Delhi District Court
Ramesh Chand Saklani vs Ms. Daizy @ Dazy Saklani on 22 August, 2012
IN THE COURT OF PAWAN KUMAR MATTO,
ADDITIONAL DISTRICT JUDGE03 (EAST),
KARKARDOOMA COURTS, DELHI
G. No.37/2009
ID No. : 02402C0277092009
IN THE MATTER OF :
Ramesh Chand Saklani,
S/o Sh. Keshav Dutt Saklani,
R/o B139, Gali No.7,
East Vinod Nagar,
Delhi92
...............Petitioner
Versus
Ms. Daizy @ Dazy Saklani
W/o Sh. Ramesh Chand Saklani,
D/o Sh. Jeevan Dutt Sharma,
R/o H.No.49A, BlockC,
Gali No.6, West Vinod Nagar,
Delhi92 ............Respondent
Date of Institution : 17.09.2009
Date of arguments heard : 14.08.2012
Date of order : 22.08.2012
G. No.37/2009 Ramesh Chand Saklani v. Daizy Page 1 of 17
JUDGMENT
1. The petitioner has filed the present petition U/s 25 of Guardians and Wards Act, on the averments that his marriage with the respondent was solemnized on dated 27.04.03 in accordance with Hindu rites and ceremonies at Delhi. The marriage was simple one and after the marriage of the parties, both the parties to the present lis, lived in the house of the parents of the petitioner. It is further stated that both the parties lived together, as husband and wife, as a result of which the respondent had given the birth to one male child namely Master Sudhanshu on dated 18.08.2004, and at present he is living under the custody of the respondent.
2. It is further averred that the petitioner had provided love and affection to the respondent and all the members of the family of the petitioner and his relatives kept the respondent happy in her matrimonial home.
3. It is further averred that soon after the marriage, the respondent started creating unnecessary trouble in the family and created unhealthy atmosphere in her matrimonial home, but, the petitioner and his family's members always kept mum just to save the matrimonial life of the petitioner. But, the respondent was never satisfied and she started raising illegal demands from the petitioner and she used to quarrel with the petitioner and his family members, even on petty matters and even without any fault of the petitioner and his family's members. But, the petitioner always adjusted with the respondent.
G. No.37/2009 Ramesh Chand Saklani v. Daizy Page 2 of 17
4. It is also averred that on dated 04.01.2004, the respondent left her matrimonial home without any reasonable cause and she took away all the jewelleries with her. It is further averred that the respondent used to leave her matrimonial home and similarly used to return to her matrimonial home, in accordance with her wishes.
5. The petitioner has also averred that on each and every festival, either it is Diwali, Holi, Dushehra or any family's function, the respondent used to create nuisance in front of the relatives and in view of such torture, the petitioner is keeping bad health and going under the mental depression.
6. It is further averred that the petitioner made efforts to reconcile with the respondent, but, respondent refused to live with the petitioner.
7. The petitioner has also averred that the respondent has obtained the custody of the minor child namely Master Sudhanshu by unlawful means and she did not inform to the petitioner regarding the birth of the child and when he came to understand about the birth of the child, he went there, but, the respondent and his other family's members did not allow him to see the child. It is also alleged that the respondent is an unworthy lady, who has no concern with the welfare of the child.
8. The petitioner has also averred that the petitioner is a natural guardian of the child and fully competent for the welfare of the minor child and he is doing private service and earning Rs.4000/ per month and it is essential for the bright future and education of the child to hand over the custody of the child to the petitioner. It is further averred that the G. No.37/2009 Ramesh Chand Saklani v. Daizy Page 3 of 17 petitioner is having mother and father and the mother is a household lady and the father is a retired person and they can look after the minor child during the working hours of the petitioner.
9. It is further averred that if the immediate custody of the child is not given to the petitioner, the entire carrier of the minor child may be destroyed and alleged that respondent is a lady of rude behaviour and she is not competent to educate the child and to look after the child and the petitioner has sufficient source of income, as per his capacity and is able to provide well future to the minor and the petitioner has been deprived from the custody of minor child without any just and sufficient cause and the future of minor is in dark in the hands of the respondent and prayed for directing the respondent to hand over the custody of minor child namely Master Sudhanshu aged about 5 years and one month.
