she moved the court under section 24 of the Hindu Marriage Act for maintenance pendente lite and litigation expenses. After a grim contest between the parties the Additional District Judge, Amritsar on September 20, 1990 allowed the petition under section 24 of the Act granting her a sum of Rs. 6000 as litigation expenses and Rs. 2000 per month as maintenance pendente lite, from the date of application. The husband challenged the said order of grant in revision before the High Court of Punjab and Haryana at Chandigarh. The wife too approached the High Court in revision seeking enhancement of sums under both counts. Both the revision petitions being referred to a larger bench were disposed of by the common judgment under appeal sustaining the objection of the husband that an application under section 25 of the Act was, in the facts and circumstances, not maintainable; the Matrimonial Court at Amritsar, in the earlier litigation, having not passed any decree of the variables known as Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, or Divorce, so as to quash proceedings under section 25 and sequally quashing the order under section 24 of the Act granting litigation expenses and maintenance pendente lite.

Hence these appeals.

959 Section 25 of the Act, as it now stands, after amendment by Act 68 of 1976 is reproduced hereunder:

“25 PERMANENT ALIMONY AND MAINTENANCE (1) Any court exercising jurisdiction under this Act may, at the time of passing- any decree or at any time subsequent thereto, on application made to it for purpose by either the wife o r the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such cross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant, [the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2)If the court is satisfied that there is, a change in the circumstances of either party at any time after it has made an order under sub- section (1), it may at the instance of either party, very, modify or rescind any such order in such manner as the court may deem just.

(3)If the court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, [it may at the instance of the other party very, modify or rescind any such order in such manner as the court may deem just].” It is relevant to reproduce Section 28 as well:

“28 APPEAL FROM DECREES AND ORDERS- (1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section (3) be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.

(2) Orders made by the court in any proceeding under this Act, under 960 section 25 or Section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a period of thirty days from the date of the decree or order.” Right from its inception, at the unamended stage, the words “at the time of passing any decree or any time subsequent thereto” posed difficulty. The majority of the High Courts in the country took the view that those words indicated that an order for permanent alimony or maintenance in favour of the wife or the husband could only be made when a decree is passed granting any substantive relief and not where the main petition itself is dismissed or withdrawn. It was also gathered that if no request for alimony was made at the time of passing the decree the same relief could be sought subsequently on an application. The relief of permanent alimony was deduced to be ancilliary or incidental to the substantive relief, and it was given to the party to whom such relief was due. The expression “any decree” was viewed to have been used having regard to the various kinds of decrees such as decree for Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, and Divorce, which could be passed either on contest or consent. Some of the High Courts also had occasion to distinguish between the expression “passing any decree” referred to in section 25 (1) with “decrees made” referred to in section 28 providing for appeals from decrees and orders made by the Court in any proceeding under the Act, and such decrees being appealable, as decrees of the Court made in exercise of its original civil jurisdiction. It led to the determination of the question whether the denial of relief under the Act, when making a decree in the sense appealable under section 28, could be it a decree passed within the meaning of Section 25 entitling the respective spouses to claim permanent alimony thereunder. On this question too there has been rife a difference of opinion.

A Division Bench of the Gujarat High Court in Kadia Harilal Purshottam v. Kadia Lilavati Gokaldas AIR [1961] Gujarat 202; ruled that the words “at the time of passing any decree or any time subsequent thereto” occurring in section 25 meant passing of any decrees of the kind referred to in the earlier provisions of the Act and not at the time of dismissing the petition for any relief provided in those 961 sections, or any time subsequent thereto. It was viewed that the expression “any decree” did not include an order of dismissal and that the passing of an order of dismissal of the petition could not be regarded as the passing of decree within the meaning of section 25. On that view a petition for permanent alimony preferred by the wife was dismissed when the petition of the husband for restitution of conjugal rights had been dismissed.

In Shantaram Gopalshet Narkar v. Hirabai, AIR [1962] Bombay 27 Vol. 49, a learned Single Judge of the Bombay High Court took the view that in order to confer jurisdiction upon the court to proceed under section 25(1) there must be a decree as contemplated under the Hindu Marriage Act and one of the decrees can. be under section 10(1) (B). And when the petition was allowed to be withdrawn, there was no decree passed in favour of the husband, and if there was no decree, the court had no jurisdiction to pass any order granting permanent alimony to the wife under section 25(1).

In Minarani Majumdar v. Dasarath Majumdar AIR [1963] Calcutta 428 Vol. 50, a Division Bench of the Calcutta High Court ruled that an order dismissing a petition by the husband for divorce under section 13 is not a decree within the meaning of section 25 and as such when no substantive relief is granted under sections 9 to 14, there is no passing of a decree as contemplated by section 25 and hence no jurisdiction to make an order for maintenance under the said section. Harilal’s case (supra) of the Gujarat High Court was noticed and relied upon.

A learned Single Judge of the Bombay High Court in Shantaram Dinkar Karnik v. Malti Shantaram Karnik, AIR [1964] Bombay 83 – vol. 51 relying on the earlier decision of that court in Shantaram Gopalshet’s case (supra) and kadia Hiralal’s case (supra) reaffirmed the view that the expression “passing of any decree” only referred to passing of any decrees provided for in section 9 to 13 of the Act, even though technically speaking dismissal of a suit or a petition may be called a decree but not for the purpose of section 25 confering jurisdiction on the Matrimonial Court to grant permanent alimony.

A Division Bench of the Orissa High Court in Akasam Chinna Babu v. Akasam Parbati & Another AIR [1967] Orissa 163 – Vol. 54 denied the relief of permanent alimony when the petition for divorce of the husband had been dismissed. The views of the Bombay High Court and the, Gujarat High Court above referred to were taken in aid to get to that view.

A three-Judge full bench of the Punjab and Haryana High Court in Durga 962 as v. Smt. Tara Rani,AIR (1971) Punjab and Haryana 141 – Vol. 58, in a different context, while determining the question whether a party to a decree or divorce could apply for maintenance under sub-section (1) of section 25 of the Act after which decree has been granted, ruled that the proceedings for grant of permanent alimony were incidental to the main proceeding and as such an application for alimony could be made even after the grant of the decree for divorce.

A learned Single Judge of that Court, however, in Gurcharan Kaur v. Ram chand AIR 1979 Punjab and Haryana 206 Vol. 66 even while relying, on the full bench decision afore- referred went on to deny permanent alimony to the wife hose claim for decree of Nullity of Marriage stood dismissed and on that basis the petition for alimony was held not maintainable.

In Darshan Singh vs. Mst. Daso AIR 1980 Rajasthan 102 – Vol. 67 a learned single Judge of the Rajasthan High Court made a distinction between the expression “passing any decree” occurring in section 25 and the expression decree made” under section 28. He viewed that the former expression meant granting any relief of the nature stated in sections 9 to 13 while the later meant granting or refusing the relief. In other words, it meant that passing of any decree as to mean granting any relief, and the making of any decree was to mean granting or refusing any relief.

A Division Bench of the Delhi High court too in Smt. Sushma v. Shri Satish Chander AIR 1984 Delhi 1 Vol. 71 taking stock of the above-referred to views of the Rajasthan, Orissa.

Bombay, Calcutta and Gujarat High Courts affirmedly took the view that the passing of the decree in section 25 meant the passing of a decree of divorce, Nullity, Restitution of Conjugal Rights or Judicial Separation and not the passing of a decree dismissing the petition. It was further held that if the petition fails then no decree is passed, i.e., the decree is denied to the applicant and therefore alimony cannot be granted in a case where a decree is refused because in such a case the marriage subsists. The word “decree” in matrimonial cases was held to have been used in a special sense different from that in which it is used in the Civil Procedure Code.

Following Delhi High Court’s decision in Sushma’s case (supra), a learned Single Judge of the Allahabad High Court in Vinod Chandra Sharma v. Smt. Rajesh Pathak AIR 1988 Allahahad 150 – Vol. 75 opined that when an application for divorce is dismissed, there is no decree passed and obviously therefore alimony cannot he granted because in such a case the marriage subsists.

963 A learned Single Judge of the Madras High Court in Ranganatham v. Shyamla AIR 1990 Madras 1- Vol. 77 too following the above decisions held that the existence of any of the decrees referred to in sections 9 to 13 is a condition precedent to the exercise of jurisdiction under section 25 (1) of the Act and the granting of ancilliary relief for permanent alimony and maintenance, when the main petition was dismissed, was not permissible.

A divergent view, however, was struck by a learned Single Judge of the Punjab and Haryana High Court in Smt. Swaran Lata v. Sukhvinder Kumar(1986) 1 Hindu Law Reporter 363 taking the view that when the rights of the parties stand determined conclusively with regard to matters in controversy, irrespective as to whether relief is granted or not, it culminates in a decree and on the basis of that decree, the wife would be entitled to claim maintenance or permanent alimony under section 25 of the Act. Not only was on such interpretation of sections 25 and 28 the view taken but liberality of interpretation was injected to justify the view. It was expressed that when the right of the wife to maintenance was assured under section 125 of the Code of Criminal Procedure, 1973 and section 18 of the Hindu Adoptions and Maintenance Act, 1956 and when that right of the wife was not being disputed, the court, in order to avoid multiplicity of proceedings could give effect to that right, wherever possible, in a proceeding under section 25 of the Act itself. There the objection of the husband to the jurisdiction was termed as technical and the maintainability of claim under section 25 was upheld.

A learned Single Judge of the Bombay High Court in Sadanand Sahadeo Rawool v. Sulochana Sadanand Rawool, AIR 1989 Bombay 220- Vol. 76 also took a similar view and based his decision on “necessity of the times” expressing that technicalities should not be allowed to away any court. In the situation, the dismissal of petition for divorce was held to be no bar to grant maintenance under section 25 to the successful spouse.

Then in Surendra Singh Chaudan v. Mamta Chauhan II(1990) Divorce & Matrimonial Cases 208 a learned Single Judge of the Madhya Pradesh High Court taking the view that the dismissal of a petition amounts to passing of a decree for the purposes of Section 25 of the Act held that claim for permanent alimony was maintainable. The learned Judge ruled that there appeared to be no justification for curtailing the ambit of the words to go on to hold that a decree is not a “decree” for the purposes of section 25 of the Act, though a “decree” for the purposes of section 28 of the Act. Here again the intention of the legislature was gathered avoiding multiplicity of proceedings. so that every dispute between the parties, particularly connected with matters like maintenance etc. should be settled in the 964 same proceedings.

A learned Single Judge of the Bombay High Court in Modilal Kalaramji Jain v. Lakshmi Modilal Jain AIR 1991 Bombay 440 – Vol. 78 omitting the word “passing” from the expression, interpreted the expression “any decree” to include an order refusing to grant matrimonial relief and on that basis held adjudication of claim of permanent maintenance to be within the jurisdiction of the matrimonial court.

Same is the view of the Andhra Pradesh High Court in Shilla Jagannadha Prasad alias Ram v. Smt. Shilla Lalitha Kumari [1988] 1 Hindu Law Reporter 26 and some other cases which need not be multiplied.

The preamble to the Hindu Marriage Act suggests that it is an Act to amend and codify the law relating to marriage among Hindus. Though it speaks only of the law relating to marriage, yet the Act itself lays down rules relating to the solemnization and requirements of a valid Hindu marriage as well as Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, Divorce, legitimacy of children and other allied matters. Where the statute expressly codifies the law, the court as a general rule, is not at liberty to go outside the law so created, just on the basis that before its enactment another law prevailed. Now the other law in the context which prevailed prior to that was the unmodified Hindu law on the subject. Prior to the year 1955 or 1956 maintenance could be claimed by a Hindu wife through court intervention and with the aid of the case law developed.

Now with effect from December 21, 1956, the Hindu Adoptions and Maintenance Act is in force and that too in a codified form. Its preamble too suggests that it is an Act to amend and codify the law relating to adoptions and maintenance among Hindus. Section 18 (1) of the Hindu Adoptions and Maintenance Act, 1956 entitles a Hindu wife to claim maintenance from her husband during her life-time. Sub- section (2) of section 18 grants her the right to live separately, without forfeiting her claim to maintenance, if he is guilty of any of the misbehaviours enumerated therein or on account of his being in one of objectionable conditions as mentioned therein. So while sustaining her marriage and preserving her marital status, the wife is entitled to claim maintenance from her husband. On the other hand, under the Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is durated on the pendency of a litigation of the kind envisaged under sections 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, 965 with or without her consent. Thus when her marital status is to be affected or disrupted the court does so by passing a decree for or against her. On or at the time of the happening of that event, the court being siezen of the matter, invokes its ancilliary or incidental power to grant permanent alimony. Not only that, the court retains the jurisdiction at subsequent stages to fulfil this incidental or ancilliary obligation when moved by an application on that behalf by a party entitled to relief. The court further retains the power to chance or alter the order in view of the changed circumstances. Thus the whole exercise is within the gammit of a diseased of a broken marriage.

And in order to avoid conflict of perceptions the legislature while codifying the Hindu ‘Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the court passing a decree of the kind as envisaged under sections 9 to 14 of the Act. In other words without the marital status being affected or disrupted by the matrimonial court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancilliary or incidental to such affectation or disruption. The wife’s claim to maintenance necessarily has then to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative measure later in point of time than the Hindu Marriage Act, 1955, though part of the same socio-legal scheme revolutionizing the law applicable to Hindus.

Section 41 of the Evidence Act inter alia provides that a final judgment, order or decree of a competent court in the exercise of matrimonial jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to such character, is relevant. And that such judgment, order or decree is conclusive proof as to the conferral, accrual,or taking away of such. legal character from a point of time as declared by the court. Such judgments are known as judgments in rem, binding the whole world. But the judgment of that kind must have done something positive, onwards. This provision is indicative of the quality of matrimonial jurisdiction.

We have thus, in this light, no hesitation in coming to the view that when by court intervention under the Hindu Marriage Act, affection or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant. In contrast, without affectation or disruption of the marital status, a Hindu wife sustaining` that status can live in separation from her husband, and 966 whether she is living in that state or not, her claim to maintenance stands preserved in codification under section 18 (1) of the Hindu Adoptions and Maintenance Act. The court is not at liberty to grant relief of maintenance simplicitor obtainable under one Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter-changeability cannot be permitted so as to destroy the distinction on the subject of maintenance.

Relief to the wife may also be due under section 125 of the Code of Criminal Procedure whereunder an order of maintenance can be granted after contest, and an order of interim maintenance can be made at the outset, without much contest. This provision however has two peculiar features:

(i) the provision applies to all and not only to Hindus;

and (ii) maintenance allowance cannot exceed a sum of Rs. 500 per mensem.

But this is a measure in the alternative to provide destitute wives.

This court has ruled that if the language used in a statute can be construed widely so as to salvage the remedial intendment, the court must adopt it. Of course, if the language of a statute does not admit of the construction sought, wishful thinking is no substitute, and then, not the court but the legislature is to blame for enacting a damp squib statute. These are the observations of V.K. Krishna Iyer, J. in Carew and Company v. Union of India [1975] 2 SCC 791 at pages 803-804. Towards interpreting statutes, the court must endeavour to see its legislative intendment.

Where the language is ambiguous or capable of more than one meaning, the court must sympathetically and imaginatively discover the true purpose and object of the Provision by filling gaps, clearing doubts, and mitigating hardships, harshness or unfair consequences. See Motor Owners’ Insurance Company, Limited vs. Jadavji Keshavji Modi and others [1981] 4 SCC 660 paras 14. 15 and 16. These principles were pressed into service by learned counsel for the appellant contending that if the claim of the wife for maintenance was otherwise justified on fact and law, the procedures and the for a should not stand in her way and let her cash on her claim over-ruling all objections. It was asserted that the Amritsar court had jurisdiction to grant relief, as asked for, because once upon a time it was seisin of the petition for dissolution of marriage by mutual consent, though such petition was withdrawn.

On the afore-analysis and distinction drawn between the fora and perceptives, 967 it is difficult to come to the view that a claim which is ancilliary or incidental in a matrimonial court under the Hindu Marriage Act could be tried as an original claim in that court; a claim which may for the moment be assumed as valid, otherwise agitable in the civil court under the Hindu Adoptions and Maintenance Act, 1956. As said before, these two enactments keeping apart, the remaining two, i.e., Hindu Succession Act, 1956 and Hindu Minority and and Guardianship Act, 1956 are a package of enactments, being part of one socio-legal scheme applicable to Hindus. When distinctive claims are covered distinctly under two different statutes and agitable in the courts conceived of thereunder, it is difficult to sustain the plea that when a claim is otherwise valid, choosing of one forum or the other should be of no consequence. These are not mere procedural technicalities or irregularities, as termed by one line of reasoning by some of the High Courts. These are matters which go to the root of the jurisdiction. The matrimonial court, a court of special jurisdiction, is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree, which implies that unless it goes onwards, moves or leads through, to affect or disrupt the marital status between the parties. By rejecting a claim, the matrimonial court does make an appealable degree in terms of section 28, but neither affects nor disrupts the marriage.

It certainly does not pass a decree in terms of section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or take away any legal character or status. Like a surgeon, the matrimonial court, if operating, assumes the obligation of the post operatives, and when not, leaves the patient to the physician.

On the afore analysis we have been led to the conclusion that the step of the wife to move the court of Additional District Judge, Amritsar for (,rant of maintenance under section 25 of the Hindu Marriage Act was ill-advised. The judgment of the High Court under appeal could be no other than the one that it was in the present state of law and the facts and circumstances. It is still open to the wife to stake her claim to maintenance in other fora. The judgments of the High Courts earlier quoted, and others which have been left out, which are not in line with our view are over- ruled. The earlier and predominant view was the correct one and the later an aberration; something unfortunate from the precedential point of view. The appeals thus inevitably have to and are hereby dismissed, but without any order as to costs.

Before we part with this judgment, we need to mention that while this judgment was reserved, an Interlocutory Application was received by the Registry, which unnumbered Interlocutory Application was duly transmitted to us. It is for directing the appellant to pay arrears of maintenance.While granting leave 968 this Court on 8th July, 1991 had ordered that during the pendency of the appeal, but without prejudice to the respective stands of the spouses, the husband shall pay a sum of Rs. 1000 per mensem by way of maintenance to the wife month to month by bank draft. In the Interlocutory Application there is an allegation that this Court’s orders have not been complied with. Let notice on the application separately be issued to the respondent returnable within six weeks to show cause why payment of arrears of maintenance be not secured to the wife forthwith.

U.R. Appeal dismissed.

 

 

Man gets Custody of minor children becoz of Extra-marital relationship of Wife- DELHI COURT

IN THE COURT OF SH. REETESH SINGH,

ADDITIONAL DISTRICT JUDGE-01 (NE),

KARKARDOOMA COURTS, DELHI

Guardianship Petition no. 25/09

Date of Institution of case:  19.08.2009

Date of reserving for order/judgment:  11.11.2011

Date of Judgment / order:  21.12.2011

Unique ID no.  :  02402C0239292009

IN THE MATTER OF:-

Harjinder Singh Mehindru,

S/o Late Sh. Des Raj,

R/o Village Kale-Ghanupur,

Chhehratrra, Amritsar, Punjab.

……….Petitioner.

Versus

 

Smt. Renu,

W/o Sh. Harjinder Singh Mehindru,

D/o Sh. Dalip Kumar Singh,

R/o Kalandhar Colony, I-Pocket,

Near Gauri Shanker Mandir,

Purani Seemapuri,DilshadGarden,

New Delhi-95.

…….Respondent.

Judgment:

1. This petition has been filed under Section 25 of Guardian and Wards Act,

1890 (hereinafter to be referred to as the said Act) by which petitioner has prayed for orders to direct the respondent to hand over the permanent custody of Master Karan Singh and Ms. Dimple, the minor children of the parties.

2.  It is averred in the petition that the petitioner was married with the respondent on 20.11.02 according to Sikh rites and ceremonies at Mumbai. Out of the wedlock a son Master Karan was born on 20.4.04 and a daughter Ms. Dimple was born on 16.12.08. It is averred in the petition that the conduct of the respondent as wife and mother was not good. It is averred that the respondent did not make any effort to establish a healthy matrimonial relationship with the petitioner and was constantly indulging in quarrels and disputes. It is averred that the respondent at no point of time looked after the welfare of the petitioner or the minor children. It is averred that atrocities committed by the respondent had a serious impact on the life and health of the petitioner.

