Rajasthan High Court - Jodhpur
Jitendra Sighani vs Harneek on 30 August, 2019
Equivalent citations: AIR 2020 (NOC) 623 (RAJ.), AIRONLINE 2019 RAJ 791, (2019) 4 RAJ LW 3079
Author: Sangeet Lodha
Bench: Sangeet Lodha, P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 2825/2018
Jitendra Sighani S/o Shri Ramesh Gagansingh, Aged About 39
Years, R/o 14, Vinayak Nagar, Sector Number - 12, Hiranmagari,
Ward No. 20, Udaipur, Rajasthan
----Appellant
Versus
Smt. Harneek W/o Shri Jitendra, D/o Shri Surendra Kalra, Aged
About 36 Years, R/o 743-H, Sector Number - 11, Hiran Magari,
Sikkha Colony, Opposite Adinath School, Udaipur, Rajasthan.
----Respondent
For Appellant(s) : Mr. Kuldeep Mathur with Mr.Vinod
Choudhary
For Respondent(s) : Mr.Deepak Menaria
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE P.K. LOHRA Judgment Per Hon'ble Mr. Sangeet Lodha, J.
30th August, 2019
1. This appeal is directed against order dated 17.9.18 passed by the Family Court, Udaipur, in Case No.492/17, whereby an application preferred by the appellant under Section 12 of Guardians and Wards Act, 1890 (for short "the Act"), seeking interim custody of the female child or visitation rights as non custodial parent, has been dismissed.
2. The facts relevant are that the appellant and the respondent entered into wedlock on 26.5.02. After marriage, they lived together at Udaipur and were blessed with a baby girl on 22.9.12. (Downloaded on 02/09/2019 at 08:51:33 PM)
(2 of 7) [CMA-2825/2018] On account of disputes and differences being developed, they started living separately w.e.f. 11.11.15.
3. The respondent-wife lodged one after another three FIRs against the appellant; FIR No.101/16 for offences under Sections 498A, 406 IPC at Mahila Police Station Udaipur, FIR No.354/16 for offences under Sections 420, 406, 467, 468 & 120B IPC at Police Station Sukher, Udaipur and FIR No.255/16 for offences under Sections 420, 406, 467, 468, 120B IPC at Police Station, Govardhan Vilas, Udaipur. The respondent-wife also filed an application under Section 125 Cr.P.C. seeking maintenance for herself and daughter Pearl a sum of Rs.70,000/- and Rs.30,000/- respectively, which is being contested by the appellant by filing a reply thereto.
4. According to the appellant, the respondent left the matrimonial home on 11.11.15 and also forcibly took away the baby girl Pearl with her. The appellant filed an application under Sections 7 & 25 of the Act on 22.11.17 before the Family Court, Udaipur accompanied by an application under Section 12 of the Act, claiming either interim custody or visitation rights to the child.
5. The application has been rejected by the Family Court by the order impugned observing that as laid down by the Supreme Court, the interest and welfare of the child is of paramount consideration in the matter of grant of custody and since there are allegations of appellant's being involved in commission of the offences and he is alleged to have treated the respondent-wife with cruelty, taking into consideration the overall interest of the child who is studying in Class III and being brought up by her mother, he is not entitled for interim custody as prayed for. The (Downloaded on 02/09/2019 at 08:51:33 PM) (3 of 7) [CMA-2825/2018] prayer of the appellant for visitation rights has not been considered by the Family Court while passing the order impugned. Hence, this appeal.
6. During the pendency of the appeal, a Bench of this Court of which one of us was member, conferred with the appellant, respondent and the child Miss Pearl in Chamber, however, the efforts made for amicable settlement between the parties failed and therefore, the matter is taken up for consideration on merits.
7. Learned counsel appearing for the appellant submitted that by way of an application under Section 12 of the Act, the appellant had prayed for only visitation rights, however, the Family Court has dealt with the application filed as an application seeking interim custody and the prayer of the appellant claiming visitation rights has not even been considered. Learned counsel submitted that every child has fundamental right to get love and affection from both parents and thus, the respondent cannot deny the appellant visitation rights to the child altogether. Drawing the attention of this Court to the order impugned passed by the Family Court, learned counsel submitted that while deciding the application preferred by the appellant, the Family Court has not assigned any reason as to why the appellant does not deserve to be extended limited visitation rights to his own daughter, who is living with the mother on account of differences having been developed between the parties. Learned counsel submitted that both mother and father have equal rights over the child and equally responsible and concern with the welfare of the child. It is submitted that for healthy emotional development of the child Pearl, it is essential that she gets care, love and affection from both the parents and thus, the rejection of the application of the (Downloaded on 02/09/2019 at 08:51:33 PM) (4 of 7) [CMA-2825/2018] appellant seeking visitation rights by the Family Court in cursory manner, without even considering the submission of the appellant in this regard is absolutely unjustified. Learned counsel submitted that presumption in favour of maternal custody as sound child welfare policy is rebuttable and in given case the father is better suited to have custody of the child. It is submitted that such assessment can only be made after level playing field is granted to both parents and thus, without the appellant being extended visitation rights and given a chance to live with the child, the conclusion drawn by the Family Court that for the welfare of the child, she deserves to be kept in the custody of the mother is ex facie perverse. In support of the contentions, learned counsel has relied upon a decision of the Delhi High Court in Vikas Agarwal Vs. Geeti Mathur (Mat.App. (F.C.) 171/2016) dated 14.2.17.