10. The respondent has filed the written statement and contested the case on the grounds interalia that the petitioner has suppressed the material facts from this court and the petitioner has not come to the court with clean hands. The present petition of the petitioner is based on the false and concocted facts. It is further stated that the petitioner is desirous to take the benefits of his own wrongs. It is further averred that the petitioner spends whole day out of the house to discharge his duties in the office at Noida and he cannot take care the child properly.
11. Replying to the petition on merit, the respondent has not denied the factum of marriage, date of birth of the child. She has denied that she has G. No.37/2009 Ramesh Chand Saklani v. Daizy Page 4 of 17 been provided love and affection or that the family's members of the petitioner kept her happy in her matrimonial home. She has also denied to have created any trouble or unhealthy atmosphere in her matrimonial home. She has stated that her marriage with the petitioner was solemnized with great pump and show and parents of the respondent had spent about Rs.2,50,000/ approximately on her marriage and huge sophisticated dowry articles were presented by her parents and her relatives to the petitioner and his other members of the family. She has denied to have left her matrimonial home without any reasonable cause. She has stated that after her marriage, she went to matrimonial home with the rosy dreams of leading happy married life, but, after her arrival in the matrimonial home, she was treated with cruelties and she was taunted for inadequate dowry articles by saying that dowry articles and gifts presented to them by her parents were of substandard quality and were not in accordance with their expectations. She has further alleged that demands of motorcycle and cash of Rs.50000/ were also raised and she was shocked. She has also alleged that after her marriage, the petitioner and his family members also took her all Jewelleries, Stridhan etc. on the pretext of keeping the same in the safe custody. It is further stated that after sometime of the marriage, the respondent became pregnant, but, the petitioner and his family's members never treated her with love and they compelled her to do all heavy works and never allowed to take rest. The respondent was never taken for her medical check up by the doctor, G. No.37/2009 Ramesh Chand Saklani v. Daizy Page 5 of 17 during her pregnancy. Rather, they continued to give mental and physical torture to the respondent and on dated 23.09.03, in the night, the mother of the petitioner diluted some tablets in the milk and served to the respondent, as a result of which, respondent suffered severe pains in her lower abdomen and on the next morning, there was bleeding and ultimately on 25.09.03, the respondent was taken to a doctor, who opined that the respondent has suffered miscarriage and this caused great shock and agony to the respondent. The respondent has denied to have obtained the custody of the minor child by unlawful means. She has stated that on dated 18.08.04, she had given birth to a male child at Sucheta Kriplani Hospital, New Delhi by a major operation and all the expenses of the delivery were borne by her parents. It is further stated that at the time of admission in the hospital, the petitioner and his other family members were informed, but, they did not bother to see the respondent and her child Sudhanshu. The respondent has denied that the petitioner is competent for the welfare of the child. She has stated that the petitioner is doing a private job at Noida and spends whole day in his job at Noida and spends Rs.20003000/ per month on his travel from Vinod Nagar to Noida and he has paid Rs.1500/ per month, as maintenance to the respondent, as per the direction of the court of Ms. Sunena Sharma, Ld. MM, KKD, Delhi. It is further stated that in the written statement to the application U/s 125 Cr.PC filed in the court of Ms. Sunena Sharma, the petitioner has stated that he was terminated from Bata Shoe Co. in G. No.37/2009 Ramesh Chand Saklani v. Daizy Page 6 of 17 November, 2007 and presently he is working in the Liberty Shoe Co. situated at P12A, Sector18, Noida and drawing a salary of Rs.4000/ per month and he has no other source of income. She has further stated that she is a graduate lady and she remains at home whole day and she can look after and teach the child properly and make the future of the child as bright. She has has further stated that petitioner and his other family members were informed at the time of her admission in the hospital, but, neither the petitioner nor his other family's members came to see the child and denied other averments made in the petition and sought the dismissal of the petition.