3. It is averred that after getting married, parties resided for some time in Mumbai and on 8.4.04 shifted toAmritsar,Punjabalong their son Master Karan who was born by then. It is averred that reason for the change was that Smt. Kiran Chauhan sister of the respondent was working as a “bar dancer” and she was trying to persuade the respondent to get into the same profession. Petitioner in order to save the reputation and dignity of the family shifted toAmritsarwhere his mother was residing. It is averred that the petitioner was working in the marketing field and was being able to provide well for the entire family but the respondent consistently indulged in fights and petty disputes using abusive and filthy language against the mother of the petitioner and petitioner. In order to save his matrimonial relationship and to protect his son from exposure to these constant fights, the petitioner shifted to took rented accommodation and started residing separately from his mother.

4. It is averred that even after shifting to the rented accommodation the respondent remained quarrelsome and on 2.9.05 the mother and sister of the respondent came to Amritsar and took away the respondent along with son Master Karan in the absence of the petitioner. Petitioner filed an application under Section 9 of Hindu Marriage Act, 1955 before the Court of Sh. Varinder Aggarwal, CJ (SD), Amritsar which petition was allowed in favour of the petitioner on 13.5.06. It is further averred that after obtaining the said order, petitioner went to the residence of the respondent where a compromise was arrived at and the respondent agreed to come back to the society of the petitioner at Amritsar. It is averred that for some time behavior of the respondent was cordial and on 16.12.08 a second child was born to the parties namely daughter Ms. Dimple. It is averred that thereafter once again respondent starting indulging in constant fights and on 2.8.09 respondent collected all her articles and stated that she would not reside at Amritsar anymore and would shift to Delhi permanently to reside with her mother. It is averred that petitioner requested the respondent to stay back. The respondent went to the local police station at Chheharta and made a false complaint against him. It is averred that after the intervention of respectable persons respondent came back to the matrimonial home. It is averred that thereafter the respondent again started creating trouble and threatened the petitioner that she would poison the children and kill the petitioner.

5. It is averred that on 5.8.09 petitioner wrote letters to various police authorities regarding these threats. On the same date the respondent mixed some intoxicant in his tea and served the same to the petitioner who after drinking the same fell unconscious. When he woke up he did not find the respondent or the minor children at home. He also found that Rs.10,000/- in cash and his mobile phone were missing.

Petitioner reported the matter to the local police station on 5.8.09 but no action has been taken.

6. It is averred that upon inquiry he came to know that respondent had taken their children to her mother at Delhi. It is averred that the parents of the respondent are alcoholic and are a bad influence. It is averred that sisters of the respondent being engaged in the trade of bar dancing were of bad character. It is averred that respondent did not have any sufficient source of income to take care of the minor children. It is averred that on the date of taking away children, Master Karan was studying in first standard  in Jeewan Jyoti Public School,Amritsar. It is averred that the petitioner has come to know that the respondent is intending to remarry with her widower brother in law and by doing so the interest and welfare of the minor children would suffer. It is averred that the respondent was suffering from some mental disorder when she was residing at Amritsar.

7. It may be noted that during the pendency of this petition, petitioner moved an application for amendment of the petition seeking incorporation of paras 11-A to 11-I in the petition. The said application was allowed by order dated 4.9.10 permitting the petitioner to incorporate the said paras except para 11-F. Petitioner thereafter filed an amended petition to which an amended written statement was filed by the respondent.

8. In the amended petition portion of the petition, it is averred that the respondent was suffering from some mental disorder for which she received medical treatment atAmritsar. It is averred that on 31.10.09 mother of the respondent Smt. Meena sent a letter to the petitioner complaining that the respondent had fought with her and that the respondent used to leave the children unattended with her brother Sh. Tulsiram who was mentally ill. It is averred that on 12.11.09 Smt. Meena made a complaint to the Commissioner of Police, DCP N/E,Delhiand SHO of PS Seemapuri Delhi against the respondent. It is averred that petitioner had filed a petition under Section 13 of HMA Act 1955 seeking decree for divorce against the respondent which was decreed by the court of Sh. Karnail Singh Ahhi, ADJ,Amritsar on 6.3.10. It is averred that the respondent has got the minor child Master Karan admitted in lower KG class instead of first standard although Master Karan was studying in class one atAmritsarat the time the respondent took away the minor children from the petitioner. It is averred that Master Karan has therefore lost three years of his education.

9. Written statement to the petition has been filed by the respondent in which she has denied the allegations made by the petitioner. In the reply respondent has stated that the respondent was residing separately at a rented  accommodation near the house of her parents with both the minor children and that she was working a in a ‘private job’ to provide for herself and her children. Respondent has denied allegations of the petitioner that she was quarrelsome in nature or that she committed any atrocities upon the petitioner. It is averred that the respondent and the petitioner went to Mumbai after marriage looking for employment and the petitioner worked as a waiter for some time before coming back to Amritsar. It is averred that the petitioner was not able to survive in a metropolitan city and came back to Punjab where his mother along with sister of the petitioner was residing. It is averred that the petitioner constantly fought with the respondent and even beat up the respondent whenever she demanded money from the petitioner. Respondent has denied that she ever deserted the society of the petitioner. Respondent has denied that she ever threatened to leave the petitioner to stay permanently at Delhi. It is stated that on 3.8.09 at about 9.00PM petitioner’s sister came with his friends and misbehaved with the respondent. It is averred that the petitioner has bad company and since father of the petitioner died at an early age petitioner never performed his duties properly. Respondent has denied that her parents are of bad character or her sister is engaged in profession of bar dancing at Mumbai.

Respondent has denied that she has been indulging in acts which are not in the welfare and interest of the minor children. Respondent has denied that she is going to get married with her widower brother in law. It is averred that  Petitioner has approached mother of the respondent and paid her Rs.20,000/- to falsely depose in favour of the petitioner. Respondent has denied averments of the petitioner that he is having his own family business or that he had  sufficient means to look after minor children. Respondent has averred that it was the inability of the petitioner to maintain the respondent and the minor children which was the main reason for dispute between the parties. It is averred that respondent is earning Rs.70-80/- per day by doing private job. Respondent has denied that interest and welfare of the children require their custody to be handed over to the petitioner.

10. On the pleadings of the parties by order dated 27.11.10 following issues were framed:

1. Whether it is in the interest and for the welfare of the children namely Master Karan and Baby Dimple that their permanent custody is given to the petitioner? OPP

2. Relief.

11. Petitioner examined himself as PW1. He tendered his evidence by way of affidavit Ex.PW1/X. He proved the following documents on record:

A. Judgment and decree dated 13.5.06 passed by the court of Sh.

Varinder Aggarwal, CJ (SD),Amritsarunder Section 9 of HMAct as EX.PW1/1.

B. Fee slips of Jeewan Jyoti Public  School, Chheharta at Amritsar as EX.PW1/2 (colly).

C.  Mark sheet ofJeewanJyotiPublic School, Chheharta at Amritsar as EX.PW1/3 (colly).

D. Letter dated 31.10.09 written by Smt. Meena mother of respondent as EX.PW1/4.

E. Copy of judgment and decree dated 6.3.10 passed by the court of Sh. Karnail Singh, ADJ,Amritsarin HMA No.61/09 as EX.PW1/5.

12. Petitioner then examined his mother Smt. Kulwant Kaur as PW2 who tendered her evidence by way of affidavit Ex.PW2/X. Petitioner examined Sh. Virender Singh Clerk of Standard Guest House as PW3 and Smt. Meena mother of respondent as PW4 who tendered her evidence by way of affidavit Ex.PW4/X. She proved the following documents:

A. Letter dated 31.10.09 written by Meena Singh to petitioner as EX.PW4/A.

B. Telegram dated 12.11.09 sent by Smt. Meena Singh to police authorities as Ex.PW4/B.

C. Complaint to the Commissioner of Police dated 14.11.09 by Smt. Meena as Ex.PW4/C.

Thereafter petitioner closed his evidence on 18.3.11. 13. Respondent on her part examined herself as RW1. She tendered her evidence by way of affidavit Ex.RW1/A. She also examined Smt. Meera wife of Baburam who tendered her evidence by way of affidavit Ex.RW2/A. Thereafter the respondent closed her evidence on 26.8.11.

14. I have heard the ld. Counsel for parties and perused the record. My issue

wise findings are as under:

Issue No.1.

15. Ld. Counsel for petitioner has argued that conduct of the respondent which is evident from the evidence on record clearly proves that it is not in the interest and welfare of the minor children that their custody be retained by respondent. He has argued that the petitioner has made all efforts to ensure peace at the matrimonial home and tried his best to satisfy the respondent but it was the respondent who never wanted to reside with the petitioner and constantly quarreled with him.

Counsel submitted that respondent left the society of the petitioner several times forcing the petitioner to move the matrimonial court at Amritsar seeking restitution of his conjugal rights. Even after gaining an order in his favour, the respondent did not honour the same. She briefly resided with the petitioner and thereafter left the matrimonial home again and shifted toDelhipermanently with the minor children.

Counsel for petitioner argued that the respondent is a bad influence on the minor children as the respondent indulged in an extra marital affair and eventually married the said person. Counsel argued that the respondent was having an affair with one Sh. Avinash Saxena who was earlier married to a sister of the respondent. After the death of the sister of the respondent, respondent had illegitimate affair with Sh. Avinash Saxena and even resided with Sh. Avinash Saxena at Standard Guest House,Delhias his wife along with both her minor children even though at that time respondent was married to the petitioner. Respondent stayed for four days with Sh. Avinash Saxena in that hotel with effect from 30.11.09 without even thinking as to what influence this action of hers would have on the minor children. Counsel has submitted that the respondent has admitted in her cross examination that she was known to  Sh. Avinash Saxena and that eventually after parties got divorced she married him. Counsel for petitioner has argued that respondent in her cross examination has also admitted that there are chances of respondent having children with  Sh. Avinash Saxena and if same happens the minor children who are born to the respondent from the petitioner would most certainly be neglected.

16. Counsel for petitioner has argued that respondent was residing inDelhiin a slum cluster (jhuggi). She had no source of income. The premises in which respondent is residing consists of only one room where respondent cooks, eats, sleeps and bathes. On the other hand the petitioner is residing at his own home in Amritsarand is earning his livelihood from business conducted from his own house. Counsel further argued that the education of the children has suffered at the hands of the respondent who has gotten their son Karan admitted in lower kindergarten although in 2009 he was studying in class one. Petitioner was in a much better position to look after the interest and welfare of the minor children.

17. Counsel for petitioner argued the mother of the respondent has appeared as witness as PW4 on behalf petitioner. She has deposed that the respondent was not fit to look after the minor children as she used to leave the minor children in the custody of her brother who was mentally challenged. Counsel submitted that looking into the totality of the entire environment in which the respondent was keeping the minor children, it was not in their interest and welfare that the respondent retained their custody.

18. Counsel for the respondent on the other hand argued that the minor  children were very young. Currently Master Karan is aged about 7 years and daughter Ms. Dimple is aged about 3 years. She argued that in the absence of any other family member in the household of the petitioner, the interest and welfare of the minor children would suffer. She further argued that Smt. Meera PW4 mother of the respondent was involved in illicit liquor trade and her evidence should not be considered by this court. She argued that petitioner has not proved any source of income to show that he was earning sufficiently to take care of the minor children.

19. Petitioner has examined himself as PW1 and deposed by way of affidavit. His affidavit is on the lines of the averments made in his petition. Petitioner has duly proved judgment dated 13.5.06 by which his petition under Section 9 of the HM Act 1955 was allowed by the concerned court by which directions were issued to the respondent to return to the society of the petitioner. The said document is Ex.PW1/1. Perusal of the same reveals that it was passed ex-parte. Petitioner has also proved on record the decree dated 6.3.10 by which decree of divorce was granted in favour of the petitioner and against the respondent by the concerned court atAmritsaras Ex.PW1/5. The said decree is also ex-parte. Petitioner has proved on record fee slips issued byJeewanJyotiSchoolas Ex.PW1/1 (colly). The same pertains to admission and tuition fee in respect of Master Karan in Class one of the school.

Petitioner has proved marksheet of Master Karan fromJeewanJyotiSchool, Amritsaras Ex.PW1/3 (colly). The same shows that Master Karan was studying in class one in that school for the session 2008-09. These documents have not been denied or challenged by the respondent. Inference which can be drawn from the same is that in the year 2008-09 Master Karan, minor children was studying in kindergarten and was then admitted in first standard of that school in the year 2009.

20. Further that the respondent left matrimonial home of the petitioner for  which the petitioner filed an application of restitution of conjugal rights which was granted.

Thereafter again there was discord between the parties forcing the petitioner to move the matrimonial court seeking the decree of divorce which was granted. While the order granting restitution of conjugal rights is dated 13.5.06, order granting decree for divorce is dated 6.3.10. Inference which can be drawn is that the matrimonial relationship between the parties were never cordial. Intermittently the they may have had a few good times but mostly parties were not having a smooth relationship.

21. Admittedly the parties were married to each other on 20.11.02 and had  one to Mumbai. They came back toAmritsar,Punjabat the village of the petitioner and tried to reside together. Whereas Master Karan was born on 20.4.04 while the parties were as still in Mumbai, Ms. Dimple was born on 16.12.08 when the parties were atAmritsar. In August 2009 the respondent left the society of the petitioner for Delhiwith the minor children and never returned. Since August 2009 both minor children are in the custody of the respondent. One of the main contentions of the petitioner was that the respondent indulged in an illegitimate affair with her brother in law Sh. Avinash Saxena and as such she would be a bad influence on the minor  children.

22. Petitioner has summoned Sh. Virender Singh, Clerk of Standard Guest House, 2047, Dr.S.C. Sain, Road, Fountain, Delhi-6 as PW3. This witness brought summoned record i.e. Entry register of Standard Guest House. This witness deposed that in the month of November, 2009 vide entry no.1411 dated 30.11.09 Sh. Avinash Saxena stayed at the guest house with his “family” Renu Saxena and two children. He proved the relevant point the entry register from Point A to Point A as Ex.PW3/A and also signatures of Sh. Avinash Saxena on the register at Point B. Perusal of Ex.PW3/A shows that on 30.11.09 an entry was made bearing no.1411 in  the name of  Sh. Avinash Saxena son of  Ashok Saxena with family Smt. Renu Saxena along with two children. Address of Avinash Saxena was mentioned as Andheri Kurla Road, Mumbai and reason for visit was stated to be tourism. Duration of stay was 4 days. This witness was cross examined by counsel for respondent. No suggestion has been given by the respondent that entries made in the register were incorrect. In an answer to question regarding definition of family, this witness has stated that family may include other members including sister in law. Entry no.1411 dated 30.11.09 in the register mentions the name of the respondent as Smt. Renu ‘Saxena’. The only inference that can be drawn by virtue of that entry is that it was represented by Sh. Avinash Saxena and the respondent to M/s Standard Guest House that they were husband and wife and that is why her name was entered as Smt. Renu Saxena.

23. Petitioner in his petition had averred in para 11 of his petition that he had come to know that respondent was planning to get married with her widower brother in law Sh. Avinash Saxena. In reply to para 11 the respondent has denied these averments. Respondent had examined herself as RW1. She had tendered her evidence by way of affidavit Ex.RW1/A. During the course of her cross examination dated 24.5.11 she has stated as under:

“It is correct that I have also remarried. I have married about 2/3 months back with Sh. Avinash Saxena. I will bring my marriage documents on the next date of hearing. Avinash Saxena is the same person who I used to go to meet in the Hotel Standard Guest House Chandni Chowk. Vol.  I was accompanied by my brother. (At this stage witness is shown Ex.PW3/A confronted with portion point A to Point B). It is wrong to suggest that only four people namely Avinash Saxena, myself, and two children were present in Standard Guest House on 30.11.09 and my brother was not there. It is wrong to suggest that I am falsely claiming today that I was accompanied with my brother in Standard Guest House. It is correct that at that time I was not married to Sh. Avinash Saxena. It is correct that Avinash Saxena is my brother in law. It is also correct that my sister Savitri who was married to Avinash Saxena has already expired. It is correct that Avinash Saxena is sending money to meet my expenses whenever required.”

24. From the above deposition of the respondent it is apparent that the respondent has remarried in February-March 2011 with Sh. Avinash Saxena. Respondent admitted that Sh. Avinash Saxena was earlier married to her sister Smt. Savitri who had expired. Respondent admitted that Sh. Avinash Saxena is the same person who she used to go to meet in hotel Standard Guest House at Chandni Chowk,Delhi. Voluntarily respondent has stated that she had been accompanied with her brother. Respondent has admitted that at that time when she resided in Standard Guest House on 30.11.09 along with both her children she was not married to Sh. Avinash Saxena.

25. Date of decree of divorce of the parties is 6.3.10. This petition has been filed by the petitioner on 19.8.09. On that date in para 11 of his original un-amended petition, petitioner had averred that the respondent was planning to get married with her widower brother in law Sh. Avinash Saxena. In reply to para 11 of the petition respondent had denied these averment. From the statements made by the respondent in her cross examination, the averments made by the petitioner stand proved. It also stands proved that respondent resided for 4 days on 30.11.09 with Sh. Avinash Saxena and along with both minor children in Standard Guest House. At that time respondent was not married with Sh. Avinash Saxena and marriage between the petitioner and the respondent was also subsisting. On that date Master Karan minor child would have been aged about 5 years and 9 months and Ms. Dimple would have been aged about 8 months. Even if Ms. Dimple being about 8 months would not have been able to understand the implications of the actions of her mother, Master Karan who was almost 6 years old by that time would most certainly have had some questions in his mind. He must have wondered as to who this person by the name of Sh. Avinash Saxena was and as to why his mother had resided in that guest house for 4 days with him.

26. Children of such an age form their own understanding of such situations which leave an indelible mark on their mind. Such kind of an atmosphere most certainly would not be in the interest and welfare of the minor child. The respondent has eventually married with Sh. Avinash Saxena in February-March 2011. Master Karan is now aged about 7 years and Ms. Dimple is aged about 3 years. During course of her cross examination respondent has stated that there was likelihood of the respondent bearing children to her new husband. Petitioner has apprehended that in case that she bears children, children born from the first wedlock would stand neglected since the step father would not have any love and affection from the minor children born out of another man. Apprehensions of the petitioner are not unfounded. The respondent has not chosen to produce Sh. Avinash Saxena to come and state before this Court whether he was ready and willing to look after the minor children. It may also be noted that the respondent in her cross examination has stated that she was currently studying inDelhiand her husband Sh. Avinash Saxena was residing in Mumbai. She was likely to go to Mumbai later on.

27. Counsel for respondent had stressed that the respondent is not keeping the children in an environment which was conducive towards interests and welfare of the children. He had submitted that respondent had gotten the minor child Master Karan admitted into LKG although the child was seven years old. The petitioner, PW1 had deposed in his affidavit in para 20 that when the respondent left the matrimonial home, Master Karan was studying in Class one in Jeewan Jyoti Public School,Amritsar. He proved the fee slips of standard one as Ex.PW1/2 (colly) and result/marksheet of KG as Ex.PW1/3 (colly). There is no cross examination of PW1 by the respondent on this aspect. The respondent has not given any suggestion that at the time of leaving the matrimonial home in 2009, Master Karan was not studying in standard one. It therefore stands proved that in 2009 when the respondent left the matrimonial home Master Karan was studying in Class one. In para 31 of his evidence by way of affidavit petitioner/PW1 has deposed that respondent has got Master Karan admitted in lower KG instead of class one thereby causing him loss of three academic years. There is no cross examination of the PW1 on the contents of para 31 of his evidence by way of affidavit Ex.PW1/X. The  respondent on the other hand has not led any evidence with respect to the status of education of minor child Master Karan. There is not even a whisper regarding the status of education of the minor children. In these circumstances this court has no other alternative but to accept the submission and contention of the petitioner that education of the minor child Master Karan has suffered severely at the hands of the respondent.

28. Counsel for petitioner had submitted that the minor children are residing with the respondent in a slum cluster (jhuggi jhopri) in Seemapuri, Dilshad Garden , Delhi. During the course of her cross examination, respondent has admitted that her place of residence was Jhuggi Jhopri cluster. She has stated that there was only one room available with the respondent and minor children. In her cross examination respondent had stated that the petitioner was residing in his own residence but the same was situated in a Village atAmritsarCity. Respondent had produced Smt. Meera as PW2 who had deposed by way of affidavit EX.RW2/A. During her cross examination RW2 has stated that she was residing in the same area as of the respondent which was a Jhuggi Jhopri cluster. She stated that respondent was having one room where she washed her utensils and also took bath. RW2 has stated that the area in which the respondent and she were residing was not conducive for the welfare of children. She has stated that the majority of the people residing in the area were not of good nature.

