Delhi District Court
Smt. Babita vs Sh. Parvesh Rohtagi on 24 September, 2010
IN THE COURT OF SH. SANJAY SHARMA, JSCCCUMASCJCUM
GUARDIAN JUDGE (WEST): DELHI
G.P. No. 26/10
Unique Case I.D. No. 02401C0224782010
Smt. Babita
W/o Sh. Parvesh Rohtagi
D/o Shri Suraj Parkash
R/o 36, Bhaira Enclave,
Paschim Vihar, New Delhi .............Petitioner
Versus
Sh. Parvesh Rohtagi
S/o Sh. Niranjan Lal Rohtagi
R/o B.M.43, East Shalimar Bagh,
New Delhi ..........Respondent
Date of filing of the application : 25.05.2010
Date of reserving order : 13.09.2010
Date of pronouncement : 24.09.2010
O R D E R
1. In the petition under Section 25 of the Guardians and Wards Act, 1890 (Hereinafter referred 'the Act'), the petitioner filed an application for interim custody of Master Rakshit.
2. Brief facts relevant for adjudication of the said application are that the petitioner was married to the respondent on 17.02.2006. They were blessed with a male child Master Rakshit on 14.01.2007. G.P. No. 26/10 Page 1/8 According to the petitioner, she was subjected to physical and mental cruelty for bringing insufficient dowry since the beginning of marriage. There are allegations and counter allegations with which we are not presently concerned.
3. The case of the petitioner is that she was driven out from his matrimonial home by the respondent and his family members. It is stated that the respondent has not allowed the petitioner and her parents to meet the minor child. It is stated that the behaviour of the respondent and his family members towards the petitioner and his child was not good. The child is not safe in the custody of the respondent as atmosphere in the respondent's house is not conducive to the mental and physical development of the minor child. The respondent's parents are aged and unable to lookafter the minor child. The petitioner is mother of the minor child. The petitioner is natural guardian of the child and legally entitled to his custody. The respondent cannot provide proper care and attention to the child. The minor child need care and attention of the petitioner. The petitioner is best suited to lookafter the interest and welfare of the minor child. It is stated that interim custody of the minor child should be given to the petitioner.
4. In the reply, the respondent stated that the petitioner had abandoned the respondent and the minor child and started staying with her parents. It is stated that the petitioner pressurized the respondent to seek share in the property. It is stated that the petitioner had finally left the respondent and the minor child on G.P. No. 26/10 Page 2/8 04.03.2007 and refused to return despite various efforts made by him. The petitioner had called the respondent on 31.05.2007 at her parents residence where the respondent was implicated in a case U/S 107/151 Cr.P.C. The petitioner stayed with the respondent since January, 2008 to September, 2009. It is stated that the petitioner deserted the respondent and minor child in October, 2009. The respondent is highly educated having graduated from Delhi University and later completed PGDAMMM from National Institute of Fashion Technology.
5. The case of the respondent is that he is earning Rs.10,000/ per month from his business of fabrication and designing, his elder brother of the respondent is a copilot with Air India and his younger brother is a doctor. The respondent's father is doing business of car accessories. It is stated that the petitioner has not completed graduation and atmosphere in the petitioner's house is not conducive for the welfare of the child. Master Rakshit is studying in Kulachi Hans Raj School, Ashok Vihar. The respondent and his parents are taking proper care of the minor child and giving love and affection to him. It is stated that the respondent has provided good environment to the child. The respondent has prayed for dismissal of the application for interim custody.
6. I have heard arguments of Sh. Anil Kumar Chaudhary, Adv. for the petitioner and Sh. Vikas Rohtagi, Adv. for the respondent and considered the relevant statutory provisions governing the issue. G.P. No. 26/10 Page 3/8
7. Ld. Counsel for the petitioner argued that Master Rakshit is 3½ years old and requires care and attention of the petitioner. He argued that the petitioner was driven out from her matrimonial home in October, 2009 and deprived from the custody of her child. He argued that the petitioner is the only person who can provide proper care and protection to the infant. He argued that the respondent is a drunkard and irresponsible person. He argued that the respondent has been disinherited by his parents and has no source of income and place of residence in Delhi. He argued that there is no male and female member in the respondent's family to lookafter the child. He argued that the minor child is not receiving proper care and attention. He argued that the petitioner is the mother of the child and therefore, she is entitled to interim custody of Master Rakshit.
