Delhi District Court
Mohd. Irshad (Maternal Grandfather) vs Mr. Nadeem (Father) on 4 March, 2013
IN THE COURT OF SH. REETESH SINGH
ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST)
KARKARDOOMA COURTS, DELHI
G No. 7/10
IN THE MATTER OF:-
1. Mohd. Irshad (Maternal Grandfather)
S/o Mohd. Tiwari
R/o House No. RZ-535/24,
Tuglakabad Extension
New Delhi - 11019
2. Smt. Anwari Begum (Maternal Grandmother)
W/o Mohd. Irshad
R/o House No. RZ-535/24,
Tuglakabad Extension,
New Delhi - 110019
.....Petitioners.
Versus
1. Mr. Nadeem (Father)
S/o Naimuddin
R/o Hounse No. B-242/5,
Kabir Nagar, Delhi
2. Naimuddin (Grandfather)
S/o Sh. Islamuddin
R/o House No. B-242/5
Kabir Nagar, Delhi
3. Smt. Jubuesha @ Shanno (Grandmother)
W/o Sh. Naimuddin
R/o House No. B-242/5,
Kabir Nagar, Delhi
.......Respondents
ORDER
04.03.2013
1. By this order I shall decide three applications under Section 12 of Guardian and Wards Act 1890 (hereinafter referred to as the said Act). The first application was filed on 18.08.2012 by the respondent no. 2 and 3, paternal grandparents of G No.7/10 1/18 the minor child praying for his interim custody. The second application dated 11.10.2012 was filed by the respondent no. 1, father of the minor child praying for an order for visitation rights. The third application dated 24.01.2013 was filed by the respondent no.1, father of the minor child praying for his interim custody. Arguments have been addressed by the Counsel for the parties on all the applications. I have perused the record.
2. The brief facts necessary for the disposal of these applications are as follows. The petitioners Mohd. Irshad and Anwari Begum are the maternal grandparents of minor child Master Rehan. Late Smt. Kanwar Khan, daughter of the petitioners was married to Nadeem, the respondent no. 1 as per Muslim rites and customs on 25.11.2007 at Delhi. Out of the wedlock the minor child Master Rehan was born on 24.11.2008. Case of the petitioners is that although they had spent beyond their means and gifted dowry articles to the respondent no. 1 at the time of marriage, the respondents were not happy with the same and tortured their daughter on this account. As per the petitioners, their daughter was thrown out from the matrimonial home by the respondents after being beaten up on 07.10.2008. The petitioners in the interest of the marriage of their daughter tried to convince her to cope with the situation and to make the marriage work. It is stated that thereafter on various occasions the petitioners tried to sort out the matter and paid Rs.3.5 lacs to the respondents to meet their demands. Despite their efforts, the behavior of the respondents did not improve.
3. It is alleged by the petitioners that on 21.01.2010, the respondent no. 1 killed Smt Kanwar Khan by throwing her from the fourth floor balcony of her matrimonial home. On the complaint of the petitioners, FIR No. 34/10 dated 22.01.2010 was registered in PS Jyoti Nagar, New Delhi under Sections 302/340B/498/34 IPC against the respondents.
4. This petition was filed on 26.02.2010 under Section 7 read with 25 of the said Act praying for an order to appoint them as the guardian of the minor child and to direct the respondent no. 1 to hand over his permanent custody. On the date of filing of this petition only Nadeem, father of the minor child had been arrayed as the respondent. It is stated in the petition that upon registration of the FIR Sh. Nadeem started absconding along with his family members. The respondent, Sh. Nadeem G No.7/10 2/18 and his family members filed several applications for bail before the Court of Sessions and the Hon'ble High Court which were rejected. It is stated that the minor child at the time of the death of Kanwar Khan was in the custody of the respondent who was absconding and the petitioners did not have any idea about his whereabouts. The petitioners made a complaint dated 27.01.2010 to the police officials but they were not able to trace the minor child. It is in these facts and circumstances that the present petition was filed.