29. Respondent had stated in her cross examination that she had gotten marriage with Sh. Avinash Saxena who was staying in Mumbai. She has stated that she would be shifting to Mumbai but has not stated as to what kind of residential facilities would provided to the minor children at the residence of the new husband Sh. Avinash Saxena. Counsel for the respondent had argued that the petitioner was residing in a village whereas the respondent was residing inDelhi. In the opinion of this court, the petitioner may be residing in a village atAmritsarcity but he is still residing in his own premises. Respondent is residing in slum cluster which as per own saying of witness of respondent RW2 has a majority of bad characters. Witness of respondent has stated that area in which they reside is not good for children. Further the Respondent has not stated as to what she proposes to do in future i.e. whether she would remain  n Delhi or would shift to Mumbai. Even if she shifts to Mumbai, no material has been placed on record by the respondent to show as to what kind of residential accommodation would be made available to the children.

30. Children require stability. At impressionable age children are easily  influenced by the environment in which they are living. In the opinion of this court even if the petitioner is residing at a Village inAmritsarhe will residing in his own house with his own relatives and comparatively the same would be a much better environment for the children when compared to the residence of the respondent in slum a cluster coupled with a lack of clarity with regard to their future residence.

31. Counsel for petitioner had argued that the petitioner is running his own

business from his residence and was earning handsome amount and had sufficient

means to maintain and look after the minor children and all their other interests. In

his evidence by way of affidavit, in para 33 petitioner has deposed on those lines.

During his cross examination PW1 has stated that he is having his own business of

water purifiers and service which he was running from his house. He stated that he

could produce the bill book in the court and that his business was in the name of

World Tech Sales Corporation at his residence. He stated that he was earning about

Rs.8000/- per month approximately. Respondent in her evidence by way of affidavit

Ex.RW1/A in para 14 has deposed that she was doing private job and was properly

looking after her children in all respects. However there is no deposition as to the

amount of income that she was earning. In her cross examination witness has stated

that she was doing sewing work at her house which she called a private job and was

earning Rs.200/- per day. Witness was confronted with her statement in her reply to

the petition where she has stated that she was earning Rs.70/- to Rs.80/- per day

and she stated that the same was when the written statement was filed and currently

her income has gone up. In her further cross examination she deposed that she did

not maintain any account and she would bring work from a nearby shop of one Sh.

Vivek. Suggestion was given that there was no shop of Sh. Vivek nearby her house.

32. RW2 Smt. Meera had deposed in her affidavit Ex.RW2/A that the respondent

was earning a handsome amount by doing a private job. No description of this

private job has been given by RW2. In her cross examination RW2 has stated that it

was correct that respondent did not bring any work from outside. She stated that

people would come to the house of the respondent for stitching of the clothes. She

stated that respondent was earning Rs.200/- to Rs.250/- per day from doing stitching

work.

33. While the petitioner has deposed that he was doing his own business of water

purifiers sales and service and was earning Rs.8000/- per month, the Respondent

has stated that she was doing stitching work. Petitioner has stated that he was

earning Rs.8000/- per month. Respondent has stated that she was earning about

Rs.200/- per day. Neither party have provided any documentary proof of their income.

34. The other testimony of the parties is basically in the nature of atrocities

alleged to have committed by each party against each other during the subsistence

of their matrimonial relationship. Issue before the Court is with respect to the interest

and welfare of the minor children and the conduct of the husband and wife against

each other are not relevant consideration. This court therefore does not deem it

necessary to go into the same for the purposes of this petition.

35. Petitioner has examined his mother Smt. Kulwant Kaur Kulwant Kaur who is

65 years old as PW2. She deposed by way of affidavit Ex.PW2/X. She has deposed

that she was 10

th

class pass and was giving tuitions to children and was in a position

to take care of her grandchildren. This witness was cross examined by the

respondent. In her cross examination she stated that she was having blood

pressure. She has stated that she is residing in her own house. She had an elder

daughter aged about 53 years old and younger daughter aged about 40 years old.

She has stated that her elder daughter cannot come to her house hold every day as

she has to look after her own home. Younger daughter resides about 3 kilometers

away comes only during festivals. Counsel for respondent had submitted that apart

from the petitioner there is no other fit person to look after the children in the house

of the petitioner. From the deposition of PW2 Kulwant Kaur it appears that she is

willing to take care of the minor children but considering that her age that was 65,

one cannot assume that she would always be fit enough to take care of the children

who were very young.

36. It is on the basis of the above evidence led by the parties that this court has to

determine whether it is in the interest and welfare of the minor children Master Karan

and Ms. Dimple to let them remain in the custody of the respondent or to hand over

their custody to the petitioner.

37. In the case of Shyamrao Maroti Korwate Vs. Deepak Kisanrao Tekam

reported in 2010 (4) CCC 940 (SC) the Hon’ble Supreme Court has reiterated that in

matters of custody the primary consideration of this court should be the interest and

welfare of the minor children and not the rights of the parents. Petitioner had

contended that respondent was intending to marry her brother in law Sh. Avinash

Saxena. Respondent has denied the same. However the petitioner has proved that

respondent not only had a relationship with Sh. Avinash Saxena during the time the

marriage between the parties was subsisting but she has also subsequently married

Sh. Avinash Saxena. Whether it is in the interest and welfare of the minor children

that they be brought up in the custody of their mother or in custody of their father?

Imparting of social values and ethics are an extremely important part of duty of

parents. The first and most crucial place of learning of children is their home and

their first and most important tutors are their parents. An adult is free to take any

decision which suits his or her interests. However when adults are also parents,

decisions taken by them regarding their own life also have a bearing on their

children. The respondent may be right in her own way to take a decision to leave her

husband to marry another man but choosing to indulge in an extra marital affair and

exposing her children to the same would have left a mark on the minds of the minor

children. In the opinion of this court the minor children Master Karan and Ms. Dimple

would most certainly have been confused regarding marital status of their parents

when the respondent indulged in an affair with Avinash Saxena during the time she

was married with the petitioner. In the opinion of this court children’s father would be

in a better position to impart social and ethical values to the minor children rather

than their mother, the respondent.

38. Respondent is admittedly residing in a jhuggi cluster which consists of only

one room. R3W2 herself has stated that the area had a majority of bad characters

and the same was not conducive for children. Petitioner is residing in his own home

inAmritsaralong with his mother. Respondent although has remarried in February March 2011 is still not residing with her new husband. There is no certainty as to

whether the respondent will continue to reside inDelhior will go to Mumbai. There is

no clarity regarding future residential accommodation of the minor children. In the

opinion of this court residence even in a village with own family members would be

better for the minor children when compared to a residence in a slum cluster inDelhi

with no certainty about the future.

39. Petitioner has proved that in 2009, Master Karan was studying in standard

one inJeewanJyotiPublic Schoolnear his house inAmritsar. Examination in chief

of the petitioner regarding respondent having admitted minor children in lower KG

and losing three academic years has gone un-rebutted by the respondent.

Respondent has not taken care of the education of Master Karan. Losing three

years of academic life at this age are extremely crucial. Respondent has neglected

the education of her children. Education of the other child Dimple is yet to

commence. Her academic future cannot be left to be jeopardized at the hands of the

respondent.

40. The respondent in her cross examination had stated that there were chances

of her bearing children to her new husband Avinash Saxena. Petitioner has

apprehended that once the respondent bears children to her new husband, the

interests of Karan and Dimple would be neglected. Respondent has not examined

her new husband Avinash Saxena or has deposed that he would be willing to take

care of the minor children. Even after marrying the respondent in February-March

2011, this person has not taken the respondent to her new matrimonial home with

the minor children in question. It may be that these are assumptions in the mind of

the court as there is no positive evidence to establish the same. However the cost of

taking the risk of letting the minor children to remain in the custody of the respondent

and her new husband and awaiting the outcome of the same is too high for this court

to permit such an arrangement. By the time another petition may be filed by the

petitioner alleging neglect of the minor children at the hands of the respondent and

her new husband, it would be too late since the children would already have suffered

the trauma. This petition has been filed by the petitioner on 19.08.09. On that date

Karan was aged about 5 years and 4 months and Dimple was aged about one year

and four months. It is 21.12.11 today. Karan is aged about 7 years and 7 months and

Ms. Dimple is aged almost 3 years. By the time another petition is filed the children

would no longer be young. There is nothing on this earth which can turn back the

clock and   return    children    a better  childhood  which  may  be  lost  in this

process.

41. Although the respondent did not argue this point, the court is conscious of the

provisions of Section 6(a) of Hindu Minority and Guardianship Act, 1956 which

provides that ordinarily the custody of a minor child below the age of 5 years should

be with the mother. In the present matter, there is overwhelming evidence on record

which has convinced this court to hold that letting the minor children remain in the

custody of the respondent would not be in their interest and welfare.

42. In the opinion of this court these reasons are sufficient for this court to be

convinced to pass an order for handing over of permanent custody of the minor

children Master Karan and Ms. Dimple to the petitioner. Petition is allowed.

Respondent is directed to immediately hand over custody of the minor children

Master Karan and Ms. Dimple to the petitioner.

43. Before parting with this matter, this court deems it necessary that an

arrangement be made for permitting the respondent to meet the minor children since

it is the duty of the parents to ensure that the children know who their parents are.

The respondent will be entitled to meet the children as and when she desires at

Amritsarat the residence of the petitioner after giving him sufficient notice thereof.

44. With these observations petition is disposed of.

45. File be consigned to Record Room.

Dictated to the Steno and announced

in theOpen Courttoday i.e. 21.12.2011

(REETESH SINGH)

ADDL. DISTT. JUDGE-01 (NE)

KARKARDOOMA COURTS,DELHI.

Jodhpur HC- Custody cannt be denied because of some fortuitous circumstance

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

ORDER

S.B. Civil Misc. Appeal No.1572/2008

Mangal Das Viashnava & Anr.
Vs.
Jitendra Kumar Vaishnava

DATE OF ORDER :: 15th May, 2009 PRESENT

HON’BLE MR. PRAKASH TATIA, J.

REPORTABLE

Mr. IR Choudhary, for the appellants.
Mr. AK Rajvanshy, for the respondent.

BY THE COURT:

Heard learned counsel for the parties.

This appeal is by the non-applicants maternal grand- father and grand-mother against the judgment of the court of Addl. District Judge, Bali, Pali passed on the application filed under Section 7 of the Guardian and Wards Act by the father of the minor child whereby the trial court has allowed the application of the father of the child Nikhil and directed the appellants-non-applicants to hand over the custody of the child Nikhil to the respondent-applicant-father.

Brief facts of the case are that the respondent- applicant’s marriage was solemnized with appellant’s daughter Smt. Asha on 21st Nov., 2005. Out of wedlock, boy Nikhil born on 12th Sept., 2002. It is stated that in the year 2003 applicant-respondent’s wife fell ill seriously and due to illness she died on 2.8.2004. At that time, the appellant-non-applicant came to the house of the respondent-applicant and stated that for few days they want to take Master Nikhil to their house and they took Nikhil to their house for living with them for few days only. However, thereafter, inspite of request of the applicant-respondent, the appellants-non-applicants did not hand over the custody of the Master Nikhil to the respondent-father. It is also alleged that appellant no.2 is the second wife of the appellant no.1 and therefore, is the step mother of the applicant respondent’s wife deceased Asha. Therefore, it is stated that appellants are not entitled to have the custody of the son of the applicant-respondent. It is also stated that appellants-non-applicants were of the age of 55 and 53 respectively and they have no good source of income and they are carrying on their life with the help of their pre-earned income, whereas the applicant is in private service and is getting Rs.6,000/- per month and has good living accommodation. It is also submitted that the applicant- respondent’s father is a retired Government employee and therefore, they have very good family wherein the applicant’s son will have best lookafter and will get good education and the welfare of the applicant’s-respondent’s son will be if he lives with the applicant-respondent. The applicant before filing this petition for custody in the court gave a registered notice to the appellants-non-applicants on 25.2.2005 and even, thereafter, the custody of the child has not been delivered to the respondent-applicant, then he has filed the present petition.

The non-applicants submitted reply to the petition while admitted the marriage of the respondent’s-applicant with their daughter and birth of Master Nikhil on 12th Sept., 2002. They denied that their daughter was sick for long period and submitted that in fact, she become sick because of the torture on their daughter by the family members of the applicant-respondent. They also stated that they used to harass deceased Asha for dowry and they gave beating to Smt. Asha and thrown out Smt. Asha from the house of the applicant-respondent. That caused mental agony for Smt. Asha and because of that she fell ill. It is stated that the appellants-non-applicants took Smt. Asha to hospital and they incurred all the expenses for the treatment of their daughter Smt. Asha. The applicant never tried to care his wife and hardly he came to meet with his wife Smt. Asha and on account these cruelty Smt. Asha died on 2.8.2007. It is stated that non-applicant no.1 is doing his business in Nadiyad City of Gujarat and he was not given information about the death of Smt. Asha in time, but immediately when non-applicant no.1-appellant no.1 received the information of death of Smt. Asha he reached to village Bali where she died. It is alleged that before appellant no.1 could reach village Bali from Nadiyad, Asha’s funeral was performed and non-applicant no.1 protested for funeral of Asha before non- applicant reached to the house of the applicant, upon which his family members tendered apology and because of the intervention of the relations, non-applicant no.1 did not lodge FIR against the applicant for committing murder and for demanding dowry.

It is also stated in the reply that the applicant and his father assured that they will return all the goods of Smt. Asha which was given to Smt. Asha at the time of marriage by the non-applicants. They also agreed that they will allow custody of Master Nikhil to the appellants-non-applicants, however, after some time, the applicant and his family members refused to deliver Smt. Asha’s Istridhan upon which the non-applicants initiated separate proceedings. It is also stated that welfare of the child is if the custody of the child remaines with the non-applicants. It is also stated that applicant is doing work of cooking at Nadiyad, he is saving Rs.10,000/- per month. The non-applicant no.2 is also doing work from home and earning. The non- applicants also stated that the applicant is not doing services in any private firm nor he has income of Rs.6,000/-. He is trying to get Government employment, but living with his father, who is running the house. The applicant’s father was a Class IV employee, who has already retired three years ago and getting nominal pension. In the family of applicant, he has one elder brother, elder brother’s wife, two sons and two daughters of his elder brother. The applicant cannot impart good education to the child Master Nikhil.

The trial court framed the issues and both the parties led evidence. In support of the petition, the applicant gave his own statement as AW-1 and produced witness AW-2 Ranchhod Das, who is father of applicant Jitendra Kumar, AW-3 Veera Ram and AW-4 Ramesh Das. In documentary evidence death certificate of Smt. Asha, birth certificate of Master Nikhil and copy of the notice and postal receipts were produced by which notice was sent by the applicant to the non-applicants. The non-applicant no.1 gave his own statement as NAW-1 and produced witnesses NAW -2 Vardhi Shanker and NAW-3 Dinesh Kumar. The non-applicants also produced medical prescription to show that they provided medical treatment to Smt. Asha and produced photographs. The trial court after considering the evidence of the parties and considering the judgments relied upon by the parties, held that Smt. Asha was living with the applicant till she died and admittedly, she died in the house of the applicant. It is admitted case that Smt. Asha was suffering disease of tuberculosis. From the evidence it is not proved that Smt. Asha’s treatment was not provided by the applicant from doctors. From the fact that Smt. Asha died in the house of the applicant, the court drew inference that there was no serious dispute between the husband and wife and, there was no complaint of any dowry demand etc. against the applicant. From the first information report, copy of which has been produced as Ex.A/22, it is clear that in FIR only allegation was that the applicant refused to return the goods which was given to Smt. Asha by the non- applicants at the time of her marriage. The case was registered under Section 406 IPC and not under Section 498A IPC. In the FIR it is not mentioned that Smt. Asha was ever harassed for dowry. In cross-examination, the non-applicant NAW-1 Mangal Das himself stated that he is ready to hand over the custody of child to applicant provided applicant obey his directions. The non-applicant no.1 also stated that he is ready to hand over the custody of the child to the applicant provided the applicant deposits Rs.80,000/- in the name of Master Nikhil. The court below held that from evidence nothing came against the conduct of the applicant so as to deny him custody of the child and further more the applicant is in private service, he is getting Rs.6,000/- per month as salary and the same has increased to Rs.8,500/- per month, therefore, he will be able to lookafter his son and will be able to give good education to his son. Against this, the non-applicants are of the age of 57 and 55 years and they have no good source of income. In totality, the trial court was of the view that for the welfare of the child it is necessary that his custody may be given to child’s father.

Being aggrieved against the judgment of the trial court dated 25th Sept., 2008, learned counsel for the appellants vehemently submitted that paramount consideration in such matters is not the legal right of the natural guardian or of anybody but the paramount consideration is welfare of the child. He stated that admittedly Smt. Asha died within the period of five years from the time of marriage. Smt. Asha’s funeral was done without waiting for Smt. Asha’s mother and father – non-applicants-appellants and there was no reason for doing so by the applicant and his family members. The child was living with non-applicants since last two years seven months and then the applicant submitted application for custody. It is submitted that just after funeral of Smt. Asha, the applicant and his family members with the help of relatives could avoid criminal prosecution against them and agreed that they will return all the goods of daughter of non-applicants and also agreed that custody of Master Nikhil will remain with the non- applicants. Otherwise, there was no reason for allowing the custody of Master Nikhil with appellants for more than two years. It is also submitted that applicant-respondent has no source of income and the child is well looked after by their maternal grand-father and mother. It is also stated that from the child’s inteligence and courteous behaviour it is clear that he is being very well looked after by the non- applicants. It is submitted that the child has shown his willingness to live with his maternal grand-father and mother before this Court on 4.2.2009 and this Court has recorded his wish on 4.2.2009. It is submitted that now Master Nikhil is of the age of 6 years. He knows his maternal grand-father’s and mother’s attitude and conduct, therefore, there is no reason to disturb the custody of the child of age of more than 6 years, who has lived with the appellants for more than six years, which may cause him the great mental shock and he virtually is not known his father as he had no occasion to live with his father. Learned counsel for the appellants relied upon the judgment of the Hon’ble Superme Court delivered in the case of Kirtikumar Maheshankar Joshi Vs. Pradipkumar Marunashanker Johsi reported in 1992 SC 1447 and recent judgment of the Hon’ble Supreme Court delivered in the case of Nil Ratan Kundu & Anr. Vs. Abhijit Kundu reported in (2008) 9 SCC 413 wherein father’s claim for the custody of the child was refused by Hon’ble Apex Court. Same was the view taken by this Court and in this respect, the learned counsel for the appellants relied upon the judgment of the Division Bench of this Court delivered in the case of Govind Sahai Bagarhatta & Ors Vs. Shri Santosh Mishra reported in 2001 DNJ (Raj.) 886 and the judgment delivered in Goverdhan Lal & Ors Vs. Gajendra Kumar reported in 2001 DNJ (Raj.) 879

Learned counsel for the respondent-applicant submitted that so far as legal proposition that paramount consideration in such matters is welfare of child, there is no dispute. It is also submitted that applicant is father of the child Master Nikhil. The applicant had good relations with his wife Smt. Asha. Admittedly, she was sick for long period and she died due to her illness. She was suffering from tuberculosis is admitted fact. Before the death of Smt. Aasha, there was no allegation against the applicant and his family members from the side of the non-applicants- appellants nor there was any complaint of Smt. Asha against the applicant and his family members. It is also stated that if Asha was suffering from disease and the appellants got her treated then they cannot say that applicant is responsible for the death of Smt. Asha. Learned counsel for the respondent vehemently submitted that if father’s conduct is good and nothing is adverse against him and he can take care of his son, then there arises no reason to deny the custody of son to father merely because the father could not get the custody of child as his petition was not decided by the court. It is submitted that due to the good relations only, the deceased Asha was living with him and after the death of Asha, the applicant gave custody of the child to the non-applicants-appellants voluntarily so that they may not feel hurt. It is submitted that it will be the benefit of unfortunate situation to the non-applicants- appellants if they are allow to keep the custody of the child. It is submitted that if child has shown his desire to live with his maternal grand-father and grand-mother then that is because of the reason that since birth he was living with them. It is submitted that if he would have lived with the applicant-respondent then he would have shown his desire to live with the respondent-applicant. It is submitted that the wish of the body of six year’s in the facts of the case is absolutely irrelevant. It is submitted that the appellants not only failed to prove any allegation against the applicant- respondent but in fact serious allegations have been levelled just to get certain goods and cash and the trial court has considered all the aspects of the matter in detail, therefore, appeal deserves to be dismissed.