12. From the pleading of the parties the ld. predecessor of mine was pleased to frame the following issues :
1. Whether petitioner is entitled for the custody of minor child Master Sudhanshu, aged 5 years, as alleged ? OPP
2. Relief.
13. In order to prove his case, the petitioner has examined himself as PW1 vide his affidavit Ex.PW1/A. In one way or other he has reiterated the contents of his petition. He was subjected to cross examination by the counsel for the respondent. He has not examined any other witness. On the other hand, the respondent has examined herself as RW1 vide her affidavit Ex.RW1/A. She was also subjected to cross examination by the ld. counsel for the petitioner. She has not examined any other witness.
14. I have heard Learned counsels for the parties and perused the record G. No.37/2009 Ramesh Chand Saklani v. Daizy Page 7 of 17 of the case. My findings on issue No.1 is as under :
15. Findings on issue No.1 : The onus to prove this issue is on the respondent. The petitioner has filed his own affidavit in evidence wherein he has reiterated the contents of petition.
16. Learned counsel for the petitioner has submitted that petitioner is father and natural guardian of minor children. He further submitted that petitioner is an educated person, who has passed 12th class, who is employed and having good financial position to look after the minor children and he is earning Rs.6000/ per month and working at Vasundhara, Ghaziabad, Uttar Pradesh. He further submitted that his mother is a household lady, whereas, his father is a retired person and they can look after the child in the absence of the petitioner. The petitioner is working in a mall at Vasundhara and his working hours are 11.00 AM to 9.00 PM and there is a lunch break of three hours and he can come to his residence at Vinod Nagar during these lunch hours and may take care of the child. He has further submitted that respondent is dependent upon her parents. She cannot provide any financial assistance to the child for his upliftment and for the betterment of the child, the handing over the custody of the minor child to the petitioner has become essential and prayed accordingly.
17. On the other hand, ld. counsel for the respondent has submitted that no doubt, the petitioner is an earning hand male, but, this cannot be treated as sole criteria to ascertain the matter of custody to the petitioner. G. No.37/2009 Ramesh Chand Saklani v. Daizy Page 8 of 17 He has further submitted that respondent is an educated lady. She is a graduate and the sister of the petitioner is residing in his house and the petitioner has admitted during his cross examination that he is also looking after her and her minor daughter and the petitioner remains busy at his place of work since morning till evening. He has further submitted that no doubt that respondent is living in the house of her parents and she is financially dependent upon her brother but, such financial dependency of the respondent on her brother cannot deprive the custody of the minor child on this ground. He has further submitted that ld. Counsel for the petitioner has tried to mislead this court by way of stating that the petitioner is earning Rs.6000/ per month. Whereas, from the testimony of the petitioner, it is clear that he is earning Rs.4000/ per month and he travels from Vinod Nagar, Delhi to Vasundhara, Ghaziabad. He has further submitted that Ld. Counsel for the petitioner has made such submissions to show the financial soundness of the petitioner, but, the petitioner has failed to bring on record any document to show that he is earning Rs.6000/ per month. He has further submitted that petitioner cannot provide sufficient time to the child and even during the meeting of the child with the petitioner, the child has flatly refused to talk with the petitioner and the child cannot be pressurized to live with the petitioner who did not come to see the child even on his birth nor the petitioner has shown any act, vide which, it may be inferred that it may be proved for the welfare of the child to shift the custody of the child to the petitioner. G. No.37/2009 Ramesh Chand Saklani v. Daizy Page 9 of 17 He has further submitted that welfare of the child is the paramount consideration for the purpose of determination of custody of child. He has further submitted that wish and will of the child cannot be negatived at the time of determination of custody of the child.
18. I have given thoughtful consideration to the submissions made by the ld. counsels for the parties.
19. The principles to be kept in mind by the court in relation to custody of a minor child are well settled. While considering the custody of a minor child, paramount consideration of the court is the welfare of the child and not the rights of the parents under the statue for the time being in force. It is neither the welfare of the father nor the welfare of the mother, which the court has to consider but, it is the welfare of the minor and of the minor alone which is of paramount consideration. A child cannot be treated as a chattel.
