Himachal Pradesh High Court
Smt. Nirmala Devi vs Sh. Uma Dutt on 19 April, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 330 of 2017 Reserved on: 16.04.2018 Decided on: 19.04.2018 Smt. Nirmala Devi ...Petitioner/Appellant .
Versus
Sh. Uma Dutt ...Respondent
Coram
The Hon'ble Mr.Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting? No. For the Appellant: Mr. J.L. Bhardwaj, Advocate.
For the respondent: Mr. B.C. Verma, Advocate.
Justice Tarlok Singh Chauhan, Judge The appellant who has been denied the custody of children born to her from the loins of the respondent has filed this appeal under Section 47 of the Guardians and Wards Act, 1890 (for short the 'Act').
2. The brief facts of the case are that the appellant filed a petition under Section 25 of the Act for the custody of twins master Bhupesh Kumar and master Bhuwnesh Kumar from the respondent, alleging therein that marriage of the parties had been solemnised on 31.07.2005. She has given birth to the aforesaid above-named twins on 24.06.2006, however, due to maltreatment given by respondent, she left his company and thereafter obtained mutual divorce on 17.02.2012. The respondent after the divorce did not allow the ::: Downloaded on - 19/04/2018 23:24:21 :::HCHP 2 appellant to meet the children despite having committed and consented at the time of entering into mutual divorce.
3. It was further alleged that the appellant after obtaining .
divorce had got married to one Yadav Chand. Since, the appellant after giving birth to the above-named twins, underwent operation of family planning on the request of the respondent, she now cannot conceive and give birth to another child, which according to her would affect her marital life. It was also contended that the appellant on the basis of the mutual divorce and understanding arrived at that time was always under impression that she had equal right upon her children but the respondent did not permit her to meet children much less take their custody.
4. The appellant after coming to know that respondent was maltreating the children and was not taking appropriate steps for day-to-day expenses, necessities, clothing, education etc., filed petition seeking direction to the respondent to handover the custody of the said children with further direction that during the pendency of this petition, the appellant be permitted to meet the minor twins.
5. The respondent filed reply to the petition and took various preliminary objections regarding maintainability, locus standi, estoppel etc. On merits, it was submitted that the appellant was not residing at village Hiranali but was residing at village Palog where the respondent is also residing. It was submitted that twins were being looked after by the respondent, his parents and brother and are ::: Downloaded on - 19/04/2018 23:24:21 :::HCHP 3 being provided the best facilities. It was further submitted that even during the period when appellant had been residing with the respondent she was having extra marital relationship with Yadav .
Chand, as a result of which, she refused to live in the company of the respondent. She refused to discharge the matrimonial obligation and ultimately relationship of husband and wife between the parties came to an end.
6. Therefore, in such circumstances, when Yadav Chand who was instrumental for the break-down of the relationship between the husband and wife, it would not be in the interest and welfare of the minor children to put them in the care and custody of the appellant, who otherwise does not even have the requisite financial resources to bring up these children as she was barely earning only Rs.6000/- per month, whereas the respondent is in a better financial position to bring up, maintain and educate the minor children. It was further averred that the appellant is not interested in the welfare of the minor children as she has little love and affection for them, as is evident from the fact that at the time of effecting mutual divorce she had given in writing that she would have no association with the children.
7. The appellant did not choose to file any rejoinder to the reply filed by the respondent and out of the pleadings of the parties, the learned trial Court on 18.12.2014, framed the following issues:-
::: Downloaded on - 19/04/2018 23:24:21 :::HCHP 41. Whether the petitioner is entitled for the custody of master Bhupesh Kumar and master Bhuvnesh Kumar?..OPP
2. Whether the petition is not maintainable?..OPR .
3. Whether the petitioner has no locus standi to file the present petition?..OPP
4. Whether the petitioner is estopped to file the present petition on account of her own acts and conduct?..OPR
5. Relief.
8. The learned Court below after recording the evidence and evaluating the same dismissed the petition, constraining the appellant to file the instant appeal.
9. It is vehemently argued by Shri J.L. Bhardwaj, learned Advocate, that the findings recorded by learned Court below are absolutely perverse as these are contrary to the pleadings as also to the evidence both oral and documentary available on record, therefore, deserve to be set aside.