I considered the submissions of learned counsel for the parties and perused the facts of the case and the entire record. So far as relation between the applicant and his wife till applicant’s wife Smt. Asha died are concerned, there is no material on the basis of which it can be said that, that was a bad relation. There is no substance in the allegation of the appellants-non-applicants that Smt. Asha was ill treated by the applicant and his family members. The non- applicants’-appellants’ contention that they lodged FIR against the applicant though after some time, but that was because of the intervention of the relations then that fact situation in preponderance of probabilities clearly suggests that there were no serious dispute even when the last rites of Smt. Asha was performed before the non-applicant no.1 reached to the house of the applicant. In delayed FIR also, there is no allegation that Smt. Asha was ill treated by the applicant and his family members. In that situation, the other facts are required to be seen in the background of these facts because of the reason that custody of the child is claimed by father and not by a relation. The Hon’ble Apex Court in recent judgment delivered in Nil Ratan Kundu & Anr (supra) clearly held that paramount consideration is the welfare of the child and not statutory rights. Further, the Hon’ble Apex Court held that “….the problem has to be resolved rather with a human touch….” and thereafter, observed that in dealing with the cases, the court is neither bound by statues nor by strict rules of evidence or procedure nor by precedents and further observed that since in selecting a guardian, the court exercises parens patriae jurisdiction, it must give due weightage to child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings as well as physical comfort and moral values. The Hon’ble Apex Court also held that court must ascertain child’s wishes and if the minor is old enough to form an intelligent preference, such preference must also be considered although the final decision would rest with the court. The Hon’ble Apex Court further held that for proper test to determine the suitability of the father to have the custody of the minor, the positive test of welfare of the minor and not the negative test that the father was not unfit or disqualified to have the custody.

Keeping in mind the above binding observations if we looked into the facts of the case of Nil Ratan Kundu & Anr (supra) then we can find that in that case father was charged with the offences under Section 498 and 304 IPC and allegation was of causing death of minor’s mother. That was very important fact for refusing the custody of the child to father in the case of Nil Ratan Kundu. It will further worthwhile to mention here that in case of Nil Ratan Kundu, the child was of the age of 6 years when the trial court decided the matter and the trial court did not call him to ascertain the wishes as to with whom he wanted to stay. At this place it is also worthwhile to mention here that the trial court has decided the case on 15th July, 2006, which was affirmed by the High Court of Calcutta on 17.12.2007. As stated above, the child was of the age of 6 years when the trial court decided the matter then the minor child was brought to the High Court where the child expressed his willingness to live with his maternal grand-father and grand- mother. For the child’s that wish, the High Court observed that “….During our conversation with the child we have observed with great anxiety that the child has been tutored to make him hostile towards his father….” The High Court also took note of the observation made by the trial court as the trial court observed that opposite party wanted to wiped out the existence and identity of the father from the mind of petitioner’s son and if it is so, then it may be disasters of father. The Hon’ble Apex Court held that above observation of the trial Court was affirmed by the High Court without there being any material. Here in this case, the child though has shown his willingness to live with his maternal grand-father and maternal grand-mother but that wish appears to be an innocent wish of a child living with his maternal grand-father and grand-mother and child himself is not in position to decide about his own welfare looking to his age. Here in this case, the child had no ill will towards his father and for that the credit may go to the maternal grand-father and grand-mother that, they did not take benefit of that situation. Be it as it may be, the child’s wish is not the sole criteria for deciding the case of such nature as in present fact situation child is only showing that he was not ill-treated by his maternal grand-father and mother or rather say was given full love and affection. That may be a normal behaviour of a normal person. But good behaviour of appellants is not the disqualification of respondent. The respondent is natural guardian and father cannot be denied custody of child merely because others in fortuitous circumstance could give good love and affection to the child. It cannot be presumed that if the child would have lived with his father during this period when custody of child was with appellants, the child wold have not developed the same sentimental attachment with his father and parental family.

Each case is required to be decided according to the facts of the case and Hon’ble Apex Court itself in the case of Nil Ratan Kundu clearly held that “….In dealing with such cases, the court is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. The relevant criteria as laid down by the Hon’ble Apex Court are that weightage to child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings as well as physical comfort and moral values, are the issues which should be looked into. The child’s father here in this case, is in service was getting salary of Rs.8500/- per month, whereas non-applicants who were of the age of 55 and 53 years had limited source of income and non-applicant no.1-appellant no.1 is a cook and taking contract for preparation of food and non-applicant no.1′s work is not of continuous nature with a stability of income.

Further more, the non-applicant in his evidence, in cross- examination admitted that he is ready to give the custody of the child to the applicant provided he obeys his directions and instructions. He also stated that he is ready to give the custody of child to the applicant if he deposits Rs. 80,000/- in fixed deposit in the name of child. Therefore, the non- applicants’ only plea is that they want assurance about the proper security of the child from the applicant. Otherwise there is no objection to them in handing over the custody of the child to the father. This fact is very important because of the reason that even after passing of such a long period, yet there is no ill will in the mind of the non- applicants-appellants for the applicant and his family members, which can only be because of the reason that they could not find any fault in the applicant-respondent in any manner, but they developed some love for the child Master Nikhil and that cannot be reason for allowing the custody of the minor with the maternal grand-father and grand-mother nor can it be the reason for denial of custody of natural guardian – father.

In the case of Kirtikumar Maheshankar Joshi (supra)

the children were not living with their father and they narrated various episodes showing ill treatment of their mother at the hands of their father. In that situation, the Hon’ble Apex Court did not hand over the custody of the children to the father. As stated above, after analysis of statement of appellant no.1, there is no allegation against the conduct of the applicant supported by any evidence nor the child has developed any second alternate to his father. Therefore, in the facts of this case, the case of Kirtikumar Maheshankar Joshi (supra) cannot help the appellants. In the case of Govind Sahai Bagarhatta & Ors (supra), the Division Bench of this Court at the age of 10 years of the child who lived for all that period with his maternal grand-father and after noticing his wish to live with maternal grand-father held that, it is not proper to hand over the custody of the child to his father. The said case was decided on facts of that case and not laying down that when child has disclosed his wish to live with particular party that is binding upon the court.

In the case of Goverdhan Lal & Ors (supra) the child was of the age of 14 years and he was living with his maternal grand-mother and shown his willingness to live with the maternal grand-mother instead of his own father, the Division Bench of this Court refused the custody to father. The said case also has been decided only on the particular facts of the case and has no relevance to the facts of the present case.

It will be further worthwhile to mention here that the applicant-respondent contacted second marriage on 21.1.2007 i.e., after more than two and half years from the time of death of respondent’s wife and it is alleged that the child will have to live with his step-mother. No step-mother can be condemned only because she is step mother and unless there exists any reason. There is no allegation against the non-petitioner’s second wife and at this stage, it will be worthwhile to mention here that even the maternal grand-mother of the child – the appellant no.2 was also the step-mother of the non-petitioner-applicant’s wife. The appellant no.2 also has not been condemned merely on the ground that she was step-mother of respondent’s wife. Therefore, that situation is also not a situation on the basis of which the relief can be denied to the father of the child.

Further more, in cross-examination, the appellant himself admitted that the house of the respondent’s father is a well settled family. The totality of the facts suggests that environment in the house of the respondent is also so as to give a good living to the child for all purposes. In the facts of the case, it has come on record that the applicant is the natural guardian and father of the child, his relation with his wife even at the time of death of his wife was not bad in any manner, there was no allegation of demand of dowry and ill treatment with wife from the side of the applicant before the death of the wife of the applicant. The applicant has permanent income with periodical increase. The appellants-non-applicants themselves on financial security of the minor child are ready to hand over the custody of the child to the applicant- respondent and there is nothing on record to suggest that welfare of the child is in any way in peril in the hands of father. On such grounds, the Hon’ble Apex Court in the case delivered in Mausami Moitra Ganguli Vs. Jayant Ganguli reported in (2008) 7 SCC 673 held that then there is no ground to upset the judgment and the order of the court.

In view of the above reasons, I do not find any reason to interfere in the judgment of the court below. Hence, the appeal of the appellants is hereby dismissed. (PRAKASH TATIA), J.

c.p.goyal/-

Custody to the Father.- Madras HC

Madras High Court

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 01/02/2011

CORAM : THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN

C.M.A.(MD) 170 OF 2010 AND M.P.NO.1 OF 2010

1.Dinesh alias Syed Mohamed Sheik Sikkandar
2.Jabar
3.Yasmin .. Appellants

Versus

S.Jareena Begum .. Respondent

PRAYER : Civil Miscellaneous Appeal filed under Section 47 of Guardians and Wards Act, 1890 against the judgment and decree dated 31.12.2009 passed in G.W.O.P.No.27 of 2007 by the learned First Additional District Judge, Madurai.

For Appellants … Mr.G.Prabhu Rajadurai
For Respondent … Mr.S.Rajendran

:JUDGMENT

This Civil Miscellaneous Appeal is directed against the judgment and decree dated 31.12.2009 passed in G.W.O.P.No.27 of 2007 by the learned First Additional District Judge, Madurai.

2.The brief facts leading to the filing of this appeal are as follows:

(a) The first appellant, who is the son of the second and third appellants, registered his marriage with the daughter of the respondent namely Sainammal on 08.07.2004 at the Registrar Office, Madurai, without the knowledge and consent of both the parents. That is, the second and third appellants as well as the respondent were not informed about the registered marriage between the first appellant and Sainammal. After marriage, the couple lived for sometime at Chennai.

(b) Thereafter, both the parents arranged for the customary wedding as per their religious rites and customs. The arranged marriage between the first appellant and Sainammal held on 21.02.2005 at K.S.K.R. Marriage Hall at Sellur as per the the Customs of Muslims and was registered in Narayanapuram Area Muslim Jamath. Out of their wedlock, a female child was born on 10.11.2005 and the name of the child was Mariyam Parija.

(c) While so, the daughter of the respondent, that is, the wife of the first appellant viz., Sainammal committed suicide on the midnight of 28.07.2007.

(d) Based on the complaint given by the respondent, a criminal case was registered against the appellants in Crime No.323/2007 under Section 304(B) IPC on the file of the Oomatchikulam Police Station, Madurai. The third appellant, the mother of the first appellant obtained anticipatory bail, however, the first and second appellants were arrested and later, were enlarged on bail. The minor child viz., Mariyam Parija was under the custody of the appellants.

(e) In the meantime, the respondent filed a petition in

G.W.O.P.No.27/2007 under Sections 7(1)(b), 8 and 25 of Guardians and Wards Act, 1890 before the learned First Additional District Judge, Madurai, seeking to appoint her as legal guardian of the minor child viz., Mariyam Parija and for a consequential direction to hand over the minor child to her.

(f) In the said petition in G.W.O.P.No.27/2007, the respondent herein has averred that her husband was working as Superintendent in Education Department of Government of Tamil Nadu and she has three daughters. The second daughter viz., Sainammal got married with the first appellant herein at the Registrar Office at Madurai on 08.07.2004. Initially, the second and third appellants did not accept the registered marriage and drove out the couple from their house. Thereafter, the second and third appellants demanded 50 sovereigns gold jewels and Rs.50,000/- as dowry to accept the marriage. The respondent agreed to give 35 sovereigns gold jewels and Rs.50,000/- as dowry. In the said circumstances, the marriage between the first appellant and Sainammal was held on 21.02.2005 at K.S.K.R. Marriage Hall at Sellur as per the the Customs of Muslims and was registered in Narayanapuram Area Muslim Jamath. At the time of marriage, her daughter viz., Sainammal was not aware that the first appellant had no job and was roaming here and there. It was also alleged that the appellants snatched all the jewels from her daughter and started harassment and compelled her to get more money as dowry from the respondent. It was also alleged that the daughter of the respondent came to her house with tears and told the cruelty meted out to her at the hands of the appellants and in those circumstances, the respondent also gave another seven sovereigns of gold and cash of about Rs.10,000/- on several occasions. While so, her daughter gave birth to a female child on 10.11.2005 and all delivery expenses were borne by the respondent. The respondent also gave three sovereigns of gold to the minor child at the 48th day of birth ceremony. Even then, the appellants tortured her daughter and demanded dowry often. In June 2007, the daughter of the respondent viz., Sainammal came to the house of the respondent and told her that the appellants demanded Rs.2,00,000/- to send the first appellant i.e. her husband to abroad for job and that she was beaten up atrociously as she refused to demand money from the respondent. The respondent took her daughter along with her husband and three of her relatives to the house of the appellants and left her daughter at the appellants’ house and advised them not to harass her daughter and to demand dowry. Again on 25.07.2007, the appellants drove out the daughter of the respondent along with the minor child and warned her that if she came back without Rs.2,00,000/- she would be facing dire consequences. On the same day, the respondent took her daughter along with her husband and other relatives to the house of the appellants and left her daughter and also told them that she would complain to the Jamath and other appropriate authorities, if they continued to demand dowry and that she could not give such a huge amount. While so, she received a phone call at about 05.00 a.m. on 29.07.2007 that her daughter committed suicide by hanging at about 00.00 hours on 29.07.2007 and the body was kept at Government Rajaji Hospital, Madurai. According to the respondent, her daughter committed suicide due to cruelty and the harassment by the appellants. A case was also registered in Crime No.323/2007 under Section 304(B) IPC on the file of the Oomatchikulam Police Station, Madurai. Hence, the respondent sought her to be appointed as legal Guardian and for a consequential direction to hand over the minor child to her.

(g) The appellants herein filed counter statement refuting the allegations made by the respondent. It is pleaded that the marriage between the daughter of the respondent and the first appellant was out of love affair. The appellants 2 and 3 accepted the marriage of their son with the daughter of the respondent. The appellants strenuously denied the allegation that they demanded dowry. The appellants also pleaded that they neither demanded nor received any dowry. It is also pleaded that the respondent did not accept the marriage of her daughter with the first appellant. The appellants averred that the first and second appellants are doing fibre mill business and the second appellant is a Partner in a Fertilizer Firm and the daughter of the respondent was aware of the business and the appellants never harassed the said Sainammal. Except the fact that the daughter of the respondent gave birth to a female child on 10.11.2005, all other allegations were denied by the appellants herein. It is stated that when the respondent lodged a complaint in the Oomatchikulam Police Station, Madurai on the death of her daughter, the appellants 1 and 2 were arrested and later enlarged on bail, while the third appellant obtained anticipatory bail. It is also stated that the appellants have nourished the minor child with all due care and affection. They made allegations against the husband of the respondent that he was of bad character and sought for dismissal of the petition. (h) Before the Trial Court, the respondent got examined herself as P.W.1 and four documents were marked as Exs.P.1 to P.4. Ex.P.1 is the marriage registration certificate; Ex.P.2 is the marriage certificate issued by the Narayanapuram Muslim Jamath; Ex.P.3 is the birth certificate of the minor child and Ex.P.4 is the copy of the First Information Report.

(i) On the side of the appellants herein, four witnesses were examined as R.W.1 to R.W.4 and seven documents were marked as Exs.R.1 to R.7. Exs.R.1 to R.3 are the photos; Ex.R.4 is the prescription issued by Abhiram Children’s Hospital to the minor child; Ex.R.5 is the School Fees receipt of the minor child; Ex.R.6 is the Dhana Settlement deed executed by the second appellant in favour of the minor child and Ex.R.7 is the Partnership deed showing the first appellant as a Partner in Fibre business.

(j) After hearing both sides, the Trial Court allowed the G.W.O.P.No.27/2007 on 31.12.2009. The Trial Court held that the appellants’ family constantly harassed the deceased Sainammal about her marriage with the first appellant and the deceased Sainammal was put in continuous torture by the family members of the first appellant. The Trial Court also noted that a criminal case was registered in Crime No.323/2007 under Section 304(B) IPC on the file of the Oomatchikulam Police Station, Madurai on 29.07.2007 and the appellants 1 and 2 were arrested and later enlarged on bail. Further, the first appellant was without any job and the appellants failed to prove that the first appellant is doing any job. The Trial Court also found that Exs.R.6 to R.7 were created for the purpose of the case as those documents were not registered. Based on these reasons, the Trial Court recorded a finding that the first appellant is unfavourable and the respondent is in a favourable position to have the custody of the child.

(k) Assailing the correctness of the aforesaid judgment, this Civil Miscellaneous Appeal is filed by the appellants under Section 47 of the Guardians and Wards Act, 1890.

3.Heard the submissions made by the learned counsel for the appellants and the learned counsel for the respondent.

4.The learned counsel for the appellants submitted that the Trial Court committed grave error in recording a finding that the appellants’ family constantly harassed the daughter of the respondent regarding the registered marriage held between the first appellant and the daughter of the respondent. The learned counsel for the appellants has taken me through the evidence of the respondent and also the evidence tendered by the appellants and the other materials available on record in support of his submission. The learned counsel contended that the findings recorded by the Trial Court that there was constant harassment and torture by the family members of the appellants has no basis at all and there is absolutely no evidence to come to such a conclusion.

5.The learned counsel for the appellants further submitted that in the matter of custody of a minor child, the paramount interest of the minor child is the guiding factor as held by the Honourable Apex Court and various High Courts and the interest of the minor child would be well protected only by the appellants and the respondent did not even see the minor child either by herself or through the relatives and that the respondent never visited the appellants home to see either her daughter or the minor child and she did not even know the address of the appellants. In this regard, the learned counsel for the appellants relied on the following judgments:

(a) A Division Bench judgment of the Kerala High Court in POOLAKKAL AYISAKUTTY VS. PARAT ABDUL SAMAD reported in AIR 2005 KERALA 68 (b) A judgment of the Honourable Apex Court in ANJALI KAPOOR VS. RAJIV BAIJAL reported in 2009 (7) SCC 322

(c) A judgment of the Bombay High Court in IRFAN AHMED SHAIKH VS. MUMTAZ AND ANOTHER reported in AIR 1999 BOMBAY 25

(d) A judgment of the Honourable Apex Court in SURINDER KAUR SANDHU VS. HARBAX SINGH SANDHU AND ANOTHER reported in 1984 (3) SCC 698.

6.The learned counsel for the appellants also submitted that there is no evidence to disclose the fact that the respondent gave dowry to the appellants and there was no evidence for demand and acceptance of dowry and there was no material to show that the appellants caused cruelty and demanded dowry from the respondent’s daughter. The learned counsel also submitted that a criminal case was pending against the appellants and that mere pendency of a criminal case could not be put against the appellants, more particularly, the first appellant, being the father and natural guardian of the minor child. In this regard, the learned counsel for the appellants relied on the following judgments:

(a) A Division Bench judgment of this Court in O.ULAGANATHAN VS. K.R.G. CHANDRASEKAR AND OTHERS reported in 1993 (II) MLJ 201

(b) A judgment of the Honourable Apex Court in KIRTIKUMAR MAHESHANKAR JOSHI VS. PRADIPKUMAR KARUNASHANKER JOSHI reported in 1992 (3) SCC 573

7.The learned counsel for the appellants contended that the Trial Court failed to consider the fact that the minor child has been living with the appellants right from the birth until this date and that the child is put in a school as revealed from Ex.R.5 and the child is given proper care by taken to hospitals whenever necessary as per Ex.R.4. It was also argued that the Trial Court was not correct in rejecting Exs.R.6 and R.7 on the ground that those documents were not registered. It was contended that even if those documents were not registered, the Trial Court should have found that the first appellant was doing business and was earning money and that the family had sufficient income to take care of the minor child in view of the oral evidence besides the documentary evidence, particularly the oral evidence of the first and second appellants and R.W.4, an independent witness. The learned counsel for the appellants also submitted that when allegations were made, the respondent did not take care even to examine her husband and other relatives referred to in her application to prove the charge of alleged harassment and cruelty.