20. In 'Rosy Jacob vs Jacob A' Chakramakkal MANU/SC/0260/1973:
(1973) 1SCC 840', it was observed:
... The family is normally the heart of our society and for a balanced and health growth of children it is highly desirable that they get their due share of affection and care from both the parents in their normal parental home. Where, however, family dissolution due to some unavoidable circumstances becomes necessary the Court has to come to a judicial decision on the question of the welfare of the children on G. No.37/2009 Ramesh Chand Saklani v. Daizy Page 10 of 17 a full consideration of all the relevant circumstances. Merely because the father love his children and is not shown to be otherwise undesirable the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and , who, in addition, because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them. The children are not mere chattels nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changes social conditions, yielded 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....
21. The case of the parties have to be seen in the backdrop of above stated preposition of law. The child master Sudhanshu is a school going child who is stated to be studying in 4th class and the child is living with G. No.37/2009 Ramesh Chand Saklani v. Daizy Page 11 of 17 the respondent from the very beginning of his birth and the child is going to the school. There is nothing on the record that child is not going to the same school or he is not doing his study well.
22. The plea of the petitioner in the petition is that he is earning Rs.4000/ per month, whereas, respondent is dependent upon her parents for financial assistance, as such she cannot financially assist the child. In the considered opinion of this court, the financial capacity of a guardian to maintain the minor cannot be sole criteria for the custody of a child. The capacity would include physical and the moral capacity and the capacity to look after the physical, psychological and moral well being of the child. Admittedly, the petitioner is working in a Shoe Factory, as per averments made in the petition and affidavit Ex.PW1/A. The petitioner is earning Rs.4000/ per month, but at the same time respondent is a graduate lady and since the child has shown his desire to not talk or to live with the petitioner. The capacity to maintain the child cannot be judged in terms of money and if this criteria is adopted, then poor parents would not be able to retain the custody of their children. So, the financial condition of the respondent cannot be the sole criteria to transfer the custody of the child from the respondent to the petitioner. Mere fact that the petitioner has financial resources to give some extra benefit to the children cannot entitle him to claim the custody, as a matter of right. The custody cannot be transferred on the basis that respondent has no independent source of income or she is anyway supported by her parents with whom she is G. No.37/2009 Ramesh Chand Saklani v. Daizy Page 12 of 17 residing.
23. The petitioner has to show that welfare of the child lies in his custody rather than in the custody of respondent. The child is around 8 years old. The respondent is a graduate lady. The child is studying in class 4 th and there is nothing on the record to show that child is not doing his studies properly. There is nothing on the record that the child has learnt any negative habit, which is not conducive for his growth. There is nothing on the record that respondent is not properly bringing up the child. There is nothing on the record to show that respondent suffers from any disqualification, which may enable this court to transfer the custody of the child to the petitioner nor any misconduct or misdeed on the part of respondent is brought on record by the petitioner. The company of the mother is more affectionate. No evidence is brought on record by the petitioner which may disqualify the respondent from the custody of the child. Hence, the testimony of petitioner is not relied upon.
24. The respondent has submitted that no doubt, the petitioner is an earning hand male, but, this cannot be treated as sole criteria to ascertain the matter of custody to the petitioner. He has further submitted that respondent is an educated lady. She is a graduate and the sister of the petitioner is residing in his house and the petitioner is also looking after her sister and her minor daughter and the petitioner remains busy at his place of work, since morning till evening. The ld. counsel for the respondent has submitted that no doubt that respondent is living in the G. No.37/2009 Ramesh Chand Saklani v. Daizy Page 13 of 17 house of her parents and she is financially dependent upon her brother, but, such financial dependency of the respondent on her brother cannot deprive the custody of the minor child, on this ground. He has further submitted that petitioner cannot provide sufficient time to the child and even at the time of arguments, the child has flatly refused to talk or live with the petitioner and in my considered opinion, the child cannot be pressurized to live with the petitioner, who did not come to see the child even on his birth nor the petitioner has shown any act, vide which, it may be inferred that it may be proved for the welfare of the child to shift the custody of the child to the petitioner. In my considered opinion, the wish and will of the child cannot be negatived at the time of determination of custody of the child.
