Delhi District Court
Govind Sharma vs Yogesh Kumar Sharma on 6 August, 2012
IN THE COURT OF SH. A.K. CHAWLA : DISTRICT JUDGE
(NORTH): DELHI.
GP1/09
Case ID No.02401C0347882008
Govind Sharma
S/o Late Babu Lal Sharma
R/o B1879, Jahangir Puri,
Delhi 110 033. ..... Petitioner
Versus
1. Yogesh Kumar Sharma
S/o Panna Lal Sharma
2. Smt. Lata Sharma
W/o Sh. Yogesh Kumar Shrma
Both R/o Mohalla Manak Chowk,
Near Gouri Shankar, Dharmsala
Anup Shahar, Distt. Bulandshahar U.P.
Date of Institution of the suit : 04.03.2008
Date of reserving the judgment : 28.07.2012
Date of pronouncement : 06.08.2012
JUDGMENT
Petition is filed under section 6 of the Hindu Minority and GP 1/09 Page 1/15 Guardianship Act, 1956 and under section 17 of the Guardians and Wards Act,1890.
2. Petition proceeds on the premise that the petitioner was the natural father of 'the minor' Master Manish Sharma hereafter referred to as 'the minor', but, the respondents, who are the maternal grandparents of 'the minor', taking benefit of the arrest of the petitioner in case FIR no.238/04 under section 498A/304B/34 IPC, had taken away 'the minor' from the lawful custody of the petitioner on 4.4.2004 and were keeping him under their unlawful detention. It is the case of the petitioner that he had married the respondents' daughter Ms. Jyoti on 3.3.2001, according to Hindu rites and customs and from their wedlock, 'the minor' was born on 20.5.2002 and that, on the intervening night of 3/4.4.04, when the wife of the petitioner was having second pregnancy and had gone to the kitchen after serving meal to the petitioner and minor, she caught fire and got burnt, but, the respondents got the petitioner falsely implicate in case FIR no. 238/04 under section 498A/304B/34 IPC and thereon, both the petitioner and his mother were arrested, but for the father of the petitioner, who was in poor medical condition and taking benefit of the petitioner's adverse position, took away 'the minor' with them. On trial, the petitioner was GP 1/09 Page 2/15 convicted only for the offence U/s 498A/34 IPC on 12.12.2006 and released from jail, having availed the benefit under section 428 Cr.P.C. It is the case of the petitioner that not only during the course of trial but even after his release from jail, though the petitioner contacted the respondents through the common relatives, he was informed that 'the minor' was not allowed to be seen by anyone and the respondents also refused to handover his custody. It is then alleged that after sometime of 11.8.07, the respondents started demanding Rs.2 Lacs for handing over 'the minor' and though the petitioner felt that with the passage of time, the respondent would realise their mistake, but, a few days before, he came to know that his son was not being looked after well and was not being given proper schooling and, was also suffering from jaundice, in order to hasten the custody of 'the minor', filed a criminal writ petition no. 222/08 before the Hon'ble High Court but, it was not entertained and the petitioner was directed to file a proper petition before the appropriate forum. Petition so came to be filed before this Court in March, 2008. Prayer made in the petition proceeds on the premise that the petitioner was the natural father of 'the minor' and was having his own house in Delhi and that, the family comprised of himself, his widowed mother and 'the minor' only and that, the petitioner had not married again for the sake of 'the minor' and was in GP 1/09 Page 3/15 a position to look after 'the minor' properly.
3. Notice of the petition was issued to the State through Collector and a copy was affixed on the notice board of the court. Citation was also published in the newspaper "National Herald" dated 14.3.2008 for information of general public. None came forward from general public to file any objection.
4. Respondents in the written statement filed, raised preliminary pleas/objections viz. the petitioner and his parents were cruel and were not satisfied with the dowry brought by their daughter Jyoti, who married petitioner at Anup Shahar, Bulandshahar, UP on 3.3.2001 and have been illtreating, torturing and harassing for the demands of dowry and that, Ms. Jyoti had sustained 90% burn injuries on the night on 3.4.2004 and in relation to the said incident, a case under sections 498A/304B/34 IPC was registered against the petitioner and his parents on 4.4.2004 and on trial, the petitioner was convicted for the offence U/s 498A IPC, whereas his parents were acquitted; respondents had taken 'the minor' with them on 4.4.2004 and since thereafter, either during the course of the trial of the case under sections 498A/304B/34 IPC or after the release of the petitioner from GP 1/09 Page 4/15 jail, neither the petitioner nor his parents ever tried to either meet or claim the custody of 'the minor'; though the father of the petitioner was not arrested by the police, even he, neither ever tried to meet 'the minor' nor claimed his custody and that, it reflected that neither the petitioner nor his parents had any love and affection for 'the minor'; 'the minor', at the time of filing WS, was aged about 6 years and studying in class UKG in Kalawati Shishu Mandir, Nangalshali, Anup Shahar, UP, after passing the nursery, KG and LKG classes and was sincere/intelligent in his studies and therefore, his removal from the school and the society, would affect 'the minor' mentally, as also physically; after the demise of the mother, 'the minor' was being looked after by the respondents and their family and they were spending huge amounts for his future and therefore, it would be against the principles of natural justice and equity; and, the mother of the petitioner had no love and affection for 'the minor' and she wanted to remarry the petitioner and that, the petitioner by himself, neither had time nor was financially sound to look after 'the minor' or his requirements. On merits, denying the assertions and the allegations made in the petition, the respondents also took the plea that after the death of 'the minor' of the mother, neither the petitioner nor his family members were ready and willing to keep 'the minor' and therefore, the GP 1/09 Page 5/15 respondents had taken the custody of 'the minor'. Also, according to the respondents, the sister of the petitioner was not interested to take the custody of 'the minor' either on 4.4.2004 or at any other point of time and that, even the father of the petitioner, who was not arrested, was ever interested to keep 'the minor'. It is also alleged that the petitioner was a daily drunkard and that mother of the petitioner was an old lady and had no love and affection for 'the minor' and that, the petitioner also did not own any immovable property in Delhi nor was there any movable and/or immovable property in the name of 'the minor'.