8.On the other hand, the learned counsel for the respondent submitted that the first appellant was responsible for the death of the daughter of the respondent viz., Sainammal and a case was registered in Crime No.323/2007 under Section 304(B) IPC on the file of the Oomatchikulam Police Station, Madurai on 29.07.2007 and that therefore, the first appellant and his family members are not entitled to the custody of the minor child. The learned counsel also strenuously contended that in view of the pendency of the criminal case against the first appellant relating to the death of the daughter of the respondent, the appellants are not entitled to the custody of the minor child. In this regard, the learned counsel relied on the following judgments:

(a) A judgment of the Patna High Court in BIMLA DEVI VS. SUBHAS CHANDRA YADAV NIRALA reported in AIR 1992 PATNA 76

(b) A judgment of the Honourable Apex Court in NIL RATAN KUNDU AND ANOTHER VS. ABHIJIT KUNDU reported in VI (2008) SLT 785

(c) A Division Bench judgment of the Uttarakhand High Court in YOGESH KUMAR GUPTA VS. M.K.AGARWAL reported in AIR 2009 UTTARAKHAND 30

9.The learned counsel for the respondent further contended that Personal Law is also a relevant factor in deciding the custody and as per Section 102(1)(a) of Mohammedan Law, the respondent is entitled to the custody of the minor female child until she attains puberty. Hence, the respondent is entitled to the custody of the minor child. In this regard, he relied on the following judgment:

(a) A judgment of the Madhya Pradesh High Court in WAZID ALI VS. REHANA ANJUM reported in AIR 2005 MADHYA PRADESH 141

10.It was also contended by the learned counsel for the respondent that the first appellant was without employment and he did not do any business as correctly held by the Trial Court and the documents Exs.R.6 and R.7 were created for the purpose of the case. At the same time, the husband of the respondent is a Government employee and therefore, the respondent and her family would better take care of the interest of the minor child. The learned counsel argued that Ex.R.6 – Dhana Settlement deed appointing the mother of the minor child as Guardian is invalid as per the Muslim Personal Law and he relied on the commentaries on Mohammedan Law of Shri B.R.Verma in this regard.

11.I have considered the submissions made on either side and perused the materials available on record.

12.The issue that arises for consideration in this appeal is as to

“whether the Trial Court was correct in appointing the respondent as Guardian to the minor child viz., Mariyam Parija born to her daughter on 10.11.2005 through the first appellant and handing over the custody of the minor child from the appellants to the respondent?”

That is, it has to be decided as to whether the appellants are entitled to the custody of the minor child or the respondent.

13.It is not in dispute that the marriage between the daughter of the respondent and the first appellant was registered on 08.07.2004 at the Registrar’s Office, Madurai, without the knowledge and consent of both the families. That is, it was a love marriage. But the respondent alleged that later when the marriage was performed on 21.02.2005 at K.S.K.R. Marriage Hall at Sellur as per the Customs of Muslim and was registered in Narayanapuram Area Muslim Jamath, the appellants demanded dowry of 50 sovereigns of gold jewels and Rs.50,000/- cash. There is absolutely no evidence to show that the family members of the appellants demanded dowry except the allegations made in the petition and the same being repeated in the evidence of the respondent. Further, while the respondent alleged that the appellants continuously demanded dowry after marriage on so many occasions and harassed and treated her daughter cruelly and also drove her out, there is no evidence in support of those allegations. In fact, in both the petition as well as in the evidence, not even the date, time and other particulars are given about the demand of dowry, harassment and torture. It is an admitted fact that no complaint was made to the Police regarding the alleged harassment and cruelty meted out to the daughter of the respondent. It is also an admitted fact that the matter was not taken to some Panchayat. The respondent alleged that her husband and her three relatives viz., brothers of her husband, took her daughter to the house of the appellants whenever she was driven out of her house. But the respondent did not even choose to examine her husband as well as the relatives mentioned in the application in support of her claim. No reason was given for not examining the witnesses, particularly when allegations were made by the respondent against the appellants. It is also necessary and relevant to examine the husband of the respondent to depose before the Court that he was willing to support the minor and that the respondent’s action was fully supported by him. In spite of there being no evidence at all, except the criminal case filed in Crime No.323/2007 under Section 304(B) IPC on the file of the Oomatchikulam Police Station, Madurai, on the death of the daughter of the respondent, by committing suicide by hanging, the Trial Court recorded a finding that the family members of the appellants harassed the daughter of the respondent. The findings of the Trial Court is extracted hereunder:

“….. So, it is also seen that the respondent’s family constantly harassed Sainammal about the marriage between the 1st respondent and Sainammal. The respondent stated as only because the petitioner not maintaining the parents daughter relationship with Sainammal and only because of that she committed suicide. But it is seen that because of the marriage, Sainammal was put in continuous torture by his family members…..”

14.In my considered view, the aforesaid findings are not supported by any evidence at all. In fact, the Trial Court did not rely on any piece of evidence in support of such a conclusion, except merely recording its ipse dixit. Therefore, I am of the view that there is no evidence to show that the daughter of the respondent was harassed and put to cruelty by the first appellant and his family members. However, the issue as to the custody of minor child does not rest there. It is a different matter if there is an evidence that the first appellant and his family members harassed and cruelly treated the daughter of the respondent demanding dowry and that resulted in her committing suicide. As stated above, there is no evidence to come to such a conclusion. Hence, the issue as to custody of the minor child has to be decided by looking into other relevant factors.

15.The Trial Court entrusted custody of the minor child on the other ground that the appellants are facing criminal case in Crime No.323/2007 and the appellants 1 and 2 were arrested and enlarged on bail and the criminal case is still pending against them. That is, pendency of the criminal case is cited against the appellants for handing over the child to the respondent. The other reason given by the Trial Court is that the first appellant was not doing any job and that the contention of the appellants that the first appellant was doing fibre business was disbelieved. Ex.R.7, a partnership deed to prove the fibre business of the first appellant was disbelieved by the Trial Court. It has to be seen whether the Trial Court is justified in appointing the respondent as Guardian to hand over the child based on the above said reasons.

16.The learned counsel for the respondent sought to sustain the order of the Trial Court on the ground that the pendency of the criminal case is the relevant factor while deciding the custody of the minor child.

17.The learned counsel for the appellants assailed the findings of the Trial Court and contended that the Trial Court failed to see that the guiding factor in the matter of custody of a minor child is the paramount interest of the minor child and none else. Just because a criminal case is pending investigation against the appellants, that could not be cited as a reason to deny the custody of the minor child to the appellants.

18.At this juncture, it is relevant to record my views on the production of the minor child in my chambers pursuant to the direction issued by this Court. Both the parties were present in my Chambers and the child was also present. I enquired the minor child. She completed five years of age. The child could not form an intelligent preference as contemplated under Section 17(3) of the Guardians and Wards Act, 1890 as it was only five years old. The child was put in a School and was in good health. However, I found that the child was not even able to recognise the respondent as her grandmother. The respondent also admitted that she did not see the child after the death of her daughter. When her daughter died on 29.07.2007, the child was about 1 . years old. Even at that time, the child was growing in the family of the appellants. According to the child, the respondent was a stranger. The child was very comfortable with her father’s family i.e. the first appellant and other appellants. It is also pertinent to note that the Trial Court did not choose to enquire into these aspects by directing the appellants to produce the child during the trial. This aspect was not taken note of by the Trial Court.

19.In this regard, Section 17 of the Guardians and Wards Act, 1890 is usefully extracted hereunder:

“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.

(4) ***

(5) The Court shall not appoint or declare any person to be a guardian against his will.”

20.The learned counsel for the appellants specifically raised the following grounds in this appeal and contended that the respondent did not take any steps by seeking interim custody or visitation right to see the minor child.

(11) That the learned trial court ought to have appreciated the evidence of the Respondent side evidence since the Respondent admitted in the cross examination that she did not take any steps to see the minor child Mariyam Parija either by herself or through the relatives.

(12) That the learned trial court ought to have considered that the Respondent admitted in her cross examination that she did not know the address of the Appellants. It clearly shows that the Respondent never visit the Appellants’ home to see either the deceased Sainammal or the minor child Mariyam Parija.”

21.It is also relevant to note the admission made by the respondent during the cross examination, which reads as follows:

“ikdh; FHe;ijia ghh;f;fntz;Lbkd;W ehd; Kaw;rp bra;atpy;iy. ……. cwtpdh; \ykhf vd; ngj;jpia ghh;f;f eltof;if vLf;ftpy;iy/”

22.It has been held consistently in both the judgments cited by the learned counsel for the appellants as well as the respondent that the paramount interest of the minor child is the sole criteria in deciding the custody of a minor child and all other factors would give way to the interest of the child.

23.In the Division Bench judgment of the Kerala High Court in POOLAKKAL AYISAKUTTY VS. PARAT ABDUL SAMAD reported in AIR 2005 KERALA 68 relied on by the learned counsel for the appellants, the father of the child filed a petition before the Family Court seeking custody of his minor son who was in the custody of the maternal grandparents. The mother of the child had committed suicide. After her death, the child was brought up by the maternal grandparents. The Family Court allowed the application of the father. The matter was taken up by the maternal grandparents to the High Court of Kerala. The High Court of Kerala reversed the order of the Family Court and granted visitation right to the father. The reason given by the High Court was that the child was living with the maternal grandparents since the death of his mother and the transplantation at this stage would badly affect the child. Subsequently, on the death of the maternal grandfather, the father of the minor child again filed an application for custody in the changed circumstances. The Family Court, allowed the application. This time, the High Court upheld the order of the Family Court rejecting the contention of the grandmother that as per Mohammedan Law, the maternal grandmother is entitled to the custody of the minor child. The High Court held that taking into account the paramount interest of the child, as the maternal grandfather died, the Family Court was correct in giving the custody of the minor child to the father.

24.The aforesaid judgment makes it clear that the living of the child with the maternal grandparents weighed with the High Court while reversing the earlier order of the Family Court. By applying the said principles, I am also of the view that since the minor child in this appeal is living ever since her birth with the appellants, I do not want to disturb the existing arrangement, particularly after I saw that the child was not even able to identify and recognise the respondent herein as her maternal grandmother.

25.In the judgment of the Honourable Apex Court in ANJALI KAPOOR VS. RAJIV BAIJAL reported in 2009 (7) SCC 322, a female child was born on 20.05.2001 and the mother of the child died at the time of delivery. The child was taken from the Hospital by the maternal grandmother. Questioning the same, the father sought custody of the child being the natural guardian, in the Family Court. The Family Court rejected the application of the father on the ground that the father was not in a good financial position and he was taking loans from several persons including the maternal grandparents of the child. The same was reversed by the Madhya Pradesh High Court. The matter was taken to the Honourable Apex Court. The Honourable Apex Court held that the paramount consideration is the welfare of the minor child. While holding so, the Honourable Apex Court has relied on a decision of this Court in MUTHUSWAMI CHETTIAR VS. K.M. CHINNA MUTHUSWAMI MOOPANAR reported in AIR 1935 MAD 195 and held as follows:

“18. At this stage, it may be useful to refer to the decision of the Madras High Court, to which reference is made by the High Court in the case of Muthuswami Moopanar wherein the Court has observed, that, if a minor has for many years from a tender age lived with grandparents or near relatives and has been well cared for and during that time the minor’s father has shown a lack of interest in the minor, these are circumstances of very great importance, having bearing upon the question of the interest and welfare of the minor and on the bona fides of the petition by the father for their custody……”

The Honourable Apex Court also noted another English judgment in para 19 and the same is also extracted hereunder:

“19. In McGrath (infants), Re5 it was observed that: (Ch p.148)

“… The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.”

Ultimately, the Honourable Apex Court allowed the appeal and vested the custody in favour of the maternal grandmother. In para 26, the Honourable Apex Court held as follows:

“26. Ordinarily, under the Guardian and Wards Act, the natural guardians of the child have the right to the custody of the child, but that right is not absolute and the courts are expected to give paramount consideration to the welfare of the minor child. The child has remained with the appellant grandmother for a long time and is growing up well in an atmosphere which is conducive to its growth. It may not be proper at this stage for diverting the environment to which the child is used to. Therefore, it is desirable to allow the appellant to retain the custody of the child.”

The aforesaid judgment also makes it clear that if the child remained with the father and paternal grandparents for a long time and was growing up well in an atmosphere which is conducive to its growth, it is not proper at this stage for diverting the environment to which the child is used to.

26.In the judgment of the Bombay High Court in IRFAN AHMED SHAIKH VS. MUMTAZ AND ANOTHER reported in AIR 1999 BOMBAY 25, relied on by the learned counsel for the appellants, the custody of the minor child was claimed by the mother as well as the father. Both got divorce and the mother was remarried to a stranger. The father of the minor child claimed that as per Mohammedan Law, his wife incurred disqualification and that he was not married. But during the enquiry by the Court, the child refused to go with the father and wanted to live with the mother and child was also all along living with the mother. In those circumstances, the custody of the child with the mother was upheld by the Bombay High Court. In this regard, para 15 of the said judgment is extracted hereunder:

“15.It is therefore, obvious that the treatment to be given to the child is of paramount importance. We, therefore, must consider that the step father with whom the child’s mother had remarried treats the child kindly or not. In our case there is no evidence or any material or even allegation made by the petitioner that Husna is being ill-treated by the step father or is not properly looked after by him. Facts and evidence in our case are to the contrary.”

At this juncture, it is also relevant to take note of the arguments advanced by the learned counsel for the respondent that the first appellant therein got remarried and that is also cited as another circumstance for denying custody to him, has to be rejected, following the aforesaid judgment.

27.In the judgment of the Honourable Apex Court in KIRTIKUMAR MAHESHANKAR JOSHI VS. PRADIPKUMAR KARUNASHANKER JOSHI reported in 1992 (3) SCC 573, relied on by the learned counsel for the appellants, the mother died on 12.01.1991 and the cause of the death was cardio-respiratory arrest due to some chemical poisoning. Before death, she gave birth to two children viz., one male child on 20.07.1979 and one female child on 12.08.1981. The father of the children was facing criminal charge under Section 498-A IPC. The minor children lived with the brother of the deceased mother i.e. maternal uncle. The maternal uncle as well as the father of the children filed applications before the District Court claiming custody of the children. Before the matter was decided in the District Court, by various other applications, the matter reached the Honourable Apex Court. The Apex Court directed the production of the children and the Court had talked to the children. The Honourable Apex Court took into account that the children were living with the maternal uncle and came to the conclusion that though the father has a preferential right to the custody of the minor children, the children were to be put in the custody of the maternal uncle as per the wishes of the children. In para 7 of its judgment, the Honourable Apex Court held as follows:

“7. Pursuant to our order dated March 27, 1992 the children namely, Vishal and Rikta are present before us in these chamber-proceedings. Their maternal uncle Kirtikumar and their father Pradipkumar are also present. Vishal and Rikta both are intelligent children. They are more matured than their age. We talked to the children exclusively for about 20/25 minutes in the chamber. Both of them are bitter about their father and narrated various episodes showing ill-treatment of their mother at the hands of their father. They categorically stated that they are not willing to live with their father. They further stated that they are very happy with their maternal uncle Kirtikumar who is looking after them very well. We tried to persuade the children to go and live with their father for some time but they refused to do so as at present. After talking to the children, and assessing their state of mind, we are of the view that it would not be in the interest and welfare of the children to hand over their custody to their father Pradipkumar. We are conscious that the father, being a natural guardian, has a preferential right to the custody of his minor children but keeping in view the facts and circumstances of this case and the wishes of the children, who according to us are intelligent enough to understand their well-being, we are not inclined to hand over the custody of Vishal and Rikta to their father at this stage.”

This judgment also would support the contention of the appellants herein.

28.As rightly contended by the learned counsel for the appellants, the Division Bench judgment of this Court in O.ULAGANATHAN VS. K.R.G. CHANDRASEKAR AND OTHERS reported in 1993 (II) MLJ 201 makes it clear that mere pendency of a criminal case cannot be cited as a ground to deny the custody of the minor child, though the said judgment arose in a Habeas Corpus Petition. Para 14 of the said judgment refers to a judgment of this Court relating to custody and the same is extracted hereunder:

“14.In the decision S.Abboy Naidu V. R.Sundara Rajan, A.I.R. 1989 Mad.129 : (1988) 1 D.M.C. 516: (1988) 2 Hind.L.R.179, custody was sought for by the father under Sec.26 of the Guardian and Wards Act. The father was acquitted of a criminal complaint as regards suspicious death of his wife, the mother of the minor child. The father sought for custody of the minor having possessed of sufficient means and having been assisted by his parents for looking after the minor. The maternal grand parents resisted that application. But they were old and not self dependent. This Court (K.M.Natarajan, J.) held that the father cannot be denied of the custody of the minor child merely because the revision is pending against his acquittal…….”

29.In fact, in the judgment of the Honourable Apex Court in NIL RATAN KUNDU AND ANOTHER VS. ABHIJIT KUNDU reported in VI (2008) SLT 785 relied on by the learned counsel for the respondent, the respondent was the father of the minor child. His wife gave birth to a male child on 18.11.1999 and she died on 10.04.2004 and a criminal case was lodged against the respondent therein and his mother under Sections 498-A and 304 IPC. After the death of the mother, the child was under the custody of the maternal grandparents. The child was in a sick condition while the child was handed over to the maternal grandparents. But the Trial Court entrusted the custody of the child to the father. The Calcutta High Court also confirmed the same, though the child was hostile towards his father when he was produced before the Calcutta High Court. The matter reached the Honourable Apex Court. The Honourable Apex Court enquired the minor child. The minor child expressed his intention to live with his maternal grandparents. In those circumstances, the Honourable Apex Court reversed the orders of the High Court as well as the Family Court and custody was given to the maternal grandparents. In this regard, para 84 of the judgment is extracted hereunder:

“84.We have called Antariksh in our chamber. To us, he appeared to be quite intelligent. When we asked him whether he wanted to go to his father and to stay with him, he unequivocally refused to go with him or to stay with him. He also stated that he was very happy with his maternal grandparents and would like to continue to stay with them. We are, therefore, of the considered view that it would not be proper on the facts and in the circumstances to give custody of Antariksh to his father, the respondent herein.”

It is also relevant that the Honourable Apex Court found that the mother of the father viz., his paternal grandmother was an accused and absconded and the child was found sick from the house of the respondent therein. In those circumstances, the child was taken by the maternal grandparents and was living with them. In this regard, para 71 of the said judgment is extracted hereunder:

“71.Now, it has come in evidence that after the death of Mithu (mother of Antariksh) and lodging of first information report by her father against Abhijit (father of Antariksh) and his mother (paternal grandmother of Antariksh), Abhijit was arrested by the police. It was also stated by Nil Ratan Kundu (father of Mithu) that mother of accused Abhijit (paternal grandmother of Antariksh) absconded and Antariksh was found sick from the house of Abhijit.”

The Honourable Apex Court also held that the Trial Court failed to direct the parties to produce the child to ascertain the wishes of the child. In this regard, paras 73 and 74 of the said judgment are extracted hereunder:

“73.As already noted, Antariksh was aged six years when the trial court decided the matter. He was, however, not called by the court with a view to ascertain his wishes as to with whom he wanted to stay. The reason given by the trial court was that none of the parties asked for such examination by the court.

74.In our considered opinion, the court was not right. Apart from the statutory provision in the form of sub-section (3) of Section 17 of the 1890 Act, such examination also helps the court in performing onerous duty, in exercising discretionary jurisdiction and in deciding the delicate issue of custody of a tender-aged child. Moreover, the final decision rests with the court which is bound to consider all questions and to make an appropriate order keeping in view the welfare of the child. Normally, therefore, in custody cases, wishes of the minor should be ascertained by the court before deciding as to whom the custody should be given.”

Furthermore, while rendering judgment, the Honourable Apex Court took note of the judgment in KIRTIKUMAR MAHESHANKAR JOSHI VS. PRADIPKUMAR KARUNASHANKER JOSHI reported in 1992 (3) SCC 573 that was considered above. The Honourable Apex Court also laid down that the Court should give due weightage to the child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. In this regard, para 56 of the said judgment is extracted hereunder:

“56.In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.”

Hence, this judgment, far from supporting the respondent, supports the case of the appellants.

30.In the judgment of the Uttarakhand High Court relied on by the learned counsel for the respondent in YOGESH KUMAR GUPTA VS. M.K.AGARWAL reported in AIR 2009 UTTARAKHAND 30, the mother of the minor child died in a suspicious circumstances and a case was registered against the father under Sections 498-A and 304 (B) IPC. The children lived with the maternal grandparents. When the Court directed the child to be produced before the Court, the father did not even bother to appear to see the children. In those circumstances, relying on the judgment of the Honourable Apex Court in NIL RATAN KUNDU AND ANOTHER VS. ABHIJIT KUNDU reported in 2008 AIR SCW 5769, the Uttarakhand High Court granted custody in favour of the maternal grandparents. This judgment also supports the case of the appellants herein as the minor child in the present appeal is living with the first appellant herein along with the second and third appellants, who are the paternal grandparents.