5. As recorded above, on the date of filing of this petition only father of the minor child Sh Nadeem was impleaded as a respondent. Notice of this petition was issued by order dated 26.02.2010. While issuing notice, the Court also passed a direction to the SHO of PS Jyoti Nagar to recover the minor child Master Rehan and to produce him before the Court. On 12.03.2010, police officials, PS Jyoti Nagar appeared and filed status report to the effect that they could not trace the minor child. It was further stated in the report that the respondent, Sh. Nadeem, father of the minor child had been arrested and was in judicial custody. The respondent was produced by the police officials before the Court on 12.03.2010 from judicial custody. The Court put a question to the respondent regarding the whereabouts of the minor child, to which the respondent stated that he was not aware.
6. The matter was fixed for further proceedings on 03.07.2010. On 03.07.2010, one Sh. Moinuddin appeared before the Court and produced the minor child Master Rehan who was 1 ½ years old on that date. An application under Order 1 Rule 10 CPC was moved jointly by Sh. Sh. Moinuddin, S/o Islamuddin and his wife Smt. Fehmida, the paternal uncle and aunt of the minor child. In the application it was stated that the minor child was residing with them for the past 5 to 6 months and was well taken care of. Since the father and the paternal grandparents of the minor child were in judicial custody, the applicants prayed for their impleadment as respondent no. 2 and 3 in the petition. They also moved an application under Section 12 of the Act, praying that the interim custody of the minor child be kept with them till the disposal of the petition. The Ld. Predecessor of this Court keeping in view the circumstances that the mother of the minor child was no more and that his father and paternal grandparents were in judicial custody, handed over the custody of the minor child to the petitioners with the direction that the child would be G No.7/10 3/18 produced on the next date of hearing.
7. Subsequently, this Court by order dated 23.03.2011 allowed the application under Order 1 Rule 10 CPC and impleaded Sh. Moinuddin and Fehmida as respondent no. 2 and 3 in the petition in view of the fact that the father and the paternal grandparents of the minor child were in judicial custody. Thereafter the respondent no. 2 and 3 filed their replies to the petition and issues in this matter were framed on 22.02.2011. Matter was thereafter fixed for evidence of petitioners.
8. On 01.08.2012, an application under Order 1 Rule 10 CPC was moved by Sh. Naimuddin and Smt. Jubuesha, the paternal grandparents of the minor child praying that they be impleaded as respondent no. 4 and 5 in the petition. It was contended that they had been granted bail in June 2012 and being paternal grandparents of the child, they would be in a better position to look after his interest and welfare. On that date the counsel appearing for respondent prayed that Sh. Moinuddin and Fehmida, paternal uncle and aunt of the minor child may be deleted from array of parties and in their place the paternal grandparents be impleaded as respondent no. 2 and 3. With the consent of the counsel for petitioners, the prayer was allowed. The paternal uncle and aunt of the minor child were deleted from the memo of parties and were substituted by his paternal grandparents. On 01.08.2012, fresh vakalatnama was filed on behalf of respondent no. 1, Nadeem. All the respondents were granted time to file their written statements.
9. On 18.08.2012, the respondent no. 2 and 3 moved an application under Section 12 of the Act for interim custody. On 11.10.2012, the respondent no. 1 himself moved an application praying for meeting rights with his son, as he had been released on bail. Subsequently, by order dated 07.11.2012 the respondents i.e. father and paternal grandparents of the minor child were acquitted from all charges arising out of FIR No. 34/10 under Section 498A/302/304B/34 IPC by the Court of the Additional Sessions Judge, North-East District, KKD Courts, Delhi. Copy of the said order was placed on record. The respondent no. 1 then moved an application on 24.01.2013 praying for interim custody of his son.
10. The basic contention of the respondents is that the basis on which the petitioners prayed to this Court to be appointed as guardian of the minor child and sought for his permanent custody was the registration of FIR against them on the G No.7/10 4/18 complaint of the petitioners alleging murder of their daughter by the respondents. It was stated by the respondents that having been acquitted, they were absolved from all the charges leveled against them. They submitted that since the respondent no. 1 is the natural father of the minor child, he is his legal guardian and will be entitled to his custody. It was submitted that there is no disqualification operating against the respondents to have custody of the minor child.