10. On the other hand, Shri G.D. Verma, learned Sr. Counsel, duly assisted by Shri Romesh Verma, learned Advocate, would contend that the judgment passed by the learned Court below is based on correct appreciation of the pleadings and the evidence, thus, cannot be termed to be perverse and therefore, to be affirmed.
I have heard learned counsel for the parties and have gone through the records of the case.
11. Adverting to the pleadings of the parties, it would be noticed that the specific case set-up by the appellant in petition ::: Downloaded on - 19/04/2018 23:24:21 :::HCHP 5 under Section 25 of the Act is that the minor twins were not being properly brought up and rather being maltreated by the respondent as he was not providing day-to-day expenses, clothing and .
education to the minors.
12. However, as rightly noticed by the learned Court below, the appellant has not been able to lead any cogent and convincing evidence to this effect.
13. The appellant appeared as PW1 and stated that it was on account of unethical, quarrelsome and erratic behaviour of the respondent, she has compelled to leave her matrimonial home and, therefore, obtained mutual divorce on 17.02.2012 by executing affidavit before Executive Magistrate, Sunni. After divorce, the respondent did not allow her to meet the children despite the commitment and consent as given by the respondent at the time of effecting divorce. She further stated that she after getting divorce from the respondent, married to one Yadav Chand but could not conceive as she had undergone the family planning operation.
14. Lastly, she stated that respondent had no means and willing to bring up the minor children and in case the custody of the children kept with the respondent the future of the minor children would be totally ruined and since the respondent was not providing day-to-day expenses, clothing and education etc. to the children, therefore, the custody be handed over to her.
::: Downloaded on - 19/04/2018 23:24:21 :::HCHP 615. In cross-examination, the appellant stated that Yadav Chand was known to her for the last 7-8 years and admitted that she has not obtained decree of divorce from a competent Court and .
voluntarily stated that she had taken the divorce at Tehsil. She has also admitted that she was living with Yadav Chand without getting decree of divorce. She further stated that she solemnised marriage with Yadav Chand in the year, 2012. She lastly admitted that respondent was earning well and he was also having landed property, whereas she was earning only Rs.6000/- per month.
16. On the other hand, respondent appeared as RW-5 and tendered in evidence his affidavit Ex.RW5/A, wherein he stated that the allegations levelled by the appellant against him were totally false and even during the subsistence of marriage, the appellant was having affair with Yadav Chand and due to this reason she left his company and the company of the minor children and even after repeated request, the appellant did not join the company or take care of the minor children, rather solemnised marriage with Yadav Chand. He further stated that the appellant had sworn an affidavit before the executive magistrate, Sunni, wherein she specifically stated that both the children would remain with the respondent. He further stated that the appellant had no love and affection and respect for the children because after solemnising marriage with Yadav Chand she did not even tried to meet the minor children and take care of them. He further stated that the appellant had no ::: Downloaded on - 19/04/2018 23:24:21 :::HCHP 7 source of income and had falsely deposed that she was earning by doing job in the shop whereas the respondent was a carpenter and earning Rs.25,000/- per month and was thus in a better position to .
provide education and take care of other things of the children. He also tendered in evidence compromise Ex. RW5/B and Ext. DA. Even though this witness was cross-examined but there is hardly anything to impeach or discredit his testimony as he has specifically and categorically denied that after divorce, the appellant had been visiting the children to meet them. He further denied that in connection with his job, he was required to visit different places and was not able to take care of the children. He further denied that the signature of the appellant in Ext. RW5/B were forcibly obtained and further denied that he had not permitted the appellant to meet her children.
17. At this stage, it would be relevant to advert to the testimony of the other witnesses examined by the respondent.
18. Shri Bhup Ram appeared as RW4 and testified that he was resident of the Panchayat of the parties to the petition and remained its Pradhan from the year 2011 to 2015. He further stated that respondent has filed an application before the Panchayat alleging therein that his wife had illicit relation with Yadav Chand and due to this their relationship had been strained. Thereafter, both the parties were called and appellant had told that she was having mobile phone of Yadav Chand and had been talking to him but ::: Downloaded on - 19/04/2018 23:24:21 :::HCHP 8 undertook that she would return the mobile phone to Yadav Chand and would not keep and maintain any relation with him. The application has been produced on record as Ext. DB which contains .
the signature of the appellant encircled 'B'. He further stated that Nirmala Devi had soleminised second marriage with Yadav Chand and was residing with him, whereas the children were being looked after by the respondent and other family members. This witness was subjected to cross-examination but nothing contrary could be elicited therefrom, because this witness categorically denied that letter Ext. DB was forcibly taken from the appellant.
