Delhi District Court
Sh. Sunil Kumar Sharma vs Smt. Sunita on 10 January, 2007
*1*
IN THE COURT OF SHRI RAKESH KUMAR SHARMA
GUARDIAN JUDGE : DELHI.
Guardianship Petition No. 82/2004
Sh. Sunil Kumar Sharma,
S/o Late Sh. Budhi Ram,
R/o C-30, Palika Enclave,
Moti Bagh,
New Delhi. ...PETITIONER
V e r s u s
Smt. Sunita
W/o Sh. Sunil Kumar Sharma
R/o 141, Nirankari Colony,
Near S.N. School,
Delhi
Also at:
Telephone Exchange,
Ministry of Railways,
Railway Board,
Rail Bhawan,
New Delhi. ...RESPONDENT
Date of institution : 20.04.2004
Date of Judgment : 10.01.2007
JUDGMENT
1. This is a petition U/S 25 of the Guardian & Wards Act, 1890 filed by the petitioner. It is stated in the petition that the petitioner was lawfully married to the respondent on 26.11.1993 at Delhi according to the Christian rites and customs. From the wedlock Master Sandeep Kumar was born on 15.11.1996 and the *2* other son was born on 06.03.2001. After the discharge, the respondent went straight to her mother's place and when she came back after three months, Master Sandeep was not with her and respondent stated that she had left the child with her mother who would look after the child because she could not devote sufficient time for the upbringing of the child. The petitioner many times made requests to bring back the child to his house but the respondent laid down the condition that the petitioner must buy a bigger flat in a good locality and only then, she would bring the child Sandeep to live with them. The petitioner arranged the money by taking loan and bought a bigger flat. Till 01.10.2000, the respondent kept the child with her mother despite repeated requests of the petitioner. She did not bring the child even on the death of the real brother of the petitioner. She never provided even the necessary requirement of milk. She did not have the interest to feed the child apart from necessary love and affection which only a mother can impart to the child. The child was brought only on 01.10.2000 by the respondent on the occasion of Havan ceremony of the new flat. On 03.10.2000, the respondent again left the matrimonial house alongwith the child Master Sandeep without any reason. The petitioner enquired about the well being of the child and the respondent may times telephonically. He also sent gifts for the child many times. But *3* the respondent never accepted those gifts. The petitioner is employed in IGNCA, Janpath, Delhi and is having a much more spacious accommodation than the respondent. The mother of the petitioner will retire in August from her job as a teacher in NDMC, Primary School, Race Course Road, New Delhi and she can devote full time to look after the children very well in the absence of the petitioner. On the other hand, mother of the respondent is aged about 80-85 years and it is very much difficult for her to look after the welfare of the children at such a ripe age. Besides, the petitioner and his mother belong to an orthodox family and they follow the rites and rules of God very strictly. The atmosphere in the house of the petitioner is very pure and positive. The petitioner has not seen the younger child even once. It is really very bad for the proper growth and personality of the children not to get the love and affection of their father. The welfare of the minor children lies with their custody with the petitioner. Hence, the present petitions seeking a direction to respondent to deliver the custody of both the children to the petitioner.
2. The respondent has contested the petition by filing a written statement/reply. She has not denied the marriage between the parties and the birth of both the children from the wedlock. The other contents of the petition are denied by her.
*4* The respondent has submitted that the petitioner had thrown her out of the matrimonial home on 04.10.2000 when she was in the third month of her pregnancy. Since then the respondent has been living with her mother. The second son was born on 06.03.2001 at the house of her mother. The child Sandeep lived with the petitioner till 04.10.2000. The respondent is working as a Supervisor (Telephones) in the Railway Board. The behaviour of the mother of the petitioner towards the respondent and the elder son has always been harsh, abusive, aggressive and punitive. On a couple of occasions, when the mother of the petitioner came to Tis Hazari Courts with the petitioner in the matrimonial court, she abused the respondent in a filthy language outside the court room. In these circumstances, the welfare of the children would not be safe in the hands of the mother of the petitioner.
3. The mother in law who has no qualms and compunctions and hurls abuses unheard in a educated family, cannot be expected to bestow love and affection on the children. The mother of the respondent has all the time in the world to devote to the children. In addition, the respondent gets offs on Saturdays' and Sundays' and gets holidays and avails casual leave, earned leave and medical leave. After returning from her office, the respondent has enough time to look after the children *5* in their best interests. The conduct of the petitioner disentitles him from even seeing the children, particularly the younger one, whose paternity was denied by him while throwing the respondent out of the matrimonial home on 04.10.2000. The respondent has sought dismissal of the petition with costs.
4. From the pleadings of the parties, following issues were framed:
ISSUES
1. Whether it is in the interest and welfare of the minor children Sandep and Samsung that their permanent custody is granted to the petitioner? OPP
2. Relief.
5. The petitioner has failed to examine any witness despite a number of opportunities and his evidence was closed by the order of the Court.
6. I have heard ld. Counsels for the parties and have also gone through the record.
7. My issue-wise findings are as follows:-
Issue No. 1
The burden of proving this issue was on the petitioner. As noted above, no evidence has been led by the petitioner. Hence, there cannot be any doubt that he has failed to prove the *6* issues. The issue is accordingly decided in favour of the respondent and against the petitioner.
Issue No. 2 R E L I E F
8. In view of my findings on issue No. 1, the petition is dismissed. No costs. File be consigned to Record Room.
Announced in the open court on 10.01.2007.
(Rakesh Kumar Sharma) Guardian Judge : Delhi.