31.The Patna High Court judgment relied on by the learned counsel for the respondent in BIMLA DEVI VS. SUBHAS CHANDRA YADAV NIRALA reported in AIR 1992 PATNA 76 does not apply to the facts and circumstances of this case as the respondent in the said case faced a criminal charge of murder of his wife, that is the mother of the minor child. Furthermore, the Patna High Court, in para 15 of its judgment, recorded as follows:

“15…….. Furthermore, it has come in evidence that the girls were born in Gaya and that they were brought up by the present appellant and her husband where they were properly looked after….”

That is, even before the death of the mother, the children were brought up by the maternal grandparents. In those circumstances, custody was granted to the maternal grandmother. Hence, the said judgment is not applicable to the facts and circumstances of this case.

32.Taking into account the facts and circumstances of the case and the paramount interest of the child and more particularly the fact that the minor child viz., Mariyam Parija is living with her father and the paternal grandparents, that is the appellants herein, from her birth and that the child does not even identify and recognise the respondent as her maternal grandmother, I am of the view that the Trial Court erred in appointing the respondent as Guardian and granted custody of the minor child to the respondent. While considering the paramount interest of the minor, it is not relevant that whether the father of the child is in regular employment or not. In fact, the child is put in a school and she is in a healthy condition and proper medical care is also given and there is no allegation of any ill-treatment to the child. Furthermore, the Trial Court did not look into the evidence of R.W.4, an independent witness, who deposed that he was doing fibre business along with the first appellant.

33.Hence, the judgment and decree dated 31.12.2009 passed in G.W.O.P.No.27 of 2007 by the learned First Additional District Judge, Madurai is hereby set aside. However, it is made clear that the respondent is entitled to seek visitation rights. Since the respondent did not come with any application, I leave it to the respondent to make an appropriate application before the concerned Court seeking visitation right.

34.With these observations, the Civil Miscellaneous Appeal is allowed. No costs. Consequently, connected miscellaneous petition is closed.

TK

To
The First Additional District Judge

Girl Child Custody to the Father- Kerala HC

Kerala High Court

Merlin Thomas vs C.S. Thomas on 18 February, 2003

Bench: K A Gafoor, K Thankappan
JUDGMENT

Thankappan, J.

1. Both the appeals are filed against the order of the Family court, Kottayam at Ettumanoor in O.P. (G & W) No. 554/2000. The custody of a minor child, Arya Rose Mary, aged 6 years, is the subject matter of the Original Petition. The marriage between the petitioner and the respondent was solemnised on 11th February, 1995 at Cathedral Church, Changanacherry as per Christian rites. The child was born on 3-1-1996. The married life between the parties were happy for some time. The petitioner/husband is young and well educated and is working in the office of the Divisional Office, LIC of India, Kottayam. The respondent wife is also young and educated. Later, the marital relationship of the petitioner and the respondent became strained due to suspicious nature of the parties and even alleging mental disorder against each other. At last the respondent left the company of the petitioner and started living, with the child, in her parental house. Mediators including heads of religious institutions intervened and attempted to bring them together. All these attempts became futile. Later, the husband was forced to file O.P. No. 528/2000 before the Family court for a decree of restitution of conjugal rights and the Original Petition is pending. During the pendency of the said Original Petition, counselling was conducted and it was ordered that both of them may be subjected to psychiatric counselling and treatment. As the petitioner was not agreeable for this, he filed O.P. No. 13762/2000 before this court and got a direction to the Family Court to consider and pass appropriate orders in O.P. (G&W) No. 554/2000. Subsequently during the pendency of O.P. No. 528/2000 the Family Court considered O.P. (G&W) No. 554/2000 and allowed the original petition on the following directions :

For better education of the child custody is given to the petitioner on 5 days in a week i.e.. Monday to Friday and custody given to the respondent on Saturday and Sunday. During summer vacation 1st half of the period custody given to the Respondent and the 2nd half given to the petitioner. The petitioner shall send the child in the house of the respondent in the F. N. of Saturday and the respondent shall return the custody of the child to the petitioner in the afternoon of Sunday at 5 P. M., so that the education of the child, its welfare could be protected. Hence, the petitioner and respondent have come up in appeal.

2. It was alleged in the petition that the respondent/wife is adamant and her brothers and other family members are not looking after the affairs of the child. If the child is allowed to stay with the respondent, it will spoil her life as the child will not get better education or proper care. The respondent/wife left the company of the petitioner only because of the instigation of her brothers and the alleged mental disorder of the petitioner/husband is baseless. It is alleged that the wife being the last among the 11 children of her family and the paternal family of the wife is almost like a joint family, the child will not get proper care even if it is allowed to stay with her mother. The Family Court found that the petitioner/father is well educated and well placed so as to look after the child. It is also found that for the welfare and care of the child the custody of the child should have been given to the petitioner /father on certain conditions.

3. We have summoned couple as well as the child. We have ascertained the desire of the child and also we have attempted to minimise the animosity of the husband and the wife taking note of pendency of O. P. No. 528/2000, for a decree of restitution of conjugal right, before the Family Court. But we could not be successful. Hence, we consider only the custody of the child for the time being.

4. This is a matter to be considered by this Court very cautiously. The consideration in ordering the custody of a minor child shall be the welfare of the child. The emotions of either of the parents does not have much weight. Children are like lighted lamps and they have to live like lamps with least scratch in their life. The children are like petals in a flower, least scratch will make crack in their hearts. The company, affection, protection, affinity and emotional console are required to a child. These are only consideration, but the paramount consideration is the welfare. The welfare means educational, economical, religious, mental or moral well-being. For ordering the custody of a minor child the court shall be guided not only with the consistency of the law which governs the right of the guardian either natural or otherwise, father or mother but the education, character and capacity of the proposed guardian also be considered. Above all these aspects as it is held in Rosy Jacob v. Jacob A. Chakramakkal, AIR 1973 SC 2090, that the controlling consideration governing the custody of the children was the welfare of the children and not the right of their parents. In the case in hand the Family Court found that the petitioner husband, father, is well placed and is having a job in the L. I. C. of India and is capable to give better education to his child. It considered all these aspects and found ordering custody of the child to the petitioner/husband is better for the welfare of the child. It is also to be noted that the petitioner/father is the only son to his parents. Presence of the grand-daughter will also be a console to the old parents of the petitioner. At the same time considering the allegations now levelled against the petitioner as well as the mother in the proceedings pending before the Family Court, though it is a matter to be considered on evidence and whatever may be the outcome, now we are only concerned with the welfare of the child. We see that the order now made by the Family Court is in accordance with the principles enunciated by judicial pronouncements as well as the guiding principles contained in the provisions of the Guardians and Wards Act, 1890. But we cannot ignore certain facts, we have ascertained.

5. It is to be noted that the child is a girl child. The company of the mother is more affectionate and it will give certain protection to the child in developing her personality, intelligence and character. But at the same time it is a fact that the court below already found that the father is capable of protecting the interest of the child and the presence of the child in the paternal house will give some console to the old parents of the husband. We have assessed the wishes of the child in Chambers and we found that the child is very anxious to have the company of the father, the paternal grand parents as well as the mother. Hence, the order passed by the Family Court is modified to the extent that the custody of the child be continued with the respondent/mother provided the petitioner shall get the child every second Saturday and Sunday in every month and during a full vacation period, preferably X mas vacation.

6. With these modifications we dispose of both the appeals.

No maintenance in DV if maintenance already passed in Crpc 125

Delhi High Court

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: August 25, 2010

Date of Order: 30th August, 2010

+ Crl.M.C.No. 130/2010 & Crl.M.A.No. 504/2010

% 30.8.2010 Rachna Kathuria … Petitioner Through: Mr. P.Narula, Advocate

Versus

Ramesh Kathuria … Respondent Through:Mr. S.S.Saluja, Advocate

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the reporter or not? Yes.

3. Whether judgment should be reported in Digest? Yes. JUDGMENT

By this petition under Section 482 Cr.P.C. the petitioner has assailed an order dated 22nd October 2009 of learned Additional Sessions Judge passed in appeal whereby the appeal of the petitioner was dismissed.

2. The petitioner filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short the Act) and along with it she filed an application under Section 29 of the Act seeking maintenance. The learned Court of MM observed that petitioner was living separate from her husband since 3rd January, 1996. She had filed a Civil Suit under Hindu Adoption and Maintenance Act and an application under Section 125 Cr.P.C. and she was getting a total maintenance of ` 4000/- per month from the respondent. In case the petitioner felt that maintenance awarded to her was not sufficient, the proper course for her was to approach the concerned Court for modification of the order as already observed by the High Court in a petition filed by her earlier and the application was dismissed. Against this petitioner preferred an appeal. The learned Additional District Judge dismissed the appeal and the petitioner has preferred this petition.

3. It must be understood that the Protection of Women from Domestic Violence Act, 2005 does not create any additional right to claim maintenance on the part of the aggrieved person. It only puts the enforcement of existing right of maintenance available to an aggrieved person on fast track. If a woman living separate from her husband had already filed a suit claiming maintenance and after adjudication maintenance has been determined by a competent court either in Civil Suit or by Court of MM in an application under Section 125 Cr.P.C. she does not have a right to claim additional maintenance under the Act. The Court of MM under the Act has power to grant maintenance and monetary reliefs on an interim basis in a fast track manner only in those cases where woman has not exercised her right of claiming maintenance either under Civil Court or under Section 125 Cr.P.C. If the woman has already moved Court and her right of maintenance has been adjudicated by a competent Civil Court or by a competent Court of MM under Section 125 Cr.P.C., for any enhancement of maintenance already granted, she will have to move the same Court and she cannot approach MM under the Protection of Women from Domestic Violence Act by way of an application of interim or final nature to grant additional maintenance. This petition is not maintainable and is hereby dismissed.

August 30, 2010 SHIV NARAYAN DHINGRA, J. vn

SC: Wife to contiribute to maintenance of child

Cites 13 docs – [View All]

The Hindu Marriage Act, 1955

Section 26 in The Indian Penal Code, 1860

The Indian Penal Code, 1860

Section 20 in The Hindu Marriage Act, 1955

Section 18 in The Hindu Marriage Act, 1955

Citedby 6 docs – [View All]

Thulasidharan,S/O.Late … vs Shine,W/O.Thulasidharan,Aged … on 30 March, 2010

Karthik vs Minor K.Keerthana on 18 February, 2011

Radhika Narang And Ors vs Karun Raj Narang And Anr on 16 January, 2009

Nirmal Sharma vs Sham Lal And Ors. on 29 September, 2006

Tilak Kumari & Anr. vs Sh. Anand on 1 June, 2001

Supreme Court of India

Padmja Sharma vs Ratan Lal Sharma on 28 March, 2000

Equivalent citations: AIR 2000 SC 1398, I (2000) DMC 621, 2000 II OLR SC 85

Author: D Wadhwa

Bench: D Wadhwa, M Shah

JUDGMENT

D.P. Wadhwa, J.

1. Appellant, the wife, whose marriage with the respondent has since been dissolved by decree of divorce on the ground of cruelty on the petition filed by her, has filed this appeal not only seeking enhanced maintenance for two minor children of the marriage but also for claiming the same from the date of application filed under Section 26^1 of the Hindu Marriage Act, 1955 (for short the ‘Act’) in the Family Court, Jaipur Appellant is also aggrieved by the order of the Courts below not granting her full claim of streedhan, litigation expenses, etc.

2. Both the parties are Hindu. Their marriage was solemnized in accordance with Hindu rites on May 2, 1983. First child, a son, was born on January 27, 1984 and the second child, also a son, was born on June 28, 1985. Wife filed petition for dissolution of marriage on May 21, 1990. She also prayed therein for return of her ‘streedhan,’ custody and guardianship of the children and also for their maintenance. At the same time she also filed an application under Section 125 of CrPC (Code).

3. On August 2, 1991 wife filed a petition under Section 26 of the Act in the Family Court claiming maintenance @ Rs. 2575/- per month for both the children. In the affidavit supporting the application, however, maintenance was claimed @ Rs. 2.500/- per month for both the children. It was pointed out that husband was getting a salary of Rs. 6233.40 per month. Wife also claimed a sum of Rs. 1.585/- as admission fee in schools for the children and Rs. 5.000/- as litigation expenses.

4. Family Court by order dated April 7, 1992 granted maintenance under Section 125 of the Code @ Rs. 250/- per month for each child. On April 30, 1992 Family Court awarded a further sum of Rs. 250/- per month for each child as interim maintenance under Section 26 of the Act. Family Court also framed issues relating to the custody, guardianship and maintenance of the minor children and also regarding ‘streedhan.’

5. On October 27, 1995 wife filed another application under Section 26 of the Act wherein she drew the attention of the Court to her earlier application filed on August 2, 1991, Now she claimed Rs. 2000/- per month for each child. She said salary of the husband had since been increased to Rs. 12,225/ – in August, 1995. On August 26, 1996 yet another application was filed by wife under Section 26 of the Act. Now she wanted maintenance for the elder child @ Rs. 3,500/- per month and for the younger child @ Rs. 3,000/- per month. It was pointed out that the salary of the husband was Rs. 13,683/- per month and thereafter from August, 1997 it was going to be increased to Rs. 14,550/- per month.

6. Family Court by order dated September 13, 1997 consolidated both the proceedings – one under Section 13 of the Act for dissolution of the marriage and the other under Section 26 of the Act. On October 4, 1997 Family Court granted decree of divorce in favour of the wife dissolving the marriage between her and the respondent. Against claim of Rs. 1,80,000/- towards ‘streedhan’ Family Court granted a decree of Rs. l,00,000/- as cost of the Articles which prayer was granted in the alternative if the respondent did not return the article mentioned by wife in her petition. It was also ordered that both the children till they attain majority, should be’ in the custody of the mother, the appellant, and maintenance for each of the child was awarded @ Rs. 500/- per month from October 4, 1997. A sum of Rs. 1,000/- was awarded as cost of the litigation to the wife:

7. Wife took the matter to the High Court seeking enhanced amount of maintenance of the children and decree for the full amount of Rs. 1,80,000/-. High Court by its impugned judgment, enhanced maintenance of the children from Rs. 500/- per month to Rs. 1,000/- per month effective from the date of the order of the Family Court dated October 4, 1997 and awarded Rs. 500/- per month for each child from the date of the application. High Court observed, though in our view not correctly, that “it is an incumbent liability on the part of the father to bear the cost of education and the maintenance expenses for the two children….” High Court also observed that the respondent was “admittedly employed in a responsible position in the Reserve Bank of India where his gross pay packet amounts to Rs. 13.000/- per month.” During the course of hearing we have been told that the husband is employed as a clerk in the Reserve Bank of India while the appellant-wife is a lecturer in a Government college In Rajasthan. High Court rejected the prayer of the wife for enhancement of any amount from Rs. l,00,000/. High Court made certain directions for the husband to meet the children and with that we are not concerned. High Court disposed of the appeal without any order as to costs. Still the wife felt aggrieved and sought leave to appeal to this Court under Article 136 of the Constitution, which we granted. By an interim order passed on February 22, 1999 it was directed by this Court that by way of interim relief maintenance for each of the child be paid @ Rs. 1,500/- per month by the respondent husband.

8. This Court in an appeal under Article 136 of the Constitution is not going to re-appreciate the evidence led before the Family Court. There is a concurrent finding of award of Rs, 1,00,000/- to the wife though in the alternative being the cost of the articles presented at the time of the marriage which we are not going to disturb. As far as costs and special costs are concerned that again is within the discretion of the Court and unless some weighty reason is shown to us we again do not think that we should unsettle the payment of award of costs by the Family Court and nor payment of costs by the High Court. Appellant says she has been harassed persistently by the husband in delaying the trial before the Family Court. But then husband also has a grievance that in the Family Court he could riot get the services of a lawyer though the wife was represented by her father, who himself is a lawyer and while her father would argue in the Court she would remain mute.

9. Respondent before us has not appeared instead of notice to him. We have heard the arguments of the wife ex parte. On February 28, 2000 an application was filed by the appellant for placing on record additional documents which are all of the period after filing of this appeal. No notice has been given to the respondent of this application. The purpose of the application appears to be to further enhance the amount of maintenance taking into account the charged circumstances as the salary of the respondent-husband is stated to have increased by passage of time. Various documents like receipts for payment of school fees buying of books school bags etc. have been filed. We are not inclined to permit this application at this stage. If circumstances have changed for enhancement of maintenance appellant can approach the Family Court again as an order under Section 26 of the Act is never final and decree passed thereunder is always subject to modification.

10. Maintenance has not been defined in the Act or between the parents whose duty it is to maintain the children. Hindu Marriage Act, 1955, Hindu Minority and Guardanship Act, 1956, Hindu Adoptions and Maintenance Act, 1956 and Hindu Succession Act, 1956 constitute a law in a coded form for the Hindus. Unless there is anything repugnant to the context definition of a particular word could be lifted from any of the four Acts constituting the law to interpret a certain provision. All these Acts are to be read in conjunction with one another and interpreted accordingly. We can, therefore go to Hindu Adoptions and Maintenance Act, 1956 (for short the ‘Maintenance Act’) to understand the meaning of the ‘maintenance’. In Clause (b) of Section 3 of this Act “maintenance includes (i) in all cases, provisions for food, clothing residence, education and medical attendance and treatment; (ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage.” and under Clause (c) “minor means a person who has not completed his or her age of eighteen years,” Under Section 18 of Maintenance Act a Hindu wife shall be entitled to be maintained by her husband during her life time. This is of course subject to certain conditions with which we are not concerned. Section 20^2 provides for maintenance of children and aged parents. Under this Section a Hindu is bound, during his or her life time, to maintain his or her children. A minor child so long as he is minor can claim maintenance from his or her father or mother. Section 20 is, therefore, to be contrasted with Section 18. Under this Section it is as much the obligation of the father to maintain a minor child as that of the mother. It is not the law that how affluent mother may be it is the obligation only of the father to maintain the minor.

11. In the present case both the parents are employed. If we refer to the first application filed under Section 26 of the Act by the wife she mentioned that she is getting a salary of Rs. 3,100/- per month and husband is getting a salary of Rs. 5.850/- per month. She is therefore, also obliged to contribute in the maintenance of the children. Salaries of both the parents have since increased with the course of time. We believe that in the same proportion, may be perhaps in the case of an employee of Reserve Bank of India at somewhat higher rate. If we take approximate salary of husband is twice as much as that of the wife, they are bound to contribute for maintenance of their children in that proportion. Family Court has already fixed a sum of Rs. 250/- per month for each of the child under Section 125 of the Code. That amount we need not touch.

12. Considering the overall picture in the present case we are of the view that a sum of Rs. 3,000/- per month for each of the child would be sufficient to maintain him, which shall be borne by both the parent in the proportion of 2:1. We, therefore, direct that respondent shall pay a sum of Rs. 2,000/- per month for each of the two children aforementioned from October 4, 1997, the date of the order of the Family Court. For the earlier period respondent shall pay Rs. 500/- per month for each of the child from the date of the application, i.e., August 2, 1991 and @ Rs. 1,000/ per month from the date of the second application, which is October 27, 1995 and (c) Rs. 1.500/- per month from the date of the third application, which is August 26, 1997. These amounts shall be apart from the amount which the respondent has already been paying to the children @ Rs. 250/- per month under Section 125 of the Code. Respondent shall be entitled to make adjustment of the amounts which he has already paid under orders of the Family Court. High Court or the interim order of this Court.

13. The appeal is thus partly allowed. There shall be no order as to costs as respondent has chosen not to appear.

1. 26. Custody of children. – In any proceeding under this Act, the Court may, from time to time, pass such interim orders and, make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, alter the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as right have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending and the Court may, also from time to time revoke, suspend or vary any such order and provisions previously made.

2. 20. Maintenance of children and aged parents. – (1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.

(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.

(3) The obligation of a person to maintain his or her aged or infirm parents or daughter who is unmarried extends insofar as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.

Explanation. – In this section “parent” includes a childless stepmother.

RIDICULOUS LANDMARK JUDGEMENT OF DELHI HC.

 folks this is infact a good judgement… Maintenance cases are dealt like a piece of shit… I am concerned if the lower court judges will appreciate such docs… as far as i have seen, they hardly understand or talk logic …..

 We can use this judgement to reverse tact… ie check the wife’s background in a similar way before a number is decided 🙂 atleast in High courts
 

* IN THE HIGH COURT OF DELHI AT NEW DELHI +

 CM(M) 79/2011 %

Date of decision: 12th September, 2011

PUNEET KAUR ….. Petitioner Through : Mr. Ashok Chhabra with Mr. Sunjayjyoti Singh Paul, Advs.                                                                                         versus INDERJIT SINGH SAWHNEY ….. Respondent Through : Respondent in person.

