Father Gets Custody of his 2 children: Delhi Court
IN THE COURT OF SH. GAUTAM MANAN:
GUARDIAN JUDGE (CENTRAL) DELHI.
G.P. NO. 37/2007
D/O SH. S.N. KAPOOR,
W/O GEORGE LAWRENCE
R/O, 34/492, TRILOK PURI,
V E R S U S
S/O, SH. RAMESH ROMEL
R/O, 126, IIIRD FLOOR,
MALVIYA NAGAR, NEW DELHI.
PETITION SEEKING PERMANENT CUSTODY OF MINORS
ROHAN & PRIYA
DATE OF INSTITUTION : 13.02.2007
JUDGMENT RESERVED ON : 30.09.2011
JUDGMENT DELIVERED ON : 29.10.2011
1 G.P. No.37/07JUDGMENT
1. The present petition U/s 6 (A) of the Hindu Minority & Guardian ship & Wards Act has been filed by the mother of minor children ‘Priya’ and ‘Rohan’ against the respondent (father) for seeking permanent custody of
minor children. The children are now aged about 14 years & 9 years respectively.
2. As per the case of the petitioner, she got married to the respondent on 05/05/1996 and out of the said wedlock female child ‘Priya’ was born on 11/03/1997 and a male child ‘Rohan’ was born on 15/12/2002. After the
marriage that the respondent started behaving rudely with the petitioner and the respondent used to tell the petitioner
that his marriage was solemnized without his consent and respondent is not happy with this marriage with the petitioner. The behavior of respondent became intolerable as he started criticizing and taunting to the petitioner that
she does not possess a good looking personality and she is not of his status hence he will never accompany the petitioner publicly or any functions and ceremonies. It is stated that the respondent has never performed his
matrimonial duties towards the petitioner and he never looked after and cared about children since their birth. The respondent used to return at late night hours and just after
return he used to quarrel and abuse the petitioner & even treated the children with cruelty. For the respondent it was
a routine matter to beat children. In August 2005, the respondent quarreled with petitioner and threatened to kill the petitioner and her children. The respondent threw the
petitioner form his house and since then the petitioner has been residing separately.
3.It is stated that petitioner requested and prayed to the respondent to handover the custody of her minor children
but the respondent flatly refused. The welfare and future of minors is not safe with the respondent who has always neglected them as he has no love and affection for the petitioner. It is stated that the respondent is working as a Security Guard and is doing duty 24 hours and there is none
in the family of the respondent to look after minor children. On the other hand the petitioner’s family includes her mother, sister and other family members who can look after and take care of the children and the children will be quite
happy and satisfied with the petitioner. Hence, the petitioner is fully entitled for the custody of her minor children for their welfare, bright future and good health.
4. In the written statement, the respondent has submitted that he is poor person and having his parents and two children, moreover he is sole bread earner in his house. Soon after his marriage, he came to know that the
petitioner has been suffering from the fits and tuberculosis
disease and is under treatment. It is submitted that
petitioner has three names as Preety, Priyanka and Rano.
The married life of the husband and wife was going very
happy but after the birth of the female child the petitioner
decided to give her baby to her younger sister because her
younger sister had no issue. The respondent and his family
did not agree to give the child to her younger sister because
it was the first and only one baby in the family. It is
submitted that the petitioner is suffering from inherent
Tuberculosis disease and the Doctors have suggested the
respondent’s family to save her child with it’s infection,
because it is an infectious disease and the child shall be
infected with her mother’s diseases. It is further stated that
since 29/02/2000 the petitioner is not living regularly with
her husband the respondent. After some time a male child
was born on 15/12/2002.
5 G.P. No.37/075. The respondent has submitted that a false
complaint was filed by the petitioner before the Crime
Woman cell on 23/09/2005 but the same was withdrawn by
the petitioner. Meanwhile, during the period between the
year 2000 to 2005, the petitioner had been coming at
respondent’s house for some time and when he was to leave
the respondent’s house then she was been writing a letter.
It is also submitted that she never wanted to reside in her
matrimonial home regularly, however the respondent and
his poor family have always been associating her and
requesting her to stay in her matrimonial home and take
care her children and his family. It is submitted that both
the children are very happily residing with respondent’s
family since their birth and they have a bright future.
6. Vide order dated 19/05/2008, following issues
6 G.P. No.37/071. Whether it would be in the
interest & welfare of the
children namely baby ‘Priya’
and master ‘Rohan’ aged
around 10 years and 4 years
respectively in case their
permanent custody is granted
to their petitioner mother
Priyanka as prayed. (OPP).
7. The Court had a Chamber interaction with the
both the children ‘Priya’ and ‘Rohan’ on 27/08/2011.
Master ‘Rohan’ disclosed his name as ‘Maxwell’ and he is
studying in class 2
at Nagar Nigam Prathmik Vidayalya,
Malviya Nagar and informed that his father and grand
mother takes good care of him. The minor submits that he is
happy in the custody of the respondent and he does not like
his mother. However, the minor was not able to give any
specific reason why he does not like his mother except that
the petitioner suffers from fits.
7 G.P. No.37/078. In her interview ‘Priya’ has informed that she is
studying in Class 5
at Nigam Girls Prathmik School and she
also attends her tuition classes. The minor informs that her
mother had left the matrimonial home and she did not take
care of the children as such the she does not wish to reside
with her mother. The minor has also informed that the
respondent is a Security Guard and his duty hours are at
night and he is available at home to take their care in the
day time. It is told that in the absence of their father, the
children are looked after by their grand mother, who is also
working in a hospital. ‘Priya’ has also desired to reside with
her father, respondent.