8. On the other hand, counsel appearing for the respondent submitted that the respondent as also the child Pearl, who is only 6 years of age, were treated by the appellant with cruelty. Learned counsel submitted that after birth the child continues to be in custody of the mother and the appellant has never cared to look after the child in any manner whatsoever. It is submitted that the respondent in the first instance got admitted the child in Play School- Tree House and thereafter, she is admitted to Riyan International School for her education. It is submitted that entire responsibility of maintenance and upbringing of the child is throughout being discharged by the respondent alone. It is submitted that the appellant who was always indulged in torturing the respondent and the child Pearl physically and mentally, does not deserve to be extended even visitation rights and thus, the (Downloaded on 02/09/2019 at 08:51:33 PM) (5 of 7) [CMA-2825/2018] interim order passed by the Family Court does not warrant any interference by this Court in exercise of its appellate jurisdiction.
9. We have considered the rival submissions and perused the material on record.
10. Indisputably, the appellant being father of the child is equally entitled to spend time with his minor daughter and to bestow his love and affection on her. But then, the matter with regard to the custody of the minor child is a sensitive issue for both the parents, which needs to be resolved with human angle taking into consideration welfare and best interest of the child. Obviously, the differences, discord and bitterness in relationship between the parents in no manner should adversely affect healthy growth of the child.
11. In Gaurav Nagpal Vs. Sumedha Nagpal: 2009 (1) SCC 42, the Supreme Court while considering the provisions of the Act and referring to the principles of English and American Law governing the custody of minors as also the decisions of Bombay High Court and Supreme Court in this regard, held:
"42. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The Court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mousmi Moitra Ganguli's case the court has to give due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.
43. The word "welfare" used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of the special statutes which (Downloaded on 02/09/2019 at 08:51:33 PM) (6 of 7) [CMA-2825/2018] governs the rights of the parents and guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases."
12. In the backdrop of the position of law settled as aforesaid, adverting to the facts of the present case, it is noticed that the appellant and the respondent separated on 11.11.15 when the child Pearl was 3 years of age and thereafter, the respondent alone is involved in taking care and upbringing the child as responsible parent. There is nothing on record suggesting that any active attempt was made by the appellant to seek even temporary custody of the child and thus, as a matter of fact, the appellant has acquiesced with the existing arrangements of the custody of the child with the mother, the respondent herein.
13. As noticed above, a Bench of this Court of which one of us was a member, had conferred with the appellant, respondent and child Pearl in Chamber. However, it was observed that looking at the differences, discord and bitterness in the relationship between the appellant and respondent, no amicable settlement was possible. It is pertinent to note that the minor child Pearl is living with her mother at her maternal home for last 3 years, in stable and congenial atmosphere and therefore, at this stage, there is absolutely no reason as to why the custody of the child with the current custodial parent should be interfered with by giving interim custody to the non-custodial parent, the appellant herein.
14. In view of the discussion above, in the considered opinion of this Court, the order impugned passed by the Family Court declining the prayer for interim custody of the child to the appellant herein, does not warrant any interference by us in exercise of appellate jurisdiction.
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15. But, as noticed above, essentially the application preferred by the appellant was for visitation rights to the child. However, while passing the order impugned, the prayer of the appellant for visitation rights has not been considered by the Family Court. It needs to be emphasized that a parent who is not granted interim custody is entitled to consideration of his prayer for visitation rights, which is generally granted unless there exists extenuating circumstances justifying denial of such prayer. In this view of the matter, this Court is of the considered opinion that the prayer of the appellant with regard to visitation rights to the child Pearl needs to be considered by the Family Court appropriately.
16. Accordingly, the order impugned passed by the Family Court denying interim custody of the child Pearl to the appellant is upheld. However, the matter is remanded to the Family Court for consideration of the prayer of the appellant for visitation rights to the child during the pendency of the petition appropriately. The Family Court shall pass appropriate orders in this regard after giving an opportunity of hearing to both the parties within a period of one month from the date of this order. The Family Court is also directed to decide the main petition as well expeditiously.
17. The appeal stands disposed of accordingly. No order as to costs.
(P.K. LOHRA),J (SANGEET LODHA),J
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