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

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.

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