19. RW3 Sandhya Devi stated that she recognised both the parties to the petition. She earlier was B.D.C. member at Bahal Panchayat. She further stated that appellant having an affair with Yadav Chand on account of which there was discord between the parties. She further deposed that it was in her presence that the appellant stated that she wanted to reside with Yadav Chand and she would not keep her children and it would be the responsibility of the respondent to maintain them. She further stated that appellant had no love and affection for her children because had she been any love and affection for children she would not have left her children and then proceeded to solemnise marriage with Yadav Chand.
20. Hira Lal appeared as RW1 and stated that he recognised both the parties to the petition. He further deposed that appellant did ::: Downloaded on - 19/04/2018 23:24:21 :::HCHP 9 not want to reside with the respondent because she was already in relationship with the Yadav Chand and parties had effected compromise by executing affidavit Ext. RW1/A before the Tehsildar .
which contained his signature and thereafter divorce deed was executed on 17.02.2012 and at that time the appellant had accepted that her children would reside with respondent because she could not maintain them. She did not maintain any relationship with the children as she had soleminised second marriage with Yadav Chand. Even this witness was again subjected to cross-examination but nothing contrary could be elicited therefrom.
21. Thus, on perusal of the statements as referred to above, it becomes apparent that appellant had solemnised marriage with Yadav Chand and was residing with him.
22. At this stage, certain documents as have been duly exhibited and proved on record need to be noticed.
23. Ext. DA is the written document executed on 12.02.2012 whereby the appellant has categorically stated that she was handing over the custody of the children to the respondent and she has no relationship henceforth with them. It is apt to reproduce the entire contents of Ext.DA, which reads thus:-
"आज दनाक 12.2.2012 को मै िनमला दे वी प ी उमा
द गाँव पनोहल अपनी पूर होशो हवास से अपने दो बच
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10
को अपने पित के पास स हाल रह हूँ मेरा इनसे तलाक
के प ात कोई समब नह ं रहे गा !
िनमला दे वी गवाह
.
Sd/- 12.2.2012
1. Sd/-
2. Sd/-
3. Sd/- "
24. Ext. DB is a letter written by the appellant to the Pradhan undertaking therein that she would not unnecessarily quarrel with the respondent and would not keep any relation with Yadav Chand. Ext.
DB which reads thus:-
"सेवा म, ीमान धान, ाम पंचायत, नीन ! वषय:- आज के बाद पछली कये गये हरकत के समबद आज दनाक 11.10.2011 मै िनमला दे वी प ी उमा द गाँव, प हे ल िन. िल. गवाह के सामने यहाँ तहर र हूँ क मै आज के बाद अपने प रवार के साथ कसी कार का लड़ाई झगडा नह ं क ँ गी और न ह मै यादव पु द प राम गाँव पालोग जसका मोबाइल मेरे पित ने मेरे से बरामद कया है के साथ कसी कार का समब ध नह ं रखुगी और न ह उसके साथ कसी कार क बातचीत क ँ गी ! मै अपने घर मे आगे ::: Downloaded on - 19/04/2018 23:24:21 :::HCHP 11 इ सािनअत क तरह रहूंगी! य द आइ दा उपरो कसी कार क गलती करती पाई जाऊंगी तो मेरे पित का हक़ होगा क वह मेरे खलाफ कानूनी कायवाह अमल मे ला सकता है ! इसम मेरा कोई ऐतराज न होगा! मै यह तहर र अपनी होशवास मे .
िलखकर दे रह हूँ.
गवाह शुद िनमला दे वी
Sd/- sd/-"
25. Ext. RW5/B is the compromise entered between the parties whereby it has been provided that the appellant would be permitted to meet the children only with the consent of the respondent because it would adversely impact the education as also the mental state of the children.
This in entirety is the evidence led by the parties.
26. Before adverting to the relative merits of the case, it is worthwhile to mention that the minors are currently aged about 12 years and were produced before this Court, but did not show any interest to accompany the appellant and, as a matter of fact, they even refused to recognise her, probably because of the time lag, due to the re-marriage of the appellant. The children are living with their father, who has sufficient means to maintain them and in a better financial conditions to look after them. The father of the minors is a mason and earning sufficiently well from his trade. That apart, the other family members of the father of the minors, for the time being, are in a better position to look-after the minors.::: Downloaded on - 19/04/2018 23:24:21 :::HCHP 12
27. On the other hand, the appellant is earning Rs.6000/-
only and there is no evidence led by her that in her absence the other persons in the family to look after the minors.