 CORAM :- THE HON’BLE MR. JUSTICE J.R. MIDHA

 1. Whether Reporters of Local papers may be allowed to see the Judgment?Y  2. To be referred to the Reporter or not? YES                                                                  3. Whether the judgment should be YES reported in the Digest?

JUDGMENT (ORAL) CM(M)No.79/2011 and CM No.1756/2011 1. The petitioner has challenged the order dated 26th November, 2010 whereby her application for maintenance under Section 24 of the Hindu Marriage Act was dismissed by the learned Trial Court.

2. The petitioner claimed maintenance and litigation expenses from her husband on the ground that she was unable to maintain herself and her two children aged 13 and 16 years.  The petitioner averred that she was not gainfully employed and was receiving interest income of about `8,000/- to `10,000/- per month from the investments whereas the monthly expenses of the children were to the tune of `25,000/- per month. The petitioner further averred that the respondent was running the business of transport in the name of Bakshi Transport Service and his income was more than `2,00,000/- to `3,00,000/- per month.

3. The respondent contested the above application before the learned Trial Court on the ground that the respondent was unemployed and had no income. The respondent averred that he was living like a pauper and had no money even for two proper meals a day. He also stated that he had no shelter. The respondent also alleged that the petitioner’s annual income was `3,00,000/- per month from three sources, namely `1,00,000/- to `2,00,000/- per month from business, `60,000/- per month from salary and `20,000/- per month from interest.

4. The learned Trial Court believed the respondent and held that there was no material record to show that the respondent had any income and, therefore, the petitioner’s application was dismissed.  5. In Bharat Hegde v. Saroj Hegde, 140 (2007) DLT 16, this Court laid down the following principles for fixing the maintenance under Section 24 of the Hindu Marriage Act:- “4. Right to maintenance is an incident of the status from an estate of matrimony. Interim maintenance has an element of alimony, which expression in its strict sense means allowance due to wife from husband on separation. It has its basis in social conditions in United Kingdoms under which a married woman was economically dependent and almost in a position of tutelage to the husband and was intended to secure justice to her.

 5. Section 24 of the Hindu Marriage Act goes a step further inasmuch as it permits maintenance to be claimed by the husband even against the wife.

6. While considering a claim for interim maintenance, the court has to keep in mind the status of the parties, reasonable wants of the applicant, the income and property of the applicant. Conversely, requirements of the non applicant, the income and property of the non applicant and additionally the other family members to be maintained by the non applicant have to be taken into all. Whilst it is important to insure that the maintenance awarded to the applicant is sufficient to enable the applicant to live in somewhat the same degree of comfort as in the matrimonial home, but it should not be so exorbitant that the non applicant is unable to pay.

7. Maintenance awarded cannot be punitive. It should aid the applicant to live in a similar life style she/he enjoyed in the matrimonial home. It should not expose the non applicant to unjust contempt or other coercive proceedings. On the other hand, maintenance should not be so low so as to make the order meaningless. 

 8. Unfortunately, in India, parties do not truthfully reveal their income. For self employed persons or persons employed in the unorganized sector, truthful income never surfaces. Tax avoidance is the norm. Tax compliance is the exception in this country. Therefore, in determining interim maintenance, there cannot be mathematical exactitude. The court has to take a general view. From the various judicial precedents, the under noted 11 factors can be culled out, which are to be taken into consideration while deciding an application under Section 24 of the Hindu Marriage Act.

The same are:

1. Status of the parties.                                                                                                               2. Reasonable wants of the claimant.                                                                                    3. The independent income and property of the claimant.                                        4. The number of persons, the non applicant has to maintain.                                 5. The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home.                                                                                        6. Non-applicant’s liabilities, if any.                                                                                      7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.                                                                                              8. Payment capacity of the non applicant.                                                                        9. Some guess work is not ruled out while estimating the income of the non applicant when all the sources or correct sources are not disclosed.                 10. The non applicant to defray the cost of litigation.                                                11. The amount awarded under Section 125 Cr.PC is adjustable against the amount awarded under Section 24 of the Act.” (Emphasis Supplied) 6. In Jayant Bhargava v. Priya Bhargava, 181 (2011) DLT 602, this Court laid down the factors to be taken into consideration for ascertaining the income of the spouse. The relevant portion of the judgment is reproduced hereunder:- “12. It is settled position of law that a wife is entitled to live in a similar status as was enjoyed by her in her matrimonial home. It is the duty of the courts to ensure that it should not be a case that one spouse lives in a life of comfort and luxury while the other spouse lives a life of deprivation, poverty. During the pendency of divorce proceedings the parties should be able to maintain themselves and should be sufficiently entitled to be represented in judicial proceedings. If in case the party is unable to do so on account of insufficient income, the other spouse shall be liable to pay the same. (See Jasbir Kaur Sehgal (Smt.) v. District Judge, Dehradun and Ors., reported at V (1998) SLT 551, III (1997) CLT 398 (SC), II (1997) DMC 338 (SC) and (1997) 7 SCC 7). 13. A Single Judge of this Court in the case of Bharat Hegde v. Saroj Hegde, reported at 140 (2007) DLT 16 has culled out 11 factors, which can be taken into consideration for deciding the application under Section 24 of Hindu Marriage Act. 14. Further it has been noticed by the Courts that the tendency of the spouses in proceedings for maintenance is to not truthfully disclose their true income. However, in such cases some guess work on the part of Court is permissible. 15. The Supreme Court of India in the case of Jasbir Kaur (Smt.) (supra), has also recognized the fact that spouses in the proceedings for maintenance do not truthfully disclose their true income and therefore some guess work on the part of the Court is permissible. Further the Supreme Court has also observed that “considering the diverse claims made by the parties one inflating the income and the other suppressing an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be done by any mathematical precision”. 16. Although there cannot be an exhaustive list of factors, which are to be considered in guessing the income of the spouses, but the order based on guess work cannot be arbitrary, whimsical or fanciful.                                                                                                                                                                                              While guessing the income of the spouse, when the sources of income are either not disclosed or not correctly disclosed, the Court can take into consideration amongst others the following factors:

(i) Life style of the spouse;                                                                                                      (ii) The amount spent at the time of marriage and the manner in which marriage was performed;                                                                                                       (iii) Destination of honeymoon;                                                                                          (iv) Ownership of motor vehicles;                                                                                       (v) Household facilities;                                                                                                         (vi) Facility of driver, cook and other help;                                                                  (vii) Credit cards;                                                                                                                     (viii) Bank account details;                                                                                                    (ix) Club Membership;                                                                                                              (x) Amount of Insurance Premium paid;                                                                        (xi) Property or properties purchased;                                                                              (xii) Rental income;                                                                                                                 (xiii) Amount of rent paid;                                                                                                   (xiv) Amount spent on travel/ holiday;                                                                          (xv) Locality of residence;                                                                                                  (xvi) Number of mobile phones;                                                                                     (xvii) Qualification of spouse;                                                                                                  (xviii) School(s) where the child or children are studying when parties were residing together;                                                                                                                     (xix) Amount spent on fees and other expenses incurred;                                    (xx) Amount spend on extra-curricular activities of children when parties were residing together;                                                                                                         (xxi) Capacity to repay loan.

17. These are some of the factors, which may be considered by any court in guesstimating or having a rough idea or to guess the income of a spouse. It has repeatedly been held by the Courts that one cannot ignore the fact that an Indian woman has been given an equal status under Articles 14 and 16 of the Constitution of India and she has a right to live in dignity and according to the status of her husband. In this case, the stand taken by the Respondent with respect to his earning is unbelievable.” 7. In the facts and circumstances of this case, both the parties are directed to file their respective affidavits of assets, income and expenditure from the date of the marriage up to this date containing the following particulars:- 7.1 Personal Information (i) Educational qualifications. (ii) Professional qualifications. (iii) Present occupation. (iv) Particulars of past occupation. (v) Members of the family. (a) Dependent. (b) Independent. 7.2 Income (i) Salary, if in service. (ii) Income from business/profession, if self employed. (iii) Particulars of all earnings since marriage. (iv) Income from other sources:- (a) Rent. (b) Interest on bank deposits and FDRs. (c) Other interest i.e. on loan, deposits, NSC, IVP, KVP, Post Office schemes, PPF etc. (d) Dividends. (e) Income from machinery, plant or furniture let on hire.  (f) Gifts and Donations. (g) Profit on sale of movable/immovable assets. (h) Any other income not covered above . 7.3 Assets (i) Immovable properties:- (a) Building in the name of self and its Fair Market Value (FMV):-  Residential.  Commercial.  Mortgage.  Given on rent.  Others. (b) Plot/land. (c) Leasehold property. (d) Intangible property e.g. patents, trademark, design, goodwill. (e) Properties in the name of family members/HUF and their FMV. (ii) Movable properties:- (a) Furniture and fixtures. (b) Plant and Machinery. (c) Livestock. (d) Vehicles i.e. car, scooter along with their brand and registration number. (iii) Investments:- (a) Bank Accounts – Current or Savings. (b) Demat Accounts. (c) Cash. (d) FDRs, NSC, IVP, KVP, Post Office schemes, PPF etc. (e) Stocks, shares, debentures, bonds, units and mutual funds. (f) LIC policy. (g) Deposits with Government and Non-Government entities. (h) Loan given to friends, relatives and others. (i) Telephone, mobile phone and their numbers. (j) TV, Fridge, Air Conditioner, etc. (k) Other household appliances. (l) Computer, Laptop. (m) Other electronic gadgets including I-pad etc. (n) Gold, silver and diamond Jewellery. (o) Silver Utensils. (p) Capital in partnership firm, sole proprietorship firm.  (q) Shares in the Company in which Director. (r) Undivided share in HUF property. (s) Booking of any plot, flat, membership in Co-op. Group Housing Society. (t) Other investments not covered by above items. (iv) Any other assets not covered above. 7.4 Liabilities (i) OD, CC, Term Loan from bank and other institutions. (ii) Personal/business loan (a) Secured. (b) Unsecured. (iii) Home loan. (iv) Income Tax, Wealth Tax and Property Tax. 7.5 Expenditure (i) Rent and maintenance including electricity, water and gas. (ii) Lease rental, if any asset taken on hire. (iii) Installment of any house loan, car loan, personal loan, business loan, etc. (iv) Interest to bank or others. (v) Education of children including tuition fee. (vi) Conveyance including fuel, repair and maintenance of vehicle. Also give the average distance travelled every day. (vii) Premium of LIC, Medi-claim, house and vehicle policy. (viii) Premium of ULIP, Mutual Fund. (ix) Contribution to PPF, EPF, approved superannuation fund. (x) Mobile/landline phone bills. (xi) Club subscription and usage, subscription to news papers, periodicals, magazines, etc. (xii) Internet charges/cable charges. (xiii) Household expenses including kitchen, clothing, etc. (xiv) Salary of servants, gardener, watchmen, etc. (xv) Medical/hospitalization expenses. (xvi) Legal/litigation expenses. (xvii) Expenditure on dependent family members. (xviii)Expenditure on entertainment. (xix) Expenditure on travel including outstation/foreign travel, business as well as personal. (xx) Expenditure on construction/renovation and furnishing of residence/office. CM(M)  (xxi) Any other expenditure not covered above. 7.6 General Information regarding Standard of Living and Lifestyle (i) Status of family members. (ii) Credit/debit cards. (iii) Expenditure on marriage including marriage of family members. (iv) Expenditure on family functions including birthday of the children. (v) Expenditure on festivals. (vi) Expenditure on extra-curricular activities. (vii) Destination of honeymoon. (viii) Frequency of travel including outstation/foreign travel, business as well as personal. (ix) Mode of travel in city/outside city. (x) Mode of outstation/foreign travel including type of class. (xi) Category of hotels used for stay, official as well as personal, including type of rooms. (xii) Category of hospitals opted for medical treatment including type of rooms. (xiii) Name of school(s) where the child or children are studying. (xiv) Brand of vehicle, mobile and wrist watch. (xv) Value of jewellery worn. (xvi) Details of residential accommodation. (xvii) Value of gifts received. (xviii)Value of gifts given at family functions. (xix) Value of donations given. (xx) Particulars of credit card/debit card, its limit and usage. (xxi) Average monthly withdrawal from bank. (xxii)Type of restaurant visited for dining out. (xxiii)Membership of clubs, societies and other associations. (xxiv)Brand of alcohol, if consumed. (xxv)Particulars of all pending as well as decided cases including civil, criminal, labour, income tax, excise, property tax, MACT, etc. with parties name. 8. Both the parties are also directed to file, along with affidavit, copies of the documents relating to their assets, income and expenditure from the date of the marriage up to CM(M) No.79/2011  this date and more particularly the following:- (i) Relevant documents with respect to income including Salary certificate, Form 16A, Income Tax Returns, certificate from the employer regarding cost to the company, balance sheet, etc. (ii) Audited accounts, if deponent is running business and otherwise, non-audited accounts i.e. balance sheets, profit and loss account and capital account. (iii) Statement of all bank accounts. (iv) Statement of Demat accounts. (v) Passport. (vi) Credit cards. (vii) Club membership cards. (viii) Frequent Flyer cards. (ix) PAN card. (x) Applications seeking job, in case of unemployed person. 9. The affidavit and documents be filed within a period of four weeks with an advance copy to opposite parties who shall file their response within two weeks thereafter. 10. List for hearing on 9th November, 2011. 11. Both the parties are directed to remain present in Court on the next date of hearing along with all original documents relating to their assets, income and expenditure. 12. This Court appreciates the valuable assistance rendered by Ms. Prem Lata Bansal, Senior Advocate. 13. Copy of this order be sent to the Principal District Judge for being circulated to the concerned judges dealing with matrimonial cases.  14. Copy of this order be given dasti to learned counsels for both the parties under signature of Court Master. J.R. MIDHA, J SEPTEMBER 12, 2011 mk

Father to get the Custody of Minor Girl- Bombay High Court, Goa Bench

IN THE HIGH COURT OF BOMBAY

 (GOA BENCH)

 

CRIMINAL WRIT PETITION NO.34 OF 2005 

3-3-2006  

(R.M.S. KHANDEPARKAR, N.A. BRITTO, JJ.)  

Mrs. Mandy Jane Collins 

Vs. 

James Michael Collins & anr.  

Appearances : 

*Shri Anil Malhotra for the Petitioner.* 

*Sarvasri M.S. Usgaonkar, Sr. Advocate, with S.G. Bhobe for the Respondent

No.1.* *Shri S.N. Sardessai, Public Prosecutor, for the Respondent No.2.* * *

*Constitution of India, 1950 _ Article 226 _ Custody of child _ Minor child

_ Illegal detention or unlawful custody _ Habeas Corpus petition _

Maintainability of _ Alternate remedy.*

Petitioner-mother is a permanent resident of Ireland seeking custody of her minor daughter from respondent-husband _ Petition for writ of habeas corpus would lie only in cases of illegal or wrongful detention or custody _

Petition would also lie in the case of demand for custody of child provided

it is illegally and unlawfully denied to the parents or any one of them _ No

material to show that the child was residing with father due to some

forcible act on part of father or that it was without consent or knowledge

of her mother _ In interview the child appears healthy and seems to be happy to continue to reside with her father and the petitioner has been

occasionally visiting her _ Disturbance of status quo would not be in the

interest of child. (See para 17, 18, 19, 20, 21)  

Held : a) “All the decisions relied upon lay down the law that the petition

for writ of habeas corpus would lie only in cases of illegal or wrongful

detention or custody. Undoubtedly, it would also lie in the case of demand

for custody of child provided it is illegally and unlawfully denied to the

parents or any one of them.” (Para 17).  

b) “Apart from mere allegation that proper education will be available at

Ireland as compared to the one which is being imparted at Goa, no factual data in that regard is placed on record. The materials do not disclose any obstruction to the petitioner from visiting Ella or even taking her for few days or during holidays at the place of residence of the petitioner in Goa.

The question of permitting Ella to be taken to Ireland, without adjudicating upon the rival contentions sought to be raised in the matter which essentially would require analysis of the disputed questions of fact, would not be possible in exercise of writ jurisdiction.” (Para 18).  

c) “Besides, the educational year is also from June to April of the

succeeding year. We are already in the month of March. At this stage, any

change in the residential place of the child would also disturb the

educational process for the child. Taking into consideration the decision of the Apex Court in Dr. Mrs. Veena Kapoor’s case (supra) and further that the matter involves disputed questions of fact which are required to be

established by evidence, it would be in the interest of the child to relegate the parties to normal civil proceedings for the decision on the point of custody of the child, without disturbing the prevailing situation.”(Para 19).

d) “We had interviewed the child in the chamber, firstly in the presence of

her parents and their Advocates and thereafter in their absence. The child

appears healthy and she seems to be happy to continue to reside with her

father and she enjoys all the necessary amenities, care and protection from

her father and at the same time she has lot of respect and love for both the

parents. It is also revealed from the interview that the mother i.e., the

petitioner has been occasionally visiting the child at her residence at

Anjuna.” (Para 20).

e) “In the facts and circumstances of the case, there being no satisfactory

material placed before us to arrive at the conclusion of illegal detention

or unlawful custody of the child by the respondent in respect of Ella and

there being no sufficient material placed before us to justify disturbance

of the status quo, bearing in mind the best interest of the child, it would

be appropriate not to disturb the present situation in relation to the minor

child and, therefore, in our considered opinion, leaving the parties to

pursue civil remedy if they so desire, the petition deserves to be

dismissed.” (Para 21).

Result : Petition dismissed.

Case Law Referred :

 

1. Eugenia Archetti Abdullah v. State of Kerala 2005 (1) HLR 34 (Para11).

 

2. Paul Mohinder Gahun v. State of NCT of Delhi & Ors. 2005 (1) HLR

428 (Para 10).

 

3. Smt. Radha @ Parimala v. N. Rangappa 2004 (2) HLR 416 (Para 16).

 

4. Kumar V. Jahgirdar v. Chethana Ramatheertha 2004 (1) HLR 468 (Para15).

 

5. Miss Atya Shamim v. Deputy Commissioner/Collector, Delhi

(Prescribed Authority under Citizenship Act) and others AIR 1999 Jammu &

Kashmir 140 (Para 8).

 

6. Dhanwanti Joshi v. Madhav Unde 1998 (1) SCC 112 (Para 9).

 

7. Smt. Manju Tiwari v. Dr. Rajendra Tiwari and another AIR 1990 SC

1156 (Para 14).

 

8. Poonam Datta v. Krishanlal Datta and others AIR 1989 SC 401 (Para13).

 

9. Mrs. Kuldeep Sidhu v. Chanan Singh and others AIR 1989 Punjab and

Haryana 103 (Para 7).

 

10. Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and another AIR 1987 SC

3 (Para 6).

 

11. Surinder Kaur v. Harbax Singh Sandhu and another 1984 HLR 780 (Para5).

 

12. Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor AIR 1982 SC 792 (Para12).

JUDGMENT

 

R.M.S. Khandeparkar, J.

Heard. By the present petition, the petitioner is seeking issuance

of writ in the nature of habeas corpus for production, release and return of

her minor daughter by name Ella Karina Collins from the respondent No.1, in

order to enable the petitioner to take her to Ireland.

2. It is the case of the petitioner that the petitioner is a permanent

resident of Ireland and a British citizen holding a permanent passport of

the United Kingdom. She arrived in India on 18-9-2005 specifically to seek

the custody, care and control of her minor daughter Ella, who is aged about

8 years and who is presently at House No.1784, Mazalvaddo, Anjuna, Bardez,

Goa, with her father. The petitioner was married to the respondent No.1 on

6-6-1998 and Ella was born on 5-7-1997 in England and she is also a British

national. The respondent No.1 is from the United States of America. It is

her further case that Ella started her preliminary education at Coars

National School in Ireland. The petitioner is employed as an English teacher

and is a permanent resident of Ireland. The respondent No.1 owned a house in

Washington State where he used to reside and had his business in Seattle,

U.S.A. However, as of now he is not pursuing any business activity and

presently is living in Goa in the said house referred to above. It is her

further case that consequent to the marriage they stayed for different

period of times in the U.S.A. and the U.K., besides spending some time in

India and other countries for holidays. However, due to irreconcilable

differences, they parted company of each other in November, 2000, but have

not yet obtained any divorce decree to dissolve their marriage. After Ella

attended her school in Ireland in June, 2004, there were vacations in the

months of July and August and during those holidays, the respondent

No.1took Ella to

Switzerland and from there to India in September, 2004. Initially, the

respondent No.1 took Ella to a Dharmashala in Himachal Pradesh and then in

November, 2004 the respondent No.1 brought Ella to Goa.

