Punjab-Haryana High Court
(O&M;) Neelam vs Man Singh And Anr on 19 November, 2014
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
FAO No.1556 of 2008 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
FAO No.1556 of 2008
DATE OF DECISION: November 19, 2014.
Neelam ....APPELLANT
VERSUS
Man Singh and another ...RESPONDENT
CORAM :HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
HON'BLE MRS. JUSTICE SNEH PRASHAR
Present: Mr. Madan Pal, Advocate
for the appellant.
Mr. S.K. Verma, Advocate
for the respondents.
****
SNEH PRASHAR, J.
1. The present appeal under Section 10 of the Guardian and Wards Act, 1890( for short "the Act of 1890") was filed by appellant- Neelam assailing the order dated 09.05.2008 of Civil Judge (Senior Division), Kaithal by virtue of which her petition seeking directions to Man Singh and his wife Murti Devi(respondents) to hand over to her the custody of her minor daughter Muskan, was dismissed. RASHMI 2015.01.15 15:14 I attest to the accuracy and integrity of this document FAO No.1556 of 2008 2
2. The facts gathered from the record are as under:
Appellant-Neelam was married to Subhash Chander(since deceased) son of Man Singh(respondent No.1) about 7 years prior to the date of institution of the petition. A daughter namely-Muskan was born out of the wedlock on 28.02.2002. Unfortunately Subhash Chander died on 15.10.2005 at Karnal.
The appellant alleged that after the death of her husband a false case under Section 306 of the Indian Penal Code was got registered against her by her parents-in-law/respondents. She was taken in custody and in her absence her daughter Muskan, who was at her parental village Jundla, fell ill and was taken away by the respondents to their village, Sirsal.
Pleading that she had since been released on bail and that the behaviour of the respondents with minor Muskan was not good as she was being teased by them on one pretext or the other and that Muskan was in growing age and required special attention of her mother, the appellant prayed that she being the natural guardian be handed over the custody of minor Muskan.
3. The respondents contested the petition and in their joint written reply, they disclosed that after Muskan was born on RASHMI 2015.01.15 15:14 I attest to the accuracy and integrity of this document FAO No.1556 of 2008 3 28.02.2002, appellant Neelam and her husband-Subhash Chander had started living separately. During that period, one Bahadur son of Sunder, resident of Village Jaani started visiting the appellant at her house claiming to be her brother by religion. Once appellant-Neelam was found in a compromising position with Bahadur by her mother- in-law(respondent No.2). Despite objection from her inlaws Bahadur carried on to visit Neelam in absence of her husband-Subhash Chander. After some time, Neelam and her brother Pala Ram and said Bahadur shifted the entire household articles of Subhash Chander to Karnal and persuaded him to come and live with them at Karnal. Because of the threatenings given to him, he accepted their demand. Subhash Chander visited the respondents time to time and narrated to them the immoral activities of his wife Neelam and Bahadur. On 15.10.2005 Subhash and Neelam visited Village Sirsal for paying obeisance at Mata but did not visit the house of the respondents. On 17.10.2005 , at about 5.00 am., the police intimated the respondents that dead body of Subhash Chander was lying on the railway track. A suicide note was recovered from the dead body by the police of GRP, Karnal which revealed that Neelam with the help of said Bahadur and her brother Pala Ram, forced Subhash RASHMI 2015.01.15 15:14 I attest to the accuracy and integrity of this document FAO No.1556 of 2008 4 Chander to commit suicide. A Criminal Case bearing FIR No.176 dated 24.10.2005 under Section 306 and 120-B of the Indian Penal Code was registered in which all the aforesaid three persons were facing trial.
It was further alleged by the respondents that the custody of minor Muskan was handed over to them by father of the appellant himself in a Panchayat held at Village Jundla on 06.12.2005 and a writing to the said effect was recorded. Neelam having been released on bail vide order dated 10.01.2006 had filed this petition after such long time.
Lastly, the respondents submitted that minor Muskan was being brought up by them in a good atmosphere and under proper care and attention. On the other hand, appellant Neelam was involved in immoral activities and was facing trial in a criminal case in which she could be convicted and sentenced and as such she could not be said to be a good mother or guardian. The atmosphere in which she was living could also adversely affect the minor. Also she had no independent source of income and was totally dependent on her parents. Therefore, she would be unable to provide good food, clothes and education etc., to the minor. Submitting that they were RASHMI 2015.01.15 15:14 I attest to the accuracy and integrity of this document FAO No.1556 of 2008 5 providing good education and healthy atmosphere to the child, the respondents prayed for dismissal of the petition.