11. Counsel for the petitioners on the other hand have submitted that against the acquittal, the petitioners have filed an appeal before the Hon'ble High Court of Delhi on 12.12.2012 which is likely to be listed for admission. It was submitted that till such time the appeal against the acquittal remains under consideration of the Hon'ble High Court, the custody of the minor child should not be shifted to the respondents. He submitted that in case the petitioners succeed before the Hon'ble High Court, the respondents would stand convicted and be committed to prison to carry out whatever sentence that would be awarded upon them by the Hon'ble High Court. In this situation if the custody of the minor child is handed over to the respondents at this stage, the child would be in a very invidious situation upon the respondents conviction by the High Court and thereafter the same situation would arise i.e. there would be nobody in the house of the respondent to take care of minor child. Ld. Counsel for the petitioners further argued that the respondent no. 1, Nadeem remained in the custody during the pendency of the trial for a considerable period of time and has no source of income and will not be able to look after his child. He submitted that the maternal grandparents of the minor child are aged 51 years and 49 years respectively. They were well to do persons and can very well look after the minor child. He submitted that the minor child as of today is aged 4 years and does not wish to go back to the custody of his father.
12. In rejoinder counsel for the respondents argued that these applications must be decided on the basis of facts obtaining today. They submitted that there is no certainty as to when the appeal of the petitioners against the acquittal of the respondents would arrive at any finality. They submitted that the appeal is yet to be listed before the Hon'ble High Court and if the appeal would be admitted it can take a very long time for the appeal to be decided in the routine course. Ld. Counsel for the respondents submitted that to his personal knowledge, the appeal if admitted G No.7/10 5/18 today would come up before the Hon'ble High Court for regular hearing after about 5 to 6 year from today. He submitted that the minor child was in the custody of the respondent no. 1 till he was about 1 ½ years old. As of today the minor child is aged 4 years. The respondent no. 1 has not been with his own son for almost two years now. If we await the outcome of the appeal before the Hon'ble High Court, the minor child would reach the age of about 10 years. By that time, the petitioners would have poisoned the mind of the minor child against his own father to such extent that even if the appeal before the Hon'ble High Court was dismissed, the father, the respondent no. 1 would have lost his child for all times to come.
13. Ld. Counsel for the respondent further argued that if the contentions of the petitioners regarding the pendency of the appeal before the Hon'ble High Court would be considered by this Court, then once the matter is decided by the Hon'ble High Court, either party would still approach the Hon'ble Supreme Court, given the nature of the dispute. The same contention would be made that point of time. He argued that by the time the FIR reaches finality before the Hon'ble Supreme Court, the minor child would have attained majority. Counsel for the respondents argued that since the only basis of which the respondent no. 1 may be denied custody of the minor child stands erased, the respondent no. 1 must be handed back the custody of the minor child.
14. After the arguments were addressed by the Counsel for the parties, this Court interacted with the minor child on 27.02.2013 in chamber in the presence of the petitioner no. 1 Mohd Irshad and respondent no. 1 Nadeem. The child appeared to be well taken care of. While in the Chamber he refused to look in the direction of his father. Upon being asked, he expressed his unwillingness to reside with the respondent no. 1 by nodding in the negative. However this Court did not find that the minor child was intelligent enough to form his own preference. He appeared to be traumatized, probably due to the atmosphere in which he is residing and the proceedings in this matter.
15. The undisputed facts of this case are summarized as under:-
(i) Smt Kanwar Khan, daughter of the petitioners was married to the respondent no. 1 as per Muslim rites and customs on 25.11.2007 and out of their wedlock Master Rehan was born on 24.11.2008;G No.7/10 6/18
(ii) On 21.11.2010, Smt. Kanwar Khan had died and on the allegations of the petitioners, FIR No. 34/10 dated 22.01.2010 was registered in PS Jyoti Nagar, New Delhi under Section 302/340B/498/34 IPC against the respondents. All the respondents i.e. father and paternal grandparents of the minor child were arrested and remained in the custody as undertrials;
(iii) The interim custody of the minor child Master Rehan was handed over to the petitioners by the Court by order dated 03.07.2010 when he was 1 ½ years old and since then he is residing with the petitioners;
(iv) By judgment dated 07.11.2012 all the respondents were acquitted of the charges arising out of the FIR No. 34/10 by the Court of ASJ, KKD Courts, Delhi; and
(v) As of today the minor child is aged 4 years and 3 months. The minor child has been living with the petitioners since 3.7.2010 i.e. for almost 2 years and 8 months.
