Delhi District Court
Ms. Rupa Rehal vs Mr. Jas P Al Singh Rehal on 15 September, 2010
IN THE COURT OF SH. SANJAY SHARMA, JSCC-CUM-ASCJ-
CUM-GUARDIAN JUDGE (WEST): DELHI
G.P. No. 45/09
Unique Case I.D. No. 02401C057607209
Ms. Rupa Rehal,
W/o Sh. Jaspal Singh
R/o BE-352, Gali No. 6,
Hari Nagar, New Delhi-110064.
.............Petitioner
Versus
Mr. Jas p al Singh Rehal
S /o Sh. Jeet Singh Rehal
R/o 1917 A/19, Govindp uri Extension,
Kalkaji, New Delhi 110019.
Also at;
B 46, DDA Slum Quarters,
Kalkaji, New Delhi 110019.
..........Respon de n t
O R D E R
1. This is an application under Section 12 of the Guardia n s and Wards Act, 1890 (Hereinafter referred as 'the Act') filed by the petitioner for interim custody of Master Hars h Rehal.
2. Brief facts relevant for the disposal of the said application are that the petitioner has filed a petition under Section 25 of the Act for perma ne n t custody of Master Hars h Rehal. The petitioner was married to the responde n t on 11.10.200 0. From the wedlock, Master Harsh Rehal was born on 10.10.20 0 1. According to the petitioner, she was subjected to physical and mental cruelty soon after marriage for bringing insufficient dowry. The petitioner was driven out from her matrimo nial home on 26.05.200 9 and deprived from custody of her child. There are allegations, counter allegations, appre he n sio n s and counter apprehe n sio n s with which we are not presently concerned.
G.P. No. 45/ 0 9 Page 1 /63. The case of the petitioner is that she had the custody of Master Harsh Rehal till 25.05.20 0 9. The responde n t deprived her from the custody of Master Hars h Rehal on 26.05.20 0 9 under a designed conspiracy. The petitioner tried to offend her dignity and chastity and therefore, the petitioner made a complaint to PS Kalkaji and CAW Cell, Kirti Nagar, New Delhi.
4. It is further case of the petitioner that the responde n t is a single person and not capable of taking care of the child. The respond e n t has been disinherited by his parent s. The responde n t has no perma ne n t abode in Delhi and therefore, he has kept Master Hars h Rehal in the care and custody of her sister. The petitioner is living with her parent s where the atmos p h e re is harmo niou s and congenial. The parent s of the petitioner have sufficient mean s and resources. The petitioner and her parent s intend s to provide good eduction, proper nutrition, enabling environme n t, love and affection to the child. The responde n t is involved in various litigations and his maxim u m time is spent in the court. The petitioner is the nat ur al mother and entitled to interim custody of Master Hars h.
5. In the reply, the responde n t stated that the petitioner is living in adultery with Venu Priya. The petitioner was found in a compromising position with Venu Priya on 26.05.200 9. The responde n t was attacked by the said Venu Priya, resulta n tly, a Kalandra U/S 107 / 1 5 1 Cr.P.C. was registered. The petitioner had filed the complaint s after the incident of 26.05.200 9. The petitioner does not have sufficient mea ns for upbringing the child. Master Harsh Rehal is studying in Dehrad u n and staying in the Hostel. The child is receiving good education and atmosp he re conducive to his developme n t and welfare. It is stated that Master Hars h Rehal is studying in Hostel in Dehra d u n and is not in the custody of the sister of the responde n t. Education of the child would be adversely affected if his custody is given to the petitioner. The petitioner is not entitled to seek interim custody.
G.P. No. 45/ 0 9 Page 2 /66. I have heard argu me n t s of Sh. Khus h bir Singh, Adv. for the petitioner and Sh. Brijesh Oberoi, Adv. for the responde n t .
7. Ld. Counsel for the petitioner argued that the petitioner is the mother of the child. He argued that the petitioner had the custody of the child till 25.05.200 9 since his birth. He argued that the Kalandra was registered against Venu Priya at the insta nce of the responde n t and the petitioner was neither named as accuse d or otherwise in the said Kalandr a. He argued that the said person used to come for reiki treatme n t of the petitioner at the insta nce of the responde n t. He argued that the responde n t doctored the CD and photograp h s with a view to deprive the petitioner from the custody of Master Hars h Rehal. He argued that the allegations of adultery are false and frivolous.
8. Ld. Counsel for the petitioner argued that an infant child need care and affection of the mother and further, a mother cannot be deprived from the custody of the child on suc h frivolous grou n d s . He argued that financial stat u s of the petitioner is not a relevant consideration for deciding interim custody. He argued that the responde n t is disowned by the parent s and he has kept the child in Dehrad u n to keep him away from the petitioner. He argued that the responde n t is a single person and has no perma ne n t place of residence in Delhi. He argued that the responde n t has kept the child in care and custody of his sister. He argued that the child is neither receiving affection nor proper environme n t required for his growth and developme n t. He argued that the petitioner being a mother can provide him love and affect and all necessities needed for complete growth and developmen t. He prayed for interim custody of Master Hars h Rehal.