8. Ld. Counsel for the respondent argued that the respondent is living with his parents in a joint family. He argued that the respondent is a natural guardian of the child. He argued that the respondent and his parents are taking care of the child. He argued that the petitioner has abandoned the minor child in October, 2009 and filed the present petition after 8 months. He argued that the petitioner has never shown any interest in the child. He argued that the petitioner is educated having graduated from Delhi University and holding Diploma from National Institute of Fashion and Technology. He argued that the petitioner has filed several cases against the respondent without any reason. He argued that the respondent was disinherited by his parents as he had asked for his G.P. No. 26/10 Page 4/8 share in the property at the instance of the petitioner. He argued that the respondent has provided positive and congenial atmosphere to the minor child. He argued that Master Rakshit is studying in Kulachi Hans Raj School. He argued that the atmosphere in the respondent's house is academic and education oriented whereas the respondent and his family members are neither educated nor qualified to provide enabling environment to the child. He argued that the child is attached with the respondent and his family members and transfer of custody of the child would have adverse impact on the growing mind of the child.
9. It is admitted fact that Master Rakshit was born on 14.01.2007. He is presently 3 ½ years old. The petitioner is mother of the minor child. Law ordains that a child below 5 years of age should ordinarily be in the custody of his mother. The respondent has not stated any compelling reason to deny interim custody of the minor child to the petitioner. Section 17 of the Guardians and Wards Act enumerates the factors to be taken into consideration for deciding custody of the child. Age of the child is a relevant consideration for arriving at a just decision with regard to the custody of the child. An infant child needs care and attention of his mother.
10.Custody jurisprudence is animated with the vision of welfare of the child. Golden fabric which runs through the custody jurisprudence is the welfare of the child. The concept of welfare of the child applies to interim stage with full vigour. The Court while deciding a custody matter performs solemn and sacred function. The Court must ensure that the child must be afforded every opportunity to G.P. No. 26/10 Page 5/8 realize his potential.
11.The case of the respondent is that the petitioner had abandoned the minor child on 16.10.2009. The case of the petitioner is that she was driven out of her matrimonial home by the respondent. There are words against words. The court at this stage cannot delve into factual controversy. At this stage, the court takes prima facie view of the matter.
12.In identical situation in Surabhai Ravikumar Minawala Vs. State of Gujarat & Ors. AIR 2005 Gujarat 149, Hon'ble High Court of Gujarat while giving custody of infant to the mother held that:
"7. Having given our careful consideration to this delicate issue and having fully considered the submissions made by the learned Advocates, it is clear that the petitioner is not living with respondent No. 2 and his family. According to her, she has been driven out. As against that, respondent No. 2's say is that she has voluntarily left his family. She has left the matrimonial home with her father and brother with the intention of not returning to it. Though there is word against word and these are not the appropriate proceedings in which this issue can be decided as necessary evidence will have to be led by the parties to establish their respective averments, it is very unnatural and difficult to swallow the say of respondent No. 2 that the petitioner had gone away leaving the child of 45 days with respondent No. 2. No mother would take such a step more particularly when the mother G.P. No. 26/10 Page 6/8 like the petitioner has ultimately approached this Court by way of this petition to take the custody of the child. Her say that efforts were made to negotiate also appears to be true, because as stated above, she had shown all the willingness to accede to the suggestions that had fallen from the Court and to abide by the arrangement that has been referred to above. It is, therefore, difficult for us to accept the story of respondent No. 2. 7.2. Thus, the legislature in its wisdom has thought it fit the mother to ordinarily have custody of the child if it is below the age of five years. There is nothing extraordinary in this case which may prompt us to deviate from the above statutory provision. Merely because father of the child i.e. respondent No. 2 is in better financial position than the mother, it does not mean that the child's interest will best be served if it remained with father and his family. No amount of wealth and 'motherlike love' can take the place of mother's care and love for the child. When she is in a position to provide basic necessities and amenities to the child for its comfort and good upbringing, luxuries spoken of in the affidavit of respondent No. 2 cannot persuade us to deprive the mother of her child and allow the custody of the child to remain with him. In our opinion, she will be in a better position to discharge parental obligation."