16. What will be the effect of the acquittal of the respondents in relation to the charged leveled against them by the petitioners with respect to the custody of the minor child? Whether it is in the interest and welfare of the minor child to let him remain in the custody of the petitioners or to hand over his custody to his father?
17. The Ld. Counsel for petitioner had relied upon several case laws. I shall deal with them one by one:-
A. YOGESH KUMAR GUPTA VS M. K. AGARWAL AND ANR.
REPORTED IN AIR 2009 UTR 30 HON'BLE HIGH COURT OF
UTTRAKHAND AT NANITAL
In this case Sh M. K. Aggarwal got married to Nirja Aggarwal on 22.11.1991 and they had two children born on 05.09.1992 and 05.04.1995. On 23.08.1998 Smt Neerja Agarwal died and on the complaints of her parents FIR was registered under Section 498A/304B G No.7/10 7/18 IPC. Sh. M. K. Agarwal stood trial and was acquitted of all charges on 23.05.2001. In the interregnum, the minor child were residing with his maternal grand parents. Upon acquittal Sh. M. K. Agarwal filed a petition before the District Judge for a custody of his children. The maternal grand father also filed his own petitioner for similar relief. The Court of the District Judge granted a petition of M. K. Agarwal for custody of his minor children by order dated 16.09.2003 and dismissed the petition of the maternal grandfather. Against the said order appeal was filed by the maternal grandfather before the Hon'ble High court of Uttrakhand at Nanital. The said appeal was decided on 16.10.2008. During the pendency of the appeal, the Hon'ble High Court directed production of both the children. The children were produced in the year 2008 and they stated that they wised to reside with her maternal grand parents. The Hon'ble High Court relying on the judgment of the Hon'ble Supreme Court in the case of Nil Ratan Kundu Vs Abhijit Kundu reported in ARI 208 SCW 5769 held that in such cases where the father has stood trial to a case of dowry harassment, wishes of the minor children must be ascertained before decided as to whom their custody should be given. The Hon'ble High Court on the basis of wishes of minor children allowed the appeal and granted their custody to the maternal grandfather for custody of the minor children and rejected the prayer of the father.
It is to be noted that in this case minor children were born on 05.09.1992 and 05.04.1995. The death of their mother took place on 23.08.1998 when they were 6 and 3 years old respectively. These minor children were produced before the Hon'ble High Court in the year 2008. At that time they were aged 16 years and 13 years. They had lived with their maternal grandfather for a period of 10 years since the death of their mother. In the present matter the minor child aged 4 years is not able to form an intelligent preference.
B. PREM CHAND GOEL VS SANJAY DALMIA REPORTED IN (2002) 2 MLJ 399 HON'BLE HIGH COURT OF MADRAS G No.7/10 8/18 In this matter the petitioner before the Hon'ble High Court was the maternal grandfather and the respondent was the father of the minor child. Daughter of the petitioner was married to the respondent on 22.01.1999 and minor son Piyush was born to them on 22.02.2000. Smt. Archana had died on 30.01.2001. The respondent and his family members were arrested. They were released on bail on 25.07.2001. Thereafter a petition was filed before the Hon'ble High Court by the maternal grand father along with an application under Section 12 of the Act for interim custody of the minor child. Since the respondent was facing prosecution under Section 304B/498 A IPC on account of the unnatural death of the minor child, the High Court granted interim custody of the minor child to the maternal grandfather.
It is to be noted in this case the father of the minor child had been facing prosecution under Section 304 B/498A IPC and the trial was to begin. This judgment will not be applicable to the facts of the present case since the respondents stand acquitted after trial.