9. I have heard counsel for parties and perused
the entire record. The issue wise findings are as follows :
8 G.P. No.37/07ISSUE NO.1: In order to prove her case petitioner
examined herself as PW1 and tendered her evidence by way
of an affidavit Ex. P1. The petitioner during her cross
examination deposed that she is residing at 34/492, Trilok
Puri, Delhi91 and in the said house seven people are
residing. It is deposed that she is doing the stitching work at
her home and her average monthly income is Rs. 2000/. It
is admitted that she was suffering from TB even prior to
marriage. The petitioner admitted that she was earlier
suffering from fits and she even got treated for a
neurological problem. Petitioner testified that she cannot
tell in which class her children are studying and she never
went to meet her children at their School. The petitioner
also admitted that she has availed visitation rights to meet
her children only 56 times.
9 G.P. No.37/0710. In defense respondent appeared in witness box
as RW1 and tendered his evidence by way of affidavit Ex.
RW1/A. The respondent testified that he is christian and at
the time of marriage the petitioner also converted to
Christianity. His marriage was solemnized as per Christian
rites and ceremonies and proved the photographs of his
marriage as Ex R1. Respondent testified that petitioner is
suffering from epilepsy & tuberculosis her medical record is
Ex R2 & R4. The respondent disclosed his income at Rs.
6,000/ per month.
11. It is the objective of the Guardian and Wards
Act that every trial is only to ensure paramount welfare and
interest of the children. The guardianship Court is not a
platform where litigation parties can be permitted to vent
their grudges and her feelings against each other and that
10 G.P. No.37/07matters and relevant is as to what would be done to secure
the welfare and interest of the minors since in all the
guardianship cases it is the minors only who are the victims
even through they have no role to play in the failed
marriages of their parents.
12. While lying the guidelines for the court dealing
with the guardianship matter and elucidation the
importance of the role played by Guardian Judge , Hon’ble
Supreme Court & Hon’ble High Courts have held that:
Again, in Thrity Hoshie Dolikuka v.
Hoshiam Shavaksha Dolikuka, (1982) 2
SCC 544, the Hon’ble Apex Court
reiterated that the only consideration of
the Court in deciding the question of
custody of minor should be the welfare
and interest of the minor. And it is the
special duty and responsibility of the
Court. Mature thinking is indeed
necessary in such situation to decide
what will enure to the benefit and
11 G.P. No.37/07welfare of the child.
Merely because there is no defect in his
personal care and his attachment for his
children which every normal parent
has, he would not be granted custody.
Simply because the father loves his
children and is not shown to be
otherwise undesirable does not
necessarily lead to the conclusion that
the welfare of the children would be
better promoted by granting their
custody to him. Children are not mere
chattels nor are they toys for their
parents. Absolute right of parents over
the destinies and the lives of their
children, in the modern changed social
conditions must yield to the
considerations of their welfare as human
beings so that they may grow up in a
normal balanced manner to be useful
members of the society and the guardian
court in case of a dispute between the
mother and the father, is expected to
strike a just and proper balance between
the requirements of welfare of the minor
children and the rights of their respective
parents over them.
The Hon’ble Supreme Court in AIR 2009
SC 557 has held that when the court is
confronted with conflicting demands
made by the parents, each time it has to
justify the demands. The Court has not
only to look at the issue on legalistic
basis, in such matters human angles are
12 G.P. No.37/07relevant for deciding those issues. The
court then does not give emphasis on
what the parties say, it has to exercise a
jurisdiction which is aimed at the
welfare of the minor. As observed recently
in Mousami Moitra Ganguli’s case 2008
AIR SCW 4043, the Court has to due
weightage to the child’s ordinary
contentment, health, education,
intellectual development and favorable
surroundings but over and above
physical comforts, the moral and ethical
values have also to be noted. They are
equal if not more important than the
13. In present case, ‘Priya & Rohan’ minors aged 14
years & 9 years have made a preference that they would
prefer to be with their father with whom they are residing
happily. It has also come in evidence that;
(a) The children are residing in company
of their father since their birth and have
adjusted well in his company.
(b) The financial position of the petitioner is
not stable. Her meager income of Rs2000/ is
13 G.P. No.37/07insufficient to meet the day today expenses &
educational expenses of children.
(c) The children are getting good education
and the atmosphere in the residence of the
respondent is congenial for the welfare of the
child as in the absence of the respondent, the
grand mother of the children is taking good
care of children.
(d) The minors in their interaction with the
Court have wished to reside in the company
of the respondent.
(e) There is nothing on record to suggest that
the petitioner is more capable of handling the
children than the respondent and the welfare
of the children is not with the respondent.
14. Thus, in the light of the aforesaid discussions, I
am of the considered opinion that the paramount welfare of
the child is with the respondent and the custody of the child
‘Priya & Rohan’ shall remain with him. However, the
petitioner being the mother of children should have
14 G.P. No.37/07sufficient access to them. Accordingly, it is ordered that the
petitioner shall have the visitation rights to meet the
children on each Sunday from 10:00 AM till 01:00 PM. The
petitioner may visit the residence of the respondent for the
meeting or otherwise may inform the respondent any other
venue of meeting within two kilometres distance from the
house of the respondent.
15. RELIEF: In the light of the aforesaid
discussions, the petition of the petitioner filed seeking
custody of children ‘Priya & Rohan’ stands dismissed. The
petitioner is granted the visitation rights in respect of the
minor children as detailed in the above mentioned para. No
orders as to costs.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT
ON : 29
October, 2011 (GAUTAM MANAN)
15 G.P. No.37/07 16 G.P. No.37/07