.
28. What cannot be ignored at this stage is the fact that the appellant has got married to Yadav Chand, who, in fact, was instrumental and the cause of break-down of the marriage of the parties and, therefore, in such circumstances, it would not be prudent or wise to handover the custody of minors to the appellant, who have even refused to recognise her.
29. However, it needs to be clarified that the mere fact that the appellant has re-married in itself may not be a ground for depriving her of her parental right to custody and in the given facts and circumstances this Court is required to look into the other surrounding circumstances.
30. The principles of law in relation to custody of minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and paramount consideration is the welfare and interest of the child and not the rights of the parties under a statute.
Indubitably, the provisions of law pertaining to the custody of child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In ::: Downloaded on - 19/04/2018 23:24:21 :::HCHP 13 fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor.
31. The question of welfare of minor child has again to be .
considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve any binding precedents. Even in case of Lekha vs. P. Anil Kumar (2006) 13 SCC 555, which has been strongly relied upon by the learned counsel for the appellant to contend that the mere fact that the mother has re-married again is no ground for depriving her parental right to custody as clearly held by the Hon'ble Supreme Court that it is the welfare and interest of the child that has to be looked into and it was observed as under:-
"21. However, in the present case, we have to decide in the interest of the child as to who would be in a better position to look after the child's welfare and interest. The general view that the courts have taken is that the interest and welfare of the child is paramount. While it is no doubt true that under the Hindu law, the father is the natural guardian of a minor after the age of six years, the court while considering the grant of custody of the minor to him has to take into account other factors as well, such as the capacity of the father to look after the child's needs and ro arrange for his upbringing. It also has to be seen whether in view of his other commitments, the father is in any position to give personal attention to the child's overall development."
32. At this stage, it needs to be clarified that no doubt the previous conduct of the appellant has been rash and reckless in certain respects but that in no manner has influenced this Court while passing the instant order.
::: Downloaded on - 19/04/2018 23:24:21 :::HCHP 1433. Once the minor children, who otherwise were intelligent enough, have shown their complete reluctance to go with the appellant and, in fact, have not even recognised her, then in such .
circumstances, there can be no question of handing over the custody of the minors to the appellant as the same would not be either in the interest or the welfare of the minors.
34. At this stage, it would be apposite to refer to the judgment of M.K. Hari Govindan vs. A.R. Rajaram AIR 2003 Mad 315, wherein the Court held that custody cases cannot be decided on documents, oral evidence or precedents without reference to "human touch". The human touch is the primary one for the welfare of the minor since the other materials may be created either by the parties themselves or on the advice of counsel to suit their convenience.
35. Here reference can also conveniently be made to the judgment of Hon'ble Supreme Court in Kamla Devi vs. State of H.P. AIR 1987 HP 34, wherein the Court observed that "the Court while deciding child custody cases in its inherent and general jurisdiction is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases giving due weight to the circumstances such as a child's ordinary comfort, contentment, ::: Downloaded on - 19/04/2018 23:24:21 :::HCHP 15 intellectual, moral and physical development, his health, education and general maintenance and the favourable surroundings. These cases have to be decided ultimately on the Court's view of the best .
interest of the children whose welfare requires that he be in custody of one parent or the other."
36. Even though a number of judgments have been cited by either of the parties, but then as held by the Hon'ble Supreme Court in Nil Ratan Kundu vs. Abhijit Kundu (2008) 9 SCC 413 that the cases of custody have to be decided on the facts and circumstances of the each cases and precedents on the subject may not be safe to rely upon.
37. In the instant case, this Court is of the considered view that the learned Court below after taking into consideration the well settled principles of welfare of the child as paramount consideration, passed the impugned order, which cannot be said to be either illegal, much less perverse and the same, therefore, calls for no interference.
38. In view of the aforesaid discussion, I find no merit in this appeal and accordingly the same is dismissed, leaving the parties to bear their own costs. Pending application(s), if any, also stands disposed of.
(Tarlok Singh Chauhan), Judge.
April 19, 2018 sanjeev ::: Downloaded on - 19/04/2018 23:24:21 :::HCHP