C. MAHENDRA MODI VS GOBARDHAN LAL REPORTED IN AIR 2006 JHAR 124, HON'BLE JHARKHAND HIGH COURT In this case the appellant before the High Court was the natural father of the minor child and the respondent his maternal grand father. The facts of this case are that the appellant got married to the daughter of the respondent on 07.02.1988. Minor child Master Vikram was born out of the wedlock on 01.08.1990. The mother of the minor child died on 04.02.1991 and a case under Section 498A/304B IPC was registered against the appellant. After the death of his mother, the minor child was being taken care of by his maternal grand father. The appellant was convicted under Section 4 of the Dowry Prohibition Act 1961 and sentenced imprisonment for six months along with fine. The appellant in the meanwhile had also remarried in June 1995. In these circumstances the respondent filed an application before the District Judge under Section 7 of the Act praying to be appointed as guardian of the minor G No.7/10 9/18 child. In the facts of that case the District Court allowed the petition by order dated 24.06.1996 in favour of the maternal grand father.
The facts of this judgment are not attracted to the present matter for the reason that the respondent herein have been acquitted. Further it is to be noted that the facts of this judgment reveal that the minor child was born on 01.08.1990 and the appeal was decided by the Hon'ble High Court on 19.05.2004 by which time the minor child had already resided for 13 years with his paternal grand father.
D. NIL RATAN KUNDU AND ANR VS ABHIJIT KUNDU REPORTED IN (2008) 9 SCC 413 OF THE HON'BLE SUPREME COURT In this case the appellants before the Supreme Court were the maternal grand parents of the minor child and the respondent was his father. The facts were that the respondent was married to the son of the appellants on 08.08.1995 and minor child Master Antariksh was born to the parties on 18.11.1999./ The mother of the minor child died on 09.04.2004 and FIR under Sections 498 A/304B IPC was registered against the respondents. On 31.05.2005 charge sheet was filed against the respondent for the said alleged offenses and trial was pending. In the meantime the minor child was residing with his maternal grand parents. The father of the minor child moved an application before the District Judge praying for handing over custody of his son to him. The said application was allowed on 15.07.2006 directing the maternal grand parents to hand over the custody of the minor child to the father. The appeal of the maternal grand parents was dismissed by the High Court on 07.12.2007 against which this appeal was filed before the Hon'ble Supreme Court. The Hon'ble Supreme Court in this matter was pleased to hold that in cases where the father of the minor child is facing allegations for offences punishable under Section 498A/304B IPC, it was obligatory on the Courts to consider the allegations before deciding matter of custody as the same were relevant to ascertain interest and welfare of a minor child. The Hon'ble Supreme Court negated the G No.7/10 10/18 contentions of the respondent father that in case he is ultimately convicted the maternal grand parents can move an application for custody of the minor child. The Hon'ble Supreme Court further observed that the minor child was aged 6 years and the District Court before directing handing over his custody ought to have ascertained his wishes as the same was mandatory under Section 17 (3) of the Act. The Hon'ble Supreme Court went on to interact with the minor child in chambers and found him to be intelligent. The minor child expressed his unwillingness to reside with his father. In these circumstances the Hon'ble Supreme Court set aside the order of the High Court and of the District Court.
The judgment of the Hon'ble Supreme Court is dated 08.08.2008. The minor child was already about 9 years old by then and the Hon'ble Supreme Court found the child to be intelligent and able to form a preference. The trial proceedings against his father were still pending. In the present matter the minor child is aged 4 years and could not form any preference. The respondents are acquitted of all allegations.
F. SHYAM SUNDER MISHRA VS JAGDISH PANDEY MISCELLANEOUS APPEAL NO. 4183/2007 DECIDED BY HON'BLE HIGH COURT OF MADHYA PRADESH AT JABALPUR ON 26.11.2012.
In this matter the appellant no. 1 before the High Court is the paternal grand father of the minor child Siddharth and the appellant no. 2 is his father. The minor child was residing with the respondent, his maternal grand father. The facts in this case were that Sunita, mother of the minor child had died on 26.01.2004 and a FIR was registered against the appellant no. 2 under Sections 304B/498A IPC. The appellant no. 2 was convicted and his appeal was pending before the High Court. In the interregnum, the custody of the minor child was taken over by the maternal grand father when he was aged 3 ½ years. The appellants moved an application before the District Court praying for custody of the minor child which was dismissed on 28.07.2001. Against the said order the paternal grand father and father of the minor child filed this appeal.
