Delhi District Court
By This Order I Shall Dispose Of An ... vs Unknown on 13 September, 2013
IN THE COURT OF SH. SAMEER BAJPAI, JSCCCUMASCJ
CUMGUARDIAN JUDGE (WEST): DELHI
GP No. 51/13
Smt. Santosh
vs
Sh. Shyam Sunder
O R D E R
13.09.2013
1. By this order I shall dispose of an application under Section 12 of Guardians and Wards Act as moved by the petitioner along with the main petition.
2. The case of the petitioner in brief is that she is the wife of the respondent and mother of minor children Master Bhavesh and Master Ganesh, who were born on 07.08.2006 and 07.11.2008 respectively. The respondent is not in a position to maintain the minor children due to insufficient income. Further, the petitioner is a working woman and is able to maintain the children. The conduct and behaviour of the respondent and his family members was always rude towards the petitioner and the respondent used to beat her on petty issues. Just after the marriage, the respondent and his family members blamed the petitioner of having illicit relations with some other person and on this ground, the respondent had filed a divorce petition when GP No. 51/13 Page No. 9/1 the petitioner was pregnant. The petitioner also filed a complaint before CAW Cell and during the investigation the concerned court directed the petitioner to get a DNA test performed and the report was in her favour. On 13.03.2013, the petitioner along with her children went to her parental home to attend a marriage ceremony of her younger sister. In the meantime, the respondent took some jewellery articles of the petitioner and went away to his father's place and thereafter, he did not return. On 19.03.2013, the petitioner went to her matrimonial home to talk to the respondent but he and his family members mercilessly beaten the petitioner and with the intervention of the police, the matter was resolved. On 08.05.2013, in the morning, both the children went to their school but they did not come back. On inquiry, the petitioner came to know from the respondent that he took the children away directly from the school and left them to his native place with his parents and since then, the children are in illegal custody of the respondent. The respondent is not in a condition to maintain the children as he has no sufficient income and further he is a drunkard. Further, the petitioner is capable to look after the children as she is doing a job. Under these facts, the petitioner prays for interim custody of the minor children.
3. In reply, the submissions of the respondent are that the petitioner has not approached the court with clean hands. Further, the parties have settled their disputes in term of GP No. 51/13 Page No. 9/2 compromise dated 11.12.2008 in Mediation Centre, Tis Hazari Courts in divorce petition no. 173/08 as filed by him under Section 13 (1) (1A) of the Hindu Marriage Act and as per the settlement, the parties have agreed to live separately in a rented accommodation and resided at six different places as mentioned. Further, at the time of settlement, both the minor children had been left in the custody of their parental grand parents with whom the respondent is living and working as a tailor. Further, the welfare of both the children have been reasonably looked after by the respondent. Further, it is settled law that the paramount consideration is the welfare of the children and not the legal rights of the parents. Further, the respondent can look after the children in a better way as he himself is working and living along with his parents and on the other hand, the petitioner is a working lady and there is nobody to lookafter the children in her absence.
4. I have gone through the record and heard arguments at length on behalf of the parties. I have also interacted with the children as well as with the parties in my chamber.
5. During the course of arguments, the petitioner revealed that she has been working in Aaganbari and her job is a kind of semi government job and in coming future, she will become permanent. The petitioner alleges that the respondent is doing nothing and is a drunkard. The respondent admits that GP No. 51/13 Page No. 9/3 he is doing a tailoring job and living with his parents. Apparently, the petitioner is in a better financial condition as she is doing a job in Aanganbari.
6. Condition (iii) of the settlement which has been reproduced latter on in para 7 is also important to see the financial condition of the respondent. This settlement was made between the parties in Mediation Cell during divorce proceedings as initiated by the respondent. Condition (iii) reveal that it was agreed that if the respondent could not pay the rent of the tenanted premises then it would be the responsibility of his father. So when the respondent is not capable of paying even the rent of the tenanted premises, how will he maintain the children.
7. It is very important to note here that the children have been removed from the custody of the petitioner very recently i.e. on 08.05.2013. Although the respondent denies the fact that the children have been removed from the custody of the petitioner on the above mentioned date but during interaction in my chamber, the children revealed that just a few months back, they had been living with the petitioner and the respondent. This fact is made clear from the statement of the respondent in his written statement also when he says that during divorce proceedings a settlement took place and he lived with the petitioner in six different rented accommodations. In para 1 of GP No. 51/13 Page No. 9/4 the written statement, the respondent himself mentions that from 25.07.2011 till date, the parties lived in a rented accommodation at WZ394, Madipur Village, Delhi. During the interaction, the court found that the children were very comfortable with the petitioner, otherwise in most of the cases after a time gap, the children are comfortable only with that party with whom they live and they do not want to go to the other party. It is the fortune of the petitioner that the children have attachment with her and are very very comfortable with her. The children are just aged about 7 and 5 years and in my opinion being the mother, the petitioner will be in a much better position to give them comfort and to take care of them. Although the respondent is stated to be living along with his parents who are also capable of taking care of the children but it is the primary duty of the parents to take care of about the children and not that of the grand parents.