G.P. No. 45/ 0 9 Page 3 /69. Ld. Counsel for the responde n t argued that the petitioner is not entitled to interim custody as she is living in adultery. He argued that custody of Master Harsh Rehal cannot be given to the petitioner as it would aversely affect his tender mind. He argued that the petitioner was found in compromising position with another person on 26.05.20 0 9 and the incident was reported to the police. He argued that photograp h s placed on record shows that the petitioner is not entitled to seek interim custody of the child. He argued that Master Harsh Rehal is studying in 2 nd Class in Aryan School in Dehrad u n and is performing well in his studies. He argued that the responde n t is providing love and affection to Master Hars h Rehal. He argued that the responde n t is providing good education and enabling environme n t for his progress and growth. He argued that grant of interim custody to the petitioner may adversely affect the education of Master Harsh Rehal and further, cause unneces s a ry strain on his mind. He argued that there are no compelling circum s t a n c e s to deprive the respond e n t from the custody of the child.
10. Golden fabric which runs through custody jurispr u d e n ce is the welfare of the child. The court while deciding custody of the child performs a solemn and sacred function. The court exercise paren s patriae jurisdiction. Issue of the custody of the child is decided with the perspective of welfare of the child. The concept of welfare of the child is equally applicable at the interim stage. The court must give due weight to a child's ordinary comfort, content me n t , health, education, intellectu al developmen t and favourable surro u n di ng s. If minor is old enough to form an indepen de n t preference, the court must consider such preference as well, thoug h the final decision should rest with the Court as what is cond ucive to the welfare of the child. Controlling consideration governing the custody of the child is welfare of the child and not the right of their parents.
G.P. No. 45/ 0 9 Page 4 /611. This Court had a session with Master Hars h Rehal on 02.01.20 1 0 . Master Harsh Rehal is presently 9 years old and studying in 2 nd Class in Aryan School in Dehrad u . During the interview, he preferred to stay with the responde n t. He was not averse to meet the petitioner. During the meeting, Master Hars h Rehal appeared quite intelligent and mat ure enough to form his opinion with regard to his preference. The court mus t give due weight to his preference in arriving at a just decision with regard to his interim custody.
12. The petitioner is the mother and the responde n t is the father of the child. The responde n t has made arra ngeme n t for good education of Master Hars h Rehal. From the progress report filed on record, it appear s that Master Harsh Rehal is good at his studies. During his stay in Delhi, the petitioner and his sister also help him in his studies.
13. There are no compelling circum s t a n c e s to uproot Master Harsh Rehal from his familiar surro u n di ng s and place him in new environme n t. There is nothing on record to show that the association of the responde n t would not be cond ucive to the welfare of Master Hars h Rehal. At this stage, the court takes prima facie view of the case. The court cannot judge the veracity of the case of the petitioner and the responde n t at interim stage.
14. Equal affection of parent s is necess a ry for complete growth and developme nt of the child. The court mus t ensure that the child has the opport u nity to maintain, relish and reinforce his relations with his parent s. The petitioner is the mother of the child and the court must ens ure that she has the opport u nity to maintai n and reinforce her relations with the child.
G.P. No. 45/ 0 9 Page 5 /615. In view of the aforesaid discus sion, this court is not inclined to grant interim custody of Master Harsh Rehal to the petitioner. However, the petitioner shall be entitled to visitation rights as under:
(a). The petitioner is permitted to meet Master Harsh Rehal on 2 nd and 4 th Saturd ay of every mont h.
(b). The Principal of Aryan Public School is reques ted to allow the petitioner to meet Master Hars h Rehal in the School premises for two hour s on 2 nd and 4 th Satur d ay of every month from the date of the order.
(c). The petitioner will also be entitled to visitation / m e e ti ng rights during the vacations.
16. The period and timings of the visitation / m e e ti ng rights during the vacations will be fixed by the court before the comme nce m e n t of the vacations.
17. Accordingly, the application U/S 12 of G.W. Act filed by the petitioner is allowed.
Annou nced in the open Court today the 15 th September, 2010.
(SANJAY SHARMA) JSCC Cum ASCJ Cum GUARDIAN JUDGE (West) 15.09.2 0 1 0 G.P. No. 45/ 0 9 Page 6 /6 GP No. 45 / 0 9 15.0 9 . 2 0 1 0 Present : Proxy Advocate for the parties.
Vide separa te order anno u n ce d in the open court, the application U/S 12 of G.W. Act is disposed of as under:
(a). The petitioner is permitted to meet Master Harsh Rehal on 2 nd and 4 th Saturd ay of every mont h.
(b). The Principal of Aryan Public School is reques ted to allow the petitioner to meet Master Hars h Rehal in the School premises for two hour s on 2 nd and 4 th Satur d ay of every month.
(c). The petitioner will be entitled to visitation / m e e ti ng rights during the vacations.
(d). The period and timings of the visitation / m e e ti ng rights during the vacations will be fixed by the court before the commence m e n t of the vacations.
To come up for framing of issues on 03.1 2 . 2 0 1 0 .
(SANJAY SHARMA) JSCC cum ASCJ cum Guardia n Judge (West),Delhi 15.09.2 0 1 0 G.P. No. 45/ 0 9 Page 7 /6