G No.7/10 11/18The appellant no. 2 had also remarried. The High Court observed that since the appellant no. 2 stood convicted and the minor child was residing with his maternal grand father since the year 2004, they were not inclined to interfere with the order of the District Court.
It may be noted that the judgment of the Hon'ble High Court was passed on 26.11.2012 against the order of the District Judge which was dated 28.07.2001 i.e. after 11 years. The minor child would be aged about 14 years on the date of the order of the Hon'ble High Court. Further the appellant no. 2 had been convicted whereas the respondents in the matter had been acquitted.
G. A. GOPALAN VS THATTOLI RAJAN REPORTED IN ILR 1995
(1) KERALA 214, KERALA HIGH COURT
In this matter the maternal grand father of two minor children then aged 5 years and 3 years was the appellant before the High Court and the respondent was their father. Facts of this case are that the mother of the minor children committed suicide on 10.12.1990. FIR under Section 304B IPC was registered against the father of the minor children in which proceedings were pending. After the death of their mother, the minor children were residing with the maternal grand father. Two years after the death of their mother, their father moved an application before the District Court praying for custody of the minor children. The said application was granted and the maternal grand father challenged the same in appeal. Both the children when produced before the High Court expressed their desire to reside with their maternal grand father. Keeping in view that the criminal prosecution of their father was still pending, and the desire expressed by the minor children, the High Court allowed the appeal and set aside the order of the District Court. In the present matter the respondents stand acquitted of all charges.
H MANGU RAM VS POORAN MAL REPORTED IN 1997 (3) WLC 597, HIGH COURT OF RAJASTHAN, JAIPUR BENCH G No.7/10 12/18 In this matter the maternal grand father of the minor child filed a revision petition before the High Court against the interim order dated 06.10.1993 of the District Judge by which direction was passed to hand over the custody of the minor child to the respondent, father. The facts of the case were that the daughter of the petitioner was married to the respondent on 08.06.1987 and female child Urmila was born to them in the year 1989. The mother of the minor child died under mysterious circumstances on 02.04.1993. FIR under Section 304B/498A IPC was registered against the father of the minor child. The maternal grand father filed an application before the District Court praying that he be appointed as the guardian of the minor child and to hand over the interim custody to him. The District Court by order dated 06.03.1993 directed that the custody of the minor child would remain with her father. Against the said order revision petition was filed before the High Court. During the pendency of the petition, the High Court by an interim order in 1993 itself directed that the custody of the minor child be handed over to the maternal grand father. The High Court thereafter found that the minor child progressed well in the custody of his maternal grand father during the pendency of the petition. The child was also produced before the Court in chambers and was found to be intelligent and expressed her desire in 1996 to remain in the custody of her maternal grand father. The High Court held that in cases where the father of the minor child is facing such charges, the Courts dealing with such matters should keep in consideration such charges before decide on custody. The Court therefore set aside the order of the District Court and directed that the minor child who was aged 7 years would remain in the custody of the maternal grand father.
Again in the present case the respondents are acquitted of all charges.
18. I have gone through all the case laws on which reliance has been placed by the petitioner. Except for the case of Yogesh Kumar Gupta vs M.K. Agarwal and G No.7/10 13/18 Anr. (supra), none of the cases deal with a fact situation which exists in the present matter i.e. where the respondents have been acquitted of charges under Section 498A/304B IPC. In the case of Yogesh Kumar Gupta vs M.K. Agarwal and Anr. (supra), the minor children when produced before the Hon'ble High Court in the year 2008 were aged 16 years and 13 years and had lived with their maternal grandfather for a period of 10 years since the death of their mother.
19. In most of the cases cited by the petitioners, the matters had reached finality at a stage where the minor children had become old enough to form an intelligent preference. In the present matter the minor child was aged about 1 ½ years when his custody was handed over to the petitioners by an interim order of this Court. As on date the minor child is 4 years old. He has been residing with his maternal grandparents for about 2 ½ years. The minor child did not appear to be able to form an intelligent preference to this Court.