13.In Eugenia Archetti Abdullah Vs. State of Kerala, 2005 (1) HLR 34, Hon'ble High Court of Kerala handed over the custody of the children aged less then 3 years to the mother and observed as under:
G.P. No. 26/10 Page 7/8
"19. The lap of the mother is the natural cradle where the safety and welfare of the these twins under the age of three years can be assured and there is no substitute for the same. Mother's protection for such children is indispensable. As held by the Full Bench:
"We cannot think of any other protection which will be equal in measure and substance to that of the mother."
14.In Kiran Rani Vs. Krishan Kumar, 1995 (1) RCR (Crl.) 430, the husband had taken away infant child of one year from his wife. The child was of very tender age and on breast feeding, Hon'ble Punjab & Haryana High Court handed over the custody of the child to the mother:
"8. ___ [Inasmuch as the child is of very tender age and at present it is necessary for him to stay with his mother, it is ordered that he be immediately handed over to petitionermother.]"
15.In Manju Tiwari Vs. Rajendra Tiwari, AIR 1990 SC 1156, Hon'ble Supreme Court handed over the custody to the petitioner mother as the child was less than 5 years of age.
16.In Deepak Agnihotri Vs. The Commissioner of Police, 2008 (2) JCC 1053 (DB), Hon'ble Delhi High Court observed that the infant child 1½ years of age primafacie, should be in the custody of her mother.
G.P. No. 26/10 Page 8/8
17.Though the aforenoted decisions were rendered in writ of Habeas Corpus but this court has kept in view the concern felt and expressed by courts with regard to child's interest and welfare.
18.Contention that respondent has sufficient income and resources to maintain the child would not advance the case of the respondent. Welfare of the child cannot be measured in terms of the wealth. There can be no substitute to the love and affection of the mother.
19.Contention that the child is studying in school and his study would be adversely affected can be very well taken care of by the petitioner by getting the child admitted to a good school.
20.Contention that the petitioner is not highly educated whereas the respondent has completed his graduation and did his Diploma from National Institute of Fashion Technology cannot further the case of the respondent. It is the admitted case of the respondent that the petitioner is educated though she has not completed his graduation. The petitioner is capable of taking care of education and welfare of the child.
21.Contention that there is no one in the family of the petitioner to take care of the child cannot be accepted. It is the specific case of the parties that the petitioner is staying with her parents.
22.Accordingly, the application of the petitioner for interim custody is allowed and interim custody of Master Rakshit is given to the petitioner.
23.The respondent will be entitled to meeting/ visitation rights. The respondent is granted visitation rights on 2nd and 4th weekend of G.P. No. 26/10 Page 9/8 every month from 10 AM of the Saturday to 8 PM of the following Sunday.
24.The petitioner or her authorized representative shall handover interim custody of Master Rakshit to the petitioner or his family members at his residence at 10 AM on 2nd and 4th Sunday and the petitioner shall restore the custody of the child to the respondent or her authorized representative at 8 PM of the following Sunday at his residence.
25.The respondent will also be entitled to interim custody of the child on major festivals i.e. Chhoti Diwali, Chhoti Holi, Raksha Bandhan, Janmasthmi etc. from 10 AM to 6 PM.
Announced in the open court today the 24th September, 2010.
(SANJAY SHARMA) JSCCcumASCJcum Guardian Judge (West),Delhi G.P. No. 26/10 Page 10/8