25. During the arguments, the ld. Counsel for the petitioner has submitted that the petitioner is earning Rs.6000/ per month. Whereas, from the petition and testimony of the petitioner vide his affidavit Ex.PW1/A, it is clear that petitioner has deposed that he is earning Rs.4000/ per month. Thus, it is clear that such submission made by the ld. Counsel for the petitioner that the petitioner is earning Rs.6000/ per month is beyond of the pleading, as well as, contrary to the testimony of the petitioner. Even otherwise the petitioner has failed to place on record any documentary proof that he is earning Rs.6000/ per month. It appears to the court that the ld. Counsel for the petitioner has made such submission to show the higher financial status of the petitioner. The petitioner is admittedly G. No.37/2009 Ramesh Chand Saklani v. Daizy Page 14 of 17 residing at Vinod Nagar, Delhi and working at Vasundhara, Ghaziabad and the petitioner is also bearing the daily travelling expenses to arrive at his place of working. Admittedly, the petitioner is also maintaining his sister and her daughter who are residing in the house of the petitioner and thus, it is clear that the petitioner has attempted to show higher income for taking custody of the minor child. No doubt, the respondent is not an earning hand lady. She is financially dependent on her brother. But, in the considered opinion of this court, such financial dependency of the respondent on her brother cannot deprive the respondent from the custody of child Master Sudhanshu who is merely 8 years old child and admittedly the respondent is a graduate lady. Whereas, the petitioner is 12th class passed. Thus, the educational standard of the respondent is also higher than that of the petitioner and such higher standard of education may be proved to be good for the child.
26. In the case in hand, the petitioner has claimed the relief U/s 25 of Guardians & Wards Act.
27. Section 25 of Guardians and Wards Act, provides as under : Title of guardian to custody of ward - (1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order, may cause the ward to be arrested and to be delivered into the custody of the guardian.
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(2) xxxxx (3) xxxxx
28. Four things are necessary for entertaining an application U/s 25 of Guardians and Wards Act. Firstly, the application must be filed by a guardian of the person of the minor. Secondly, the guardian must have had the custody of the minor. Thirdly, the minor must have been removed from such custody and lastly, it must in the opinion of the court, be for the welfare of the minor to return the custody to the guardian.
29. Coming to the case in hand, the respondent is living in the house of her parents since 04.01.04 and the child was born on dated 18.08.04 in the house of her parents. Meaning thereby the petitioner never had the custody of the child, so, the question of return of the child to the petitioner does not arise. Thus, I am inclined to hold that the petition filed by the petitioner U/s 25 of Guardians & Wards Act is not maintainable.
30. In view of the request made by the respondent in person, this court has also taken judicial notice of the fact that in one meeting of the petitioner with the child held in this court room, in the recent past, the petitioner has stated in the opened court that he desires that the child Sudhanshu should become a criminal, so that he may cause trouble to respondent, with whom the child is living and the child has also apprised this court that the petitioner tutors him against the respondent and causes irritation to the child even during the meeting in the court room and he is G. No.37/2009 Ramesh Chand Saklani v. Daizy Page 16 of 17 no more desirous to talk or meet with the petitioner. Thus, from such conduct of the petitioner, it is clear that the petitioner is no more interested in the welfare of the child.
31. So, this court has come to the conclusion that the petitioner does not think about the goodness of the child and he cannot be called as well wisher of the child Sudhanshu and giving custody to the petitioner may be proved to be hazardous for the child, and this court has no hesitation in saying that the petitioner is not well wisher of the child. Since the welfare of the child is the condition precedent for giving custody of a child and the petitioner has failed to show that the shifting of the custody would be for the welfare of the child. So, in view of above discussion, I am inclined to hold that the petitioner has failed to discharge his burden of proving issue No.1, so, issue no.1 is decided against the petitioner.
32. Relief : In view of my findings on the issue No.1 against the petitioner, the petition of the petitioner is dismissed, being not maintainable U/s 25 of Guardians & Wards Act and also being devoid of merit. There is no order as to the cost. File be consigned to record room. Announced in the open Court on 22.08.12 (Pawan Kumar Matto) Additional District Judge03 (East), Karkardooma Courts, Delhi / 22.08.2012 G. No.37/2009 Ramesh Chand Saklani v. Daizy Page 17 of 17