20. What then should be the approach of this Court while arriving at a prima- facie conclusion regarding his interest and welfare which is of paramount consideration in these matters? In all the judgments cited by the counsel for the petitioner, the Courts have consistently held that pendency of criminal prosecution against the father of the minor child of charges under Section 498A/304B IPC is a relevant consideration. If the pendency of such charges is a relevant consideration, then the acquittal of the father and paternal grandparents of such charges after a fair trial would also be relevant consideration. The respondents will therefore be entitled to claim the benefit of their acquittal of these charges when it comes to deciding interim custody of the minor child.
21. The respondent no. 1 is admittedly the biological father of the minor child. Section 19 (b) of the Guardians and Wards Act lays down that the Court will not be authorized to appoint a person as a guardian "of a minor whose father is living and is not in the opinion of the Court, unfit to be guardian of the person of the minor;". Hence similar consideration would also arise while handing over the custody of the minor child to some person other than the father of the minor. Whether there is any material on the record of this Court to hold, prima-facie, that the respondent no. 1 is "unfit" to have the custody of his own child. The basis of the present petition was G No.7/10 14/18 the pendency of the criminal prosecution of the respondents under Section 498A/304B IPC. The said prosecution has ended in their acquittal. Thus the basis of the petition stands erased as on date.
22. The counsel for the petitioners had submitted that the petitioners had filed an appeal before the Hon'ble High Court against the acquittal. Admittedly appeal of the petitioners before the Hon'ble High Court has not yet been admitted. Is it reasonable and in the interest and welfare of the minor child to await the outcome of the appeal before handing him over the custody of his father. In the case of Ruchi Majoo v. Sanjeev Majoo, reported in (2011) 6 SCC 479, the Hon'ble Supreme Court was considering, among others whether the order granting interim custody of the minor child to the mother required any modification in terms of the grant of visitation rights to the father pending disposal of the case. In that matter, the mother of the minor child among others had instituted an FIR under Section 498A/406 IPC against the father. The said FIR had been quashed by the Hon'ble High Court on an application of the father on the ground that the allegations made in the complaint did not consider offences under Sections 498A/406 of the IPC. A criminal appeal was filed before the Hon'ble Supreme Court by the mother. Further in proceedings under the Guardians and Wards Act 1890, the District Court had granted interim custody of the minor child to the mother. The said order was challenged by the father before the Hon'ble High Court which upheld the order. Against the order of High Court the father had filed a civil appeal before the Hon'ble Supreme Court. It is this background that the Hon'ble Supreme Court was considering the question regarding modification of the order of District Court in which visitation rights to the father had been denied.
23. The Hon'ble Supreme Court in the case of Ruchi Majoo v. Sanjeev Majoo (supra) was pleased to hold that the minor child should not be insulated from the parental touch and influence of the other parent which is very important for the healthy growth of the minor and the development of his personality. It was held by the Hon'ble Supreme Court that the father's care and guidance, at this formative and impressionable stage of his life and the role of the father for upbringing and grooming of the minor child to face the realities of life could not be undermined. The Hon'ble Supreme Court also observed that they had interacted with the minor G No.7/10 15/18 child who appeared to be very antagonized against his father. The Hon'ble Supreme Court was pleased to observe that such deep-rooted dislike for the father by a minor of such a tender age could arise only because of a constant hammering of negative feeling in him against his father. The Hon'ble Supreme Court deprecated the approach and attitude of the mother in this regard. The Hon'ble Supreme Court observed that such dislike towards the father could not be serve the interest of the minor child.
24. It is therefore clear that the role of a father is very important for the upbringing of a minor child. The Hon'ble Supreme Court has also observed that the hatred of a child towards a parent can be caused by constant poisoning of his mind by the other parent. In the present case the minor child has lost his mother. Allegations of his maternal grandparents that his mother was killed by his father have not been believed by the Trial Court. During chamber interaction, the minor child was not looking in the direction of his father. The reason for such behavior of a child of such a tender age is not far to be found. He must be under the influence of his maternal grandparents of to try and convince this Court that he does not wish to reside with his father.