8. During the course of arguments, the petitioner revealed that during the divorce proceedings, the matter was sent to Mediation Centre and at that time, the petitioner was pregnant and the respondent made allegations of adultery against her. She further said that she had made a complaint to the police also that the respondent questions her character and wants that she should get a DNA test done. On the direction of the court, the petitioner placed on record all the proceedings to show that the respondent wanted to get the DNA test done. It is GP No. 51/13 Page No. 9/5 really shocking to see that in the Mediation Centre the respondent settled issues only with the condition that the petitioner would go under a DNA test to ascertain the paternity of the child. Relevant portion of the proceedings before the Mediation Centre are necessary to be reproduced here as under:
"11.12.2008 Pr: Smt. Santosh, complainant present in person alongwith her uncle Sh. Jagdish Kumar. Sh. Shyam Sunder, Bishan Lal Sahai, Smt. Dayavati, Ms. Jyoti Kiran, accused present in person.
This suit has been referred for mediation from the court of Sh. Alok Aggarwal, ASJ, Delhi. Process of mediation explained to the parties. After mutual discussion the parties have reached at an amicable settlement on the following terms and conditions:
i) It is settled that Smt. Santosh will go under a DNA Test by a recognized/Govt. hospital/doctor to ascertain that the newly born male child belongs to Sh. Shyam Sunder and Smt. Santosh. The newly baby was born on 07.11.2008.
ii) The whole expenses of the DNA will be bore by the husband Sh. Shyam Sunder.
GP No. 51/13 Page No. 9/6
iii) That in case the DNA test report reveals the newly baby belongs to the aforesaid parties then the respondent Sh. Shyam Sunder would take his wife Smt. Santosh after two days of the DNA reports. It is also settled between the parties that the aforesaid parties i.e. Sh. Shyam Sunder & Smt. Santosh would start to reside separately on a tenanted premises.
In case Shyam Sunder could not pay the rent of the tenanted premises then it would be responsibility of Sh. Bisan Lal Sahai, the father of Sh. Shyam Sunder to pay the rent of the tenanted premises. That after Santosh joins the company of Shyam Sunder then she would withdraw/ quashed the FIR no. 350/2008 P.S. Punjabi Bagh u/s. 498A/406/34 IPC. Similarly, the husband Sh. Shyam Sunder would withdraw the case filed by him against Santosh u/s. 13 (1) (ia) HMA which is pending in the court of Sh. Pankaj Gupta ADJ, Rohini, Delhi in which the next date is fixed as 12.01.09."
It is surprising that the respondent agreed to take his wife back only when the DNA test report confirmed that the newly born baby belonged to him. It was the fortune of the petitioner that the DNA test was positive for her and confirmed that the child belonged to the respondent. In my opinion, a husband who is so much suspicious about his wife that he compels her to go through a DNA test has no moral authority to keep the children. The respondent infact tarnished the self respect and dignity of the petitioner. When the respondent is not GP No. 51/13 Page No. 9/7 even capable of behaving like a human, how can he treat the children in a human manner and what moral values he will teach to the children.
It is very rare that during the pendency of the petition, custody of a child is transferred to the other party but this case is an exception. In my opinion, it is only the petitioner who, at this stage, is entitled for custody of the children. At this stage, the petitioner is on a better footing to have the custody of the children. Even if the custody of the children is shifted to the petitioner, they will not suffer their studies as the school where they are studying at present is very near from the place of the petitioner also.
9. The respondent is directed to handover the custody of the children to the petitioner immediately. The children shall be in the custody of the petitioner till the final disposal of the petition. SHO of Police Station Punjabi Bagh is directed to ensure that the custody of the children is handed over to the petitioner by 21.09.2013.
10. The respondent and his parents are given visitation rights in respect of both the children on 1st and 3rd Saturday of every month from 3.00 to 5.00 p.m. in the Visitation Room, Tis Hazari Courts, Delhi. Further the respondent shall be at liberty to see both the children in their school but without causing any GP No. 51/13 Page No. 9/8 inconvenience to the school staff. The petitioner is also directed to bring the children to the court just before the visitation time on first four visitation days so that the court can have an interaction with them and know about their condition. Announced in the open Court today the 13th September, 2013.
(SAMEER BAJPAI) JSCCcumASCJcum Guardian Judge (West), Delhi 13.09.2013 GP No. 51/13 Page No. 9/9