Towards the end of November, 2004 he got Ella admitted to Mater

Dei Educational Institution at Saligao, Goa, in IInd standard and after the

break in April-June, 2005, Ella was detained in the same standard. It is her

grievance that inspite of persistent efforts on her part, the respondent

No.1 refused to return Ella to Ireland. The petitioner has been aiming and

working to see all along that Ella should continue her education in Ireland.

Presently, the child has lost considerable weight and does not enjoy some of

the medical facilities which would be available to her in Ireland. She does

not have the emotional and mental support of her mother which is necessary

for upbringing an eight year old child. Besides that, Ella is not in her

natural surrounding. All the efforts to negotiate with the respondent No.1,

even with the intervention of strangers and friends, have failed. It is her

case that the climate, environment, surrounding, family support, mother’s

love, affection, schooling and all the other necessary ingredients are

available only in Ireland and the respondent No.1 has U.S. Passport of Ella

on which he brought her to India and which is also in his custody. The

petitioner is the best person to look after and maintain the child of 8

years in Ireland and the welfare of the minor being of paramount

consideration, the child’s custody should be given to the petitioner. The

petitioner is also a well-qualified teacher and leads a stable life in

Ireland. The respondent No.1 is over 62 years of age and living alone and

cannot provide the necessary care for an 8 year old girl. In the interest of

justice, therefore, the custody of the minor girl should be ordered to be

given to the petitioner, along with her passport which is in the custody of

the respondent No.1.

3. On the other hand, while raising preliminary issue regarding the

non-maintainability of the writ petition in the nature of habeas corpus for

seeking the custody of the minor child on account of alternative and

efficacious remedy for such relief being available in the Civil Court in

Goa, it is the case of the respondent No.1 that the petitioner has

suppressed material facts while approaching the Court and on that count also

the petition deserves to be dismissed. It is his further case that the

petitioner and the respondent No.1 came for the first time in Goa after

their marriage in the month of December, 1996 and stayed at Anjuna till

March, 1997. The petitioner and the respondent were staying, after their

marriage, in the U.S.A. and the petitioner even became eligible for a

Green-card as a permanent American resident status, in or about November,

1999. The petitioner and the respondent together returned to India in

October, 2000 and toured various places in North India and thereafter along

with the child came to Goa in November, 2000, when the petitioner decided to

separate from the respondent and informed the said fact to the petitioner on

or about 11-11-2000 while they were in New Delhi. Consequently, the

petitioner and the respondent commenced residing separately at Anjuna from

November, 2000 onwards till March, 2001. At the same time, Ella also used to

stay occasionally with her mother. The petitioner was staying in a single

room while the respondent No.1 has hired a house for residence. Their child

Ella was staying on a week-to-week basis at both the places. Ella proceeded

along with the petitioner in March, 2001 to the U.K. while the respondent

proceeded to the U.S.A..

In or about June, 2001, the petitioner came to the United

Stateswith Ella and contacted the respondent with whom Ella was

residing till

September, 2001, when the petitioner took her back to the United Kingdom,

with the consent of the respondent, while the petitioner completed a degree

in the English language teaching at Seattle University. In terms of the

agreement between the parties, both came to Goa in November, 2001 since by

that time the respondent desired to make Goa as a permanent home. The

petitioner and the respondent shared the company of their minor child from

November, 2001 till May, 2002 and during the said period the child was

residing with the respondent and even undertook long holidays to Himachal

Pradesh and the other parts of North India. Some time in June, 2002, with

the consent of the respondent, the petitioner took Ella to the United

Kingdom and visited Ireland till August, 2002 on condition that Ella would

return to Goa in September, 2002. At that time, the petitioner was seen

residing in the company of one person by name Dave. In September, 2002 the

petitioner informed her inability to come to Goa and again in October, 2002

informed that she would come to Goa in November, 2002, when she actually

came to Goa. Ella then began to reside with the respondent No.1. The

petitioner used to visit Ella on and off while residing in a room at Anjuna.

During the said period, a common friend by name Barbara attempted to mediate

about the custody of Ella between the petitioner and the respondent and it

was agreed that the child should commence school in Goa from November, 2002

since she would have by then completed 6 years of age and accordingly Ella

commenced her education at Rainbow CLCC Co-operative Centre for Children at

Anjuna since November, 2002.

The petitioner, as agreed, took Ella to Ireland in March, 2003 and

the respondent No.1 collected his child Ella from the petitioner in July,

2003 and after visiting the child’s maternal grandparents, uncle, aunt and

cousins in the United Kingdom and after a stay of two months in the United

Kingdom, at the house of the respondent’s elder daughter, returned to India

in September, 2003. In or about November, 2003, the petitioner returned to

Goa and commenced staying at Palolem Beach, Canacona, Salcete-Goa, at a

distance of over 80 kms. from the respondent’s residence. She stayed there

upto March, 2004 and occasionally used to visit Ella as well as used to take

Ella out to Palolem Beach to spend some time with her. In March, 2004 the

parties agreed that the petitioner shall take Ella with her for holiday to

the United Kingdom and Ireland since Ella had holidays from school. Ella

stayed with the petitioner till August, 2004 when the respondent

No.1collected Ella from the United Kingdom and after visiting

relations in the

United Kingdom returned to Goa in October, 2004 along with Ella who was then

by 7 years of age. She was then admitted to Mater Dei Education Institution

at Saligao in November, 2004. This fact was informed in advance to the

petitioner. The said school is an ICSE school (Delhi Board) with very high

standard of education and founded since 1909. It is a reputed school in North

Goa.

Since October, 2004 the child Ella has been permanently residing

at the respondent’s residence in House No.1784, Mazalvaddo, Anjuna, Bardez,

Goa and had never been in the custody of the petitioner throughout this

period. The petitioner came back to India in late November, 2004 and stayed

in Palolem upto March, 2005. The petitioner left Goa for the United

Kingdomsome time in March, 2005 and again returned to

Goa on 18-9-2005 along with her friend Stuart. The petitioner had been

visiting the child at the respondent’s residence and even taking her out for

meals or to stay at her room at Anjuna. Even after filing of the petition,

she had been visiting the child in the residence of the respondent, without

difficulty. There had been exchanges of messages in October, 2005 which

would reveal the above facts. The child is growing in a most conducive

atmosphere. She attends her regular routine of going to school by school

bus, returns home at lunch hours and after completing her homework, she

regularly plays and spends time with the respondent as well as the friends

of her age in the locality of the respondent’s house. The reply filed by the

respondent refers to details of the arrangement made by the respondent for

the welfare of the child and for her upbringing.

4. Before we deal with the rival contentions which are sought to be

raised in the matter, it is necessary to consider the preliminary issue

which is sought to be raised in the matter regarding non-maintainability of

habeas corpus writ petition to claim the custody of the child in view of

availability of alternative efficacious remedy for that purpose. Various

decisions are sought to be relied upon in that regard by the learned

Advocates appearing for the parties.

5. In Surinder Kaur v. Harbax Singh Sandhu and another, reported in

1984 HLR 780, the Apex Court was dealing with a case wherein the wife, while

she was away on account of being employed and without her knowledge, the

husband took away the boy from England and brought him to India on 31-1-1983

and on the same day the wife obtained an order under Section 41 of the

Supreme Court Act, 1981 under which the boy became the Ward of the Court

with effect from that day. That order was confirmed on 22-7-1983 by Mrs.

Justice Booth of the High Court of Justice (Family Division) and by the said

order the husband was directed to handover the custody of the minor boy to

the wife or her agent forthwith. The wife came to India in April, 1983 and

in May she filed petition before the learned Judicial Magistrate, First

Class, Jagraon for the custody of her son contending that he was in the

illegal custody of the husband. The Apex Court has also observed that, from

the records it was disclosed that the father was a man without a character

who had planned to kill wife and even though the wife had obtained an order

of probation for him, he abused her magnanimity by running away with the boy

soon after the probation period was over. In fact, the husband was trapped

by the Police who got the scent that he was negotiating with a hitman to

have his wife run over by a car. The husband was convicted and sentenced to

term for three years for that offence. Ironically, it was the wife who

intervened and succeeded in obtaining a probation order for her husband who

had attempted to procure her murder. In those circumstances, the directions

were issued for delivery of custody of the child to the mother.

6. In Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and another,

reported in AIR 1987 SC 3, it was a case wherein on 23-12-1980, the

petitioner along with her son took up separate residence in a women’s

shelter and filed a petition for divorce in January, 1981. By decree dated

23-4-1982, the marriage was declared dissolved and the petitioner was held

to be entitled for custody and control of the minor child until she reaches

the age of 18 years or until further order by the Court, while giving

visitation right to the father. Taking advantage of the visitation right,

the father picked up the child from the school on 10-1-1986 and

surreptitiously left the United States of America for India on 11-1-1986,

without intimating the Court about the taking away of the child out of its

jurisdiction and out of the country, nor giving slightest indication to the

petitioner about his intention to leave the United States permanently for

India. The mother filed writ petition for habeas corpus for production of

the child. In response to the notice of the Court, only explanation which

the father had was that, his father was seriously ill and he wanted his

father to see the child and further that the child himself had expressed

willingness to prefer to stay with him in Pune and that therefore he was

admitted to a school at Pune. After considering the materials on record, the

Apex Court held that the mother is full of genuine love and affection for

the child and she can be safely trusted to look after him, educate him and

attend in every possible way to his proper up-bringing and the child had not

taken root in this country and he was still accustomed and acclimatized to

the conditions and environments prevailing in the place of his origin in the

United States of America and the child’s presence in India was the result of

an illegal act of abduction by the father who cannot claim any advantage by

stating that he has already put the child in some school at Pune.

7. In Mrs. Kuldeep Sidhu v. Chanan Singh and others, reported in AIR

1989 Punjab and Haryana 103, the High Court of Punjab and Haryana was

dealing with a case wherein after the marriage between the parties in the

year 1975 they were living in Canada and they got two issues, namely,

Navreet and Preeti in 1978 and 1981 respectively. Navreet was brought by his

father in India in 1984 and was left with his grandfather in Punjab and the

father of Navreet left India for Canada. About a year-and-half thereafter,

he also brought his daughter to India and left her with his father. Towards

the end of 1986 he came to India and took away both the children to Canada.

Meanwhile, the relationship between the husband and the wife were strained

and they were living apart. On 21-11-1986 the mother obtained an order from

the Supreme Court of Ontario granting her interim custody of the children

and by that order the father was restrained from removing the children from

the Province of Ontario. On getting to know of the said order, the husband

left Canada on the very day with the children and brought them to his

father’s place in Punjab. Observing that there is an order of the competent

Court granting custody of the children to the mother and restraining the

father from taking them out of the jurisdiction of the Court, and yet the

children, in violation of the said order were brought in India and were not

allowed to be in the custody of their mother, therefore, in those

circumstances, the mother was held entitled for the custody of the children.

8. In Miss Atya Shamim v. Deputy Commissioner/Collector, Delhi

(Prescribed Authority under Citizenship Act) and others, reported in AIR

1999 Jammu & Kashmir 140, after taking into consideration various decisions

on the point of maintainability of habeas corpus petition for the custody of

a child, it was held that in any proceeding before any Court concerning the

custody or upbringing of an infant, the Court must have regard to the

welfare of the infant as the first and paramount consideration and must

treat any rights, priorities or preferences of the parents or of either of

them or of other person as subordinate thereto; that comfort, health and the

moral intellectual and spiritual welfare of the infant are the true matters

for consideration in such cases and not rights of the parties. It was held

that the true principle deducible from the authorities by which the Court

should be guided in such cases, was that the Court is to judge upon the

circumstances of each particular case and that the welfare of the infant,

irrespective of its age is the main factor to be regarded. On the point of

custody of the child, it was also observed that the personal law of the

parties permit the mother to keep the custody of the female child till the

age of 15 years and that there was no case made out for entrusting the

custody of the minor to the father.

9. In Dhanwanti Joshi v. Madhav Unde, reported in 1998 (1) SCC 112,

the respondent Unde had married the appellant Dhanwanti and after marriage

left for the United States of America where he obtained an ex parte divorce

against his first wife Bhagyawanti. The said Bhagyawanti filed a petition in

the District Court at Nagpur claiming that the decree obtained by Unde to

have been obtained on misrepresentation of the facts and claimed for divorce

and maintenance and succeeded in getting a favourable decree. Dhanwanti

meanwhile delivered a child in the United States of America on 15-3-1983 and

due to certain compelling circumstances, she left the respondent Unde along

with her child on 20-4-1983 and thereafter the husband had no occasion to

live with his wife and the child. It was followed by litigation, civil and

criminal, both in the United States of America and India for over a period

of 14 years. The respondent Unde continued to live in the United

Stateswhile the appellant Dhanwanti and her son had been living in

India while the boy was studying at Pune. The respondent filed a divorce

case in the United States of America against Dhanwanti and also asked for

custody of the child. Initially, the U.S. Courts gave custody of the child

to the mother Dhanwanti. Divorce was decreed on 23-9-1983. On

20-2-1984Dhanwanti along with the child came to

India. The husband obtained an ex parte order on 11-4-1984 for visitation

rights, which was further modified as temporary custody on 30-4-1984, which

was made a permanent custody by ex parte order dated 28-4-1986. Dhanwanti

filed petition in the Civil Court at Bombay for declaration that her

marriage with the respondent was null and void on account of prior

subsisting marriage with Bhagyawanti.

Meanwhile, the respondent-husband filed a habeas corpus petition

in this High Court which came to be dismissed on 15-4-1986. The litigation

in the Family Court continued and ultimately it passed order allowing the

father to take custody of the child while dismissing the petition filed by

Dhanwanti. The appeal carried to the High Court failed and that is how the

matter was brought before the Apex Court. Taking note of the fact that the

Family Court and the High Court had based their decisions solely on the

circumstances regarding the financial capacity of the father to give better

education to the boy in the United States of America and after interviewing

the boy, the Apex Court found that he was quite intelligent and was able to

understand the facts and circumstances in which he was placed and he

informed the Hon’ble Judges of the Apex Court who had interviewed him that

he was not inclined to go with his father to the United States and wanted to

complete his study in India till he completes 10+2 or he finishes his

graduation. The Apex Court held that the orders passed by the High Court and

the Family Court to be erroneous and the custody of the child was retained

with his mother.

10. In Paul Mohinder Gahun v. State of NCT of Delhi & Ors., reported in

2005 (1) HLR 428, while holding that a girl child of tender age is bound to

shape better in the care of her mother, especially when it is not the case

of the petitioner that the environment in which the respondent is living in

India is not conducive for the upbringing or that the child will not have

proper schooling necessary for any career that she may choose for herself

and even though the father is financially better off than the mother with

whom the child is presently living but then the superior financial position

of the husband is no ground for change of the custody. It was also observed

that the prospects of immediate Canadian education which the father may be

ready to provide also cannot be a sufficient ground for shifting the custody

of the child to the father ignoring the fact that the child had never stayed

away from her mother and is in her custody. The fact that the child is a

Canadian citizen by birth is also hardly of significance at this stage.

11. In Eugenia Archetti Abdullah v. State of Kerala, reported in 2005

(1) HLR 34, it was held that writ of habeas corpus will be issued only when

there is illegal detention or wrongful custody. It was a case of a child of

three years held to be in illegal custody of the father.

12. In Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor, reported in AIR

1982 SC 792, it was held that in a habeas corpus petition it is difficult to

take evidence without which the question as to what is in the interest of

the child cannot satisfactorily be decided.

13. In Poonam Datta v. Krishanlal Datta and others, reported in AIR 1989

SC 401, the Court ordered for continuation of workable arrangement till

either of the parties go for appropriate guardianship proceedings and gets a

declaration. Therein, upon the orders of the Court, the husband had shifted

over to Modi Nagar and was prepared to stay at Modi Nagar in view of the

fact that the boy was admitted to the local school at Modi Nagar where the

mother was a teacher. In those circumstances, the Apex Court directed that

the boy should continue to study in the said school and neither party would

be permitted to withdraw him therefrom without permission of the Court.

14. In Smt. Manju Tiwari v. Dr. Rajendra Tiwari and another, reported in

AIR 1990 SC 1156, it was an order passed on satisfaction of the Apex Court

having arrived in the peculiar facts and circumstances of the case and

taking into consideration the past history, which is not narrated in the

order.

15. In Kumar V. Jahgirdar v. Chethana Ramatheertha, reported in 2004 (1)

HLR 468, the Apex Court held that, in the facts and circumstances revealed

therein, the judgment of the High Court giving exclusive custody of the

child to the mother with visitation rights to the natural father, could not

be found fault with except directing certain modifications for the reasons

which were enumerated in the said judgment. One of the reasons disclosed for

giving the custody of the child was that the father of the child was living

alone with his father and there was no female member living in the house and

the father was carrying on business which required him to attend to his

office and business engagements outside his residence.

16. In Smt. Radha @ Parimala v. N. Rangappa, reported in 2004 (2) HLR

416, it was held by the Karnataka High Court that the question as to where

the welfare of the minor lies should be answered after weighing and

balancing all factors germane to the decision-making, such as relationships,

claims and wishes of parents, risks, choices and all other relevant

circumstances and the answer lies in the balancing of these factors and

circumstances and determining what is best for the minor’s total well-being.

17. All the decisions relied upon lay down the law that the petition for

writ of habeas corpus would lie only in cases of illegal or wrongful

detention or custody. Undoubtedly, it would also lie in the case of demand

for custody of child provided it is illegally and unlawfully denied to the

parents or any one of them.

18. The pleadings and the materials placed on record prima facie

disclose that since November, 2002 Ella has been residing at Anjuna along

with the respondent without any sort of difficulty and with all the

facilities to the petitioner not only to visit Ella but even being allowed

to take the child for dinner or for shopping. It was only in the year 2004

the petitioner thought of taking Ella to Ireland for education. Apart from

mere allegation that proper education will be available at Ireland as

compared to the one which is being imparted at Goa, no factual data in that

regard is placed on record. The materials do not disclose any obstruction to

the petitioner from visiting Ella or even taking her for few days or during

holidays at the place of residence of the petitioner in Goa. The question of

permitting Ella to be taken to Ireland, without adjudicating upon the rival

contentions sought to be raised in the matter which essentially would

require analysis of the disputed questions of fact, would not be possible in

exercise of writ jurisdiction.

19. Perusal of the facts narrated in the petition coupled with the

statements of facts brought on record in-reply and revealed from the

documentary evidence on record, it is prima facie clear that there is

nothing to suggest that the child Ella is residing with her father on

account of some forcible act on the part of the respondent or that it was

even without the consent or knowledge of the petitioner. Even Ella’s joining

of school in Goa prima facie appears to be with the knowledge and tacit

consent of the petitioner. Prima facie it appears that certain circumstances

which created rift between the spouses have led for the controversy in the

matter and it being used not in the interest of the child but rather

ignoring her best interest. Taking into consideration various facts brought

on record and as they stand today, it would be difficult to accept the

contention of the petitioner that there is a case for disturbing the

residence of the child with the respondent. Besides, the educational year is

also from June to April of the succeeding year. We are already in the month

of March. At this stage, any change in the residential place of the child

would also disturb the educational process for the child. Taking into

consideration the decision of the Apex Court in Dr. Mrs. Veena Kapoor’s case

(supra) and further that the matter involves disputed questions of fact

which are required to be established by evidence, it would be in the

interest of the child to relegate the parties to normal civil proceedings

for the decision on the point of custody of the child, without disturbing

the prevailing situation.

20. We had interviewed the child in the chamber, firstly in the presence

of her parents and their Advocates and thereafter in their absence. The

child appears healthy and she seems to be happy to continue to reside with

her father and she enjoys all the necessary amenities, care and protection

from her father and at the same time she has lot of respect and love for

both the parents. It is also revealed from the interview that the mother i.e.,

the petitioner has been occasionally visiting the child at her residence at

Anjuna.

21. In the facts and circumstances of the case, there being no

satisfactory material placed before us to arrive at the conclusion of

illegal detention or unlawful custody of the child by the respondent in

respect of Ella and there being no sufficient material placed before us to

justify disturbance of the status quo, bearing in mind the best interest of

the child, it would be appropriate not to disturb the present situation in

relation to the minor child and, therefore, in our considered opinion,

leaving the parties to pursue civil remedy if they so desire, the petition

deserves to be dismissed and is accordingly dismissed, with no order as to

costs.