25. The minor child has suffered tremendous amount of trauma at a very young age. He has lost his mother. In normal circumstances, the minor child would be left with one parent. The facts of the present case reveal that minor child is in danger of losing his father as well. It has been put to the minor child that his mother has been killed by his father.
26. Whether this Court should await the outcome of the appeal before the Hon'ble High Court before granting his custody to his father? This Court does appreciate the contention of the counsel for the respondents, and not controverted by the counsel for petitioners, that it could not be said with any certainty as to when the appeal of the petitioners before the Hon'ble High Court against the acquittal of the respondents would attain finality. Even if the appeal is decided, one of the unsuccessful parties would most certainly move to the Hon'ble Supreme Court. Thus even if the matter is decided by the Hon'ble High Court, matters would not rest at that stage and will arrive at some sort of finality only before the Hon'ble Supreme Court. It is very much probable that by that time the minor child will grow G No.7/10 16/18 up and reach such an age that his wishes will have precedence over any other consideration. In case the minor child is left in the custody of the petitioners, there is very high probability that he will be influenced to such an extent that he will never want to return to his father even if the acquittal of his father is upheld till the Hon'ble Supreme Court. In this situation he will most certainly lose his surviving parent i.e. his father. This is not in his interest and welfare.
27. This Court is inclined to consider the submissions of the respondents that their applications be decided on the basis of the fact situation existing as of date and not on the basis of imponderables of the fate of the appeal of the petitioners. It is however apparent that the minor child has remained in the custody of the maternal grandparents for a considerable amount of time and did not appear to be comfortable in the custody of his father. If this Court passes an order of immediate handing over of his custody, the child will suffer more trauma. In the opinion of this Court, the child should be gradually reintroduced with his father.
28. Counsel for the petitioners had also argued that the respondent no. 1 is not employed and therefore does not have the means to support his child. During the course of the arguments, the counsel for the respondents on the instructions of the respondent no. 2 and 3 and the brother of respondent no. 1 had stated that they were residing as a joint family and would provide all necessities of life to the minor child. Hence this Court does not deem it proper to deny custody of the minor child to the respondent no. 1 on this ground.
29. During the course of arguments this Court had called upon the Counsel for the parties to state as to whether their clients they would be comfortable in carrying out an order of visitation of either party at the Family Courts in Saket District Court Complex (since the same is close to the residence of the petitioners) and at the Karkardooma Courts Complex (since the same is close to the residence of the respondents). They had agreed with the same.
30. Hence for the reasons recorded above these applications are allowed in the following manner:
a) The petitioners shall produce the minor child for visitation of the respondent no. 1 at the Family Courts at Saket District Court Complex, three days in a week i.e. Monday, Wednesday and Saturday (except second Saturday) at G No.7/10 17/18 2.30 PM for a period of two hours to enable the respondent no. 1 to interact with his minor child;
b) This arrangement shall continue for a period of three months from today i.e. w.e.f. 11.03.2013 to 11.06.2013;
c) The petitioners during the course of visitation shall try and impress upon the minor child that he will have to reside with his father in some time. The respondent no. 1 who shall be entitled to bring gifts and eatables for the minor child during the course of visitation and near relatives of the respondent no.1 will be permitted to meet the minor child;
d) On 11.06.2013, the petitioners shall hand over the custody of the minor child to the respondent no. 1 and the Respondent no. 1 shall thereafter retain the custody of the minor child till the pendency of this petition;
e) Once the custody of the minor child has been handed over to the respondent no.1, the petitioners shall be entitled to visitation with the minor child for three days in a week i.e. Monday, Wednesday and Saturday (except second Saturday) at 2.30 PM during the pendency of the petition. This visitation shall take place at the Karkardooma Courts Complex, New Delhi and shall commence immediately upon handing over of custody of the minor child.
List the matter on 10.04.2013.
Announced and Dictated to the Steno in Open Court today i.e.04.03.2013 (REETESH SINGH) Addl. Distt. Judge-01 (NE) Karkardooma Courts, Delhi G No.7/10 18/18