Uttarakhand High Court
Smt. Archana vs Satyapal Singh on 12 December, 2019
Equivalent citations: AIRONLINE 2019 UTR 623
Author: Alok Singh
Bench: Alok Singh, Ravindra Maithani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal from Order (AO) No. 316 of 2018
Smt. Archana ............Appellant
Versus
Satyapal Singh .........Respondent
Mr. Deep Chandra Joshi, Advocate for the appellant.
Mr. Mahavir Singh Tyagi, Senior Advocate, assisted by Mr. Sunil Chandra and Mr.
Rajendra Tamta, Advocate for the respondent.
Hon'ble Alok Singh, J.
Hon'ble Ravindra Maithani, J.
Hon'ble Ravindra Maithani J. (Oral) This appeal under Section 19 of the Family Courts Act, 1984 has been preferred against the ex-parte judgment and order dated 05.05.2018, passed in Misc. Case No. 09 of 2016, Satyapal vs. Smt. Archana, by the Court of Family Judge, Camp Court, Laksar, District Haridwar ("the case").
2. By the impugned judgment and order, an application filed under Section 7 read with 10 of the Guardians and Wards Act, 1890 (for short, 'the Act') has been allowed and the respondent has been appointed guardian of the two minor children, namely, Kumari Vaishnavi and Master Anmol. It has further been directed that the appellant shall handover the custody of the children to the respondent within a month since then.
3. Learned counsel for the appellant would argue that in the case, the appellant could not appear to contest it out of fear of false implication by her in-laws. It is argued that soon after the death of her husband, she left her matrimonial house in the month of February, 2014 and joined her second husband. Both the children are studying in a good school. The appellant is capable of earning. She is a business woman, who runs the 2 business of water solution. She files income tax returns. It is argued that the appellant should be given opportunity to contest the case.
4. On the other hand, learned counsel for the respondent would argue that whatever arguments have been raised on behalf of the appellant are not pleaded anywhere. The arguments are dehors of any pleadings; the appellant willfully absented herself to participate in the case, she disappeared and on 17.02.2018, the court passed an order to proceed ex parte against her. Thereafter, the impugned order was passed on 05.05.2018. The appellant even did not choose to file an application for setting aside the ex parte judgment and order. It is argued that the appeal deserves to be dismissed.
5. The instant is not an adversial litigation in true sense. In fact, those who are, visible as parties in the case, are not directly or in fact, substantially, either winner of looser in this matter. This is a litigation for custody of children, who are minor. In the application, which was filed under Section 7 read with 10 of the Act, on 2nd July, 2016, the age of her daughter Km. Vashinavi was recorded as 10 years and the age of son Master Anmol is 7 years. Perusal of the ex parte judgment reveals that in fact, after service of notice upon the appellant she was represented and vakalatnama was filed on her behalf. The court, directed her to appear personally, but thereafter she disappeared.
6. The respondents and three more persons Mohan Singh, Jay Kumar and Ved Prakash filed affidavits in support of the application under Section 7 read with Section 10 of the Act and the case was decided ex parte.
7. In this matter, after the impugned judgment was passed, in the execution proceedings, the custody was obtained by the respondent. This fact was brought to the notice of the Court. This Court on 24.09.2019 required the respondent to produce both the children before the Court, and passed the following order:
3"This is an appeal against the order passed in Section 7 and 10 of the Guardians and Wards Act, 1890. By the impugned order, custody of the minor children was given to the respondent. Today, the appellant is before the Court and informs that after hearing of this matter on 02.09.2019, when the appeal was admitted, the respondent, forcefully with the assistance of police, took away the children from her custody. The children have to appear for their examination. They are being tortured by the respondent.
List this case on 26.09.2019. On that day the respondent as well as both the minor children shall remain present before the Court.
It shall be the duty of the respondent to produce the minor children before this Court.
List this case on 26.09.2019, just after fresh cases."