4. Both the parties adduced evidence in support of their respective claims. Considering the evidence available and the arguments addressed by learned counsel for the parties as well as the welfare of minor Muskan, learned trial Court dismissed the petition filed by Neelam.
Feeling aggrieved by the order dated 09.05.2008 passed by the Civil Judge(Senior Division) Kaithal, Neelam filed the instant appeal.
5. It was argued with vehemence on behalf of appellant Neelam that she being the mother of minor Muskan is her natural guardian. She is employed in a hospital and is drawing handsome salary as was proved from the certificate Ex. PL issued by Jagdamba Hospital, Karnal. The dead body of her husband Subhash Chander was found on a railway track which indicated that he had met with a railway accident, but at the instance of the respondents, who had various scores to settle with Neelam, she was falsely involved in a case under Section 306 of the Indian Penal Code in respect of death of her husband. When she was in Judicial Custody the respondents RASHMI 2015.01.15 15:14 I attest to the accuracy and integrity of this document FAO No.1556 of 2008 6 taking advantage of her absence managed to take away minor Muskan from the parents of Neelam with whom she was residing. Learned counsel asserted that after the death of the father the best and natural guardian of the minor is her mother and not her grand parents. The love, affection and company of the mother is more important for the minor.
6. Learned counsel further urged that while Neelam is residing in Karnal, a city having reputed educational institutions and other modern facilities, the respondents are residing in a village and being old persons are incapable of taking proper care of the minor.
To support his argument that the interest of the minor was paramount and it was important to analyse, who can take proper care of the minor, learned counsel relied upon Poonam Datta Vs. Krishanlal Datta and others, AIR 1989 Supreme Court, 401. In this case dispute between the parties was with regard to custody of minor son namely Vaibhav Datta. His mother appellant Poonam Datta filed a writ of habeas corpus alleging that her minor son had been detained by respondent Nos.1 to 3 ( grand parents). The High Court dismissed the petition summarily allowing respondent No.1(Krishanlal Datta) to receive the interest accruing on the Fixed Deposit Receipts RASHMI 2015.01.15 15:14 I attest to the accuracy and integrity of this document FAO No.1556 of 2008 7 lying in the name of the minor child Vaibhav Datta, as long as the minor was in his legal custody. Appellant Poonam Datta filed a speical leave petition before the Hon'ble Supreme Court.
Considering the totality of circumstances, Hon'ble Apex Court directed that minor shall continue to study in the school situated at Modi Nagar, in which appellant was a teacher. Respondents had also shifted to Modi Nagar under the orders of the Court and were prepared to stay at the said place. Therefore, it was further ordered that neither of the party would be permitted to withdraw the minor child without permission of the Court. Minor Vibhav was allowed to live with his mother but during every week-end( that is Saturday and Sunday) respondent No.1(grand father) was held entitled to take him from the appellant and keep him in the company of the respondents at his residence. The parties agreed to continue with the arrangement until either of them approached for appropriate guardianship proceedings and got a declaration.
7. Indeed, the love and affection of a mother is incomaparable with anyting on the earth and legally she is a natural guardian of the child up to the age of 5 years. In ordinary cricumstances she would be the best person with whom the minor should reside. However, the RASHMI 2015.01.15 15:14 I attest to the accuracy and integrity of this document FAO No.1556 of 2008 8 facts in hand are quite peculiar and are totally distinguishable from the facts of Poonam Datta's case (supra) and certainly demand a serious consideration. Subhash Chander father of the minor child and husband of appellant Neelam did not die a natural death. His dead body was found on a railway track and it was said to be a case of suicide. A criminal case of abetting suicide by the husband was registered against appellant Neelam. The allegation was that she was of immoral character and was having extra marital affair with a person named Bahadur. Appellant Neelam along with other persons had faced trial in that criminal case.