8. On the subsequent date, i.e. 26.09.2019, both the children appeared before the Court. The Court observed in the order as to what the children have stated. It is recorded as hereunder:
"As stated, the Court interacted with the children also, who are much articulate and clear in their mind. Both the children express their desire to stay with their mother. In fact, the elder daughter Vaishnavi would inform that when she was taken by the Police from the custody of her mother, on that day itself she was to appear in her examination in school at Delhi but she could not appear."
9. There are various provisions under various statutes which deals with the custody of the children. Section 7 of the Act empowers the Court to appoint a guardian of a minor. It reads as hereunder:
"7. Power of the Court to make order as to guardianship.--
(1) Where the Court is satisfied that is for the welfare of a minor that an order should be made--
(a) appointing a guardian of his person or property, or both, or
(b) declaring a person to be such a guardian, the Court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.
(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act"
(emphasis supplied) 4
10. A bare perusal of Section 7 reveals that the order may be passed by the Court once it is satisfied that it is for the welfare of a minor. The crux of the matter is "welfare of the minor".
11. In the case of Vikram Vir Vohra vs. Shalini Bhalla, (2010) 4 SCC 409, this aspect has been discussed. Although, the matter in the case was under Section 26 of the Hindu Marriage Act, 1955, but, in para 15, of this judgment, the Court categorically held that even though the principles have been laid down in proceedings under the Guardians and Wards Act, 1890, these principles are equally applicable in dealing with the custody of a child under Section 26 of the Hindu Marriage Act, 1955, since in both the situations two things are common; "the first, being orders relating to custody of a growing child and secondly, the paramount consideration of the welfare of the child. Such considerations are never static nor can be they squeezed in a straight jacket, therefore, each case has to be dealt with on the basis its peculiar facts."
12. In para 12 of the Vikram Vir Vohra (supra), Hon'ble Court further observed as hereunder:
"12. In a matter relating to the custody of a child, this Court must remember that it is dealing with a very sensitive issue in considering the nature of care and affection that a child requires in the growing stages of his or her life. That is why custody orders are always considered interlocutory orders and by the nature of such proceedings custody orders cannot be made rigid and final. They are capable of being altered and moulded keeping in mind the needs of the child."
13. In the case of Mamta alias Anju vs. Ashok Jagannath Bharuka, (2005) 12 Supreme Court Case 452, in a litigation between the parties, when an application for custody of child was moved, it was allowed and the Court laid down a few steps which must be followed before deciding such issue as to whether the custody should be given to father or mother or partially to one and partially to the other. It was held that in such matters 5 "the High Court must (a) take into account the wishes of the child concerned, and (b) assess the psychological impact, if any, on the change in custody after obtaining the opinion of a child psychiatrist or a child welfare worker. All this must be done in addition to ascertaining the comparative material welfare that the child/children may enjoy with either parent."
14. What is paramount consideration in this case is welfare of the children. Children are not so minor that they are not able to make their mind and speak before the court. Even if required in some cases court can take help of psychiatrist to ascertain the psychological impact, which might occur in case of change custody of children. Such exercise has not been undertaken by the learned court below while passing the impugned judgment, therefore, this Court is of the view that the impugned judgment and order deserves to be set aside and appeal allowed.
15. One of the normal consequences of this order would be that the learned court below would interact with the children and assess their welfare. This Court has not gone into causes of non appearance of the appellant in the case. Though it is argued that out of fear, the appellant could not continue to contest the case. Be that as it may, this Court is of the view that the appellant should also be permitted to place the material before the Court so that the court may reach at a conclusion with regard to the welfare of the children.
16. The impugned judgment and order is set aside. Both the parties shall participate in the proceedings and the case shall be decided, in accordance with law.
17. Both the parties shall remain personally present before the Court below on 21st January, 2020.
(Ravindra Maithani, J.) (Alok Singh, J.)
12.12.2019
Ujjwal/Kaushal