8. Even though, as submitted by learned counsel for the appellant the said criminal case has since been decided and appellant Neelam and her co-accused stand acquitted in the said case, yet the fact remains that she was acquitted on being given the benefit of doubt as the prosecution could not prove its version.
In a criminal case the yard stick of evidence for proving an allegation/charge is much higher than in a civil case.
The fact indisputable is that Subhash Chander, husband of appellant-Neelam, committed suicide which indicated that he had some pressure on his mind. From the charges levelled against the RASHMI 2015.01.15 15:14 I attest to the accuracy and integrity of this document FAO No.1556 of 2008 9 appellant, on which she faced trial, further transpires that appellant Neelam and her husband Subhash Chander were not having cordial relations.
9. After appellant Neelam was arrested in the criminal case her minor daughter was in the custody of her parents. It was not her case that the respondents had forcibly taken custody of the minor child from her parents. A perusal of the writing Ex.RW4/2 reveals that on 06.12.2005 a Panchayat was convened in village Jundla and in the said Panchayat it was decided that the custody of minor Muskan be given to the respondents. It was then that Baru Ram father of appellant Neelam handed over the custody of minor Muskan to the respondents. Neelam failed to controvert the said writing.
10. From the statement of RW1- Jogi Ram, Head teacher, of Government Girls Primary School, Sirsal, Distt. Kaithal, and the dowuments EX. R1 and Ex. R2 i.e., school record, it stands established that Muskan was admitted in the said school in first standard by Suresh Kumar, her uncle. Admittedly, ever since the custody of minor Muskan was handed over to her grand parents(respondents) i.e. since 06.12.2005, she is residing with them.
As far as the financial sources of the respondents are RASHMI 2015.01.15 15:14 I attest to the accuracy and integrity of this document FAO No.1556 of 2008 10 concerned, there is nothing to indicate that they are unable to take care of the minor or have no finances to bear.
11. On the other hand, the certificate Ex. P1 of private hospital proved by the appellant indicates that she was a part time worker. As per her own statement she was residing with her parents which shows that she for her finances and security was mainly dependent on her parental family. Be that as it may, in view of the facts and circumstances surrounding appellant Neelam and other relevant facts as noticed above, we are of the considered opinion that it shall not be in the interest of the minor child that her custody is given to appellant Neelam.
Importantly, vide order dated 14.08.2014, the respondents were directed to produce the minor child, who by now is aged 13 years, to enquire her option. Minor Muskan appeared and in the open Court she out rightly expressed her desire to live with her grand parents(respondents) and refused to go with her mother.
12. There are no two thoughts that the welfare and interest of the child is a paramount consideration for us. Apparently, the minor child is residing with her grand parents for the last almost 9, years. She is emotionally attached to them. It will be very difficult for her to RASHMI 2015.01.15 15:14 I attest to the accuracy and integrity of this document FAO No.1556 of 2008 11 change her place and stay with a family, her mother included, with whom she has no connection ever since she has started understanding things. Moreso, the minor has entered the age group where she is able to understand worldly relations to some extent and it will be very hard for her to accept separation from her grand parents. Therefore, we are of the considered view that the custody of the minor child should remain with the grand parents.
Thus, the conclusion irresistible is that the findings of learned trial Court declining the custody of the minor child to appellant Neelam deserves no intervention.
13. At the end of the matter learned counsel for the appellant prayed that appellant Neelam being mother of the minor child be allowed visiting rights. At this juncture, we find that it will do no good except injure or exploit the emotions and sentiments of the minor child if the mother is allowed to visit her at different intervals. There have been allegations of unchastity against the appellant. She has also faced trial in a criminal case that too relating to the unnatural death of father of the minor. For that reason, the visits of mother may adversely affect the minor girl psychologically and will disturb the atmosphere and the people she is living with. The minor girl is said to RASHMI 2015.01.15 15:14 I attest to the accuracy and integrity of this document FAO No.1556 of 2008 12 be 13 years old. After another 5 years she will be a major and will attain the age of majority and will be in a position to take appropriate decision regarding maintaining relations with the mother.
14. With the above observations, finding no merit in the appeal it is hereby dismissed.
(AJAY KUMAR MITTAL) (SNEH PRASHAR)
JUDGE JUDGE
19.11.2014
rashmi
RASHMI
2015.01.15 15:14
I attest to the accuracy and
integrity of this document