5. On the pleadings of the parties, the following issues were framed:
(i) Whether the petition is entitled to the custody of minor child namely Manish Sharma? OPP
(ii) Relief
6. Petitioner in support of his case examined himself as PW1 and closed PE. Respondents in support of their case examined respondent no.1 as RW1 and closed RE.
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7. Petitioner in his deposition by way of affidavit Ex.PI deposed, as averred to and alleged in the petition, which is not being reproduced for the sake of brevity. In addition thereto, by his oral deposition, he also proved the birth certificate Ex.PW1/A of 'the minor'. He also proved on record the judgment Ex.PW1/B and the copy of sentence Ex.PW1/C, having faced the trial of the offences under sections 498A/304B/34 IPC. In his oral deposition, he also deposed that he was employed with M/s Sargam Electronics and getting salary of Rs.7,500/ p.m., but, had not brought the salary certificate. He also deposed that he filed a Crl. Writ petition no.222/08 but the same was decided vide order dated 15.2.2008 Ex.PW1/E. Petitioner, as such deposed to prove his case for the relief prayed.
8. Respondent no.1, who appeared as RW1, in his deposition by way of affidavit Ex.RW1/A, deposed as averred to and alleged in the WS, the contents thereof, are not being being reproduced for the sake of brevity. In his such deposition by way of affidavit, which was filed in December, 2011, he also deposed that 'the minor' was aged about 8 years and studying in classII in Kelawati Shishu Mandir, Nagar Shaili, Anup Shahar (UP) and the child was very sincere and intelligent and that, the report card of 'the minor', received by him GP 1/09 Page 7/15 from the school in original was Ex.RW1/1 (objected to). He also deposed that his house was measuring about 200 sq. yds. and comprised of several rooms and 'the minor' had enough space to study peacefully and play in the house, whereas, the petitioner had a very small house built in an area of 25 sq. yds. located in a J.J. Colony, allotted by the Govt. of Delhi on the removal of Jhuggies and that, the petitioner was not even the owner of the said house, which was allotted in the name of his mother. RW1 also deposed that the environment of the locality of J.J. Colony, Jahangir Puri, was not good for 'the minor', whereas, the locality and the environment of the house of the respondents was very good and that, the environment of studies at Anup Shahar was quite equal to that of Delhi, in as much as, in Anup Shahar, there were four senior secondary schools and one Degree College besides, IBM College for Computer Science and that, the JP Group was also going to open a University at Anup Shahar and therefore, if the child was removed from the school in which he was studying since beginning and the society, the child would be affected mentally as also physically. Also, since the death of the mother of 'the minor', 'the minor' was looked after, grown up by RW1 and his family and that, 'the minor' had developed much love, affection and attachment for the respondents and the respondents were giving all the GP 1/09 Page 8/15 love and affection to 'the minor', being the only son of their daughter, who was killed by the petitioner and his parents and the RW1 was spending huge amounts for the study as well as the future of 'the minor', who was residing with the respondents since 4.4.2004. RW1 also deposed that there was no one in the family of the petitioner except his old aged mother, the sisters of the petitioner have married, were living separately with their families and that, the mother of the petitioner had no love and affection for the child and wanted to re marry the petitioner and that, the petitioner shall have no time during day time, to even drop and pickup the child and look after him, besides the fact that the petitioner was not financially sound to fulfil the requirement of the child like admission fee, tuition fee, school dress, conveyance charges and other day to day expenses, while the mother of the petitioner was suffering from various old aged ailments, like eye problem, sugar and knee problem. As against that, the respondents were financially and physically in sound position and that, RW1 was having 10 bighas of agriculture land in the village and was also having a house of 200 sq. yds. in the town, besides having sufficient bank balance and therefore, in a position to lookafter 'the minor'. He also deposed that the daughters of the respondents were already married and living separately and the son of the respondents was married and GP 1/09 Page 9/15 earning handsomely, while the respondents had no other responsibility or liability, but, to lookafter 'the minor' and ensure his good future. He also deposed that he had lodged a true complaint with SHO PS Jahangir Puri. RW1, as such deposed to belie the case of the petitioner.
9. I have heard the Ld. counsel for the parties and perused the record carefully.
10. My issuewise findings are as follows :
ISSUE NO.1 Whether the petition is entitled to the custody of minor child namely Manish Sharma? OPP It is not in dispute that 'the minor' was born from the marriage of the petitioner with Ms. Jyoti (since deceased)the daughter of the respondents, on 20.5.2002, the marriage having taken place on 3.3.2001. It is equally not in dispute that Ms. Jyoti died an unnatural death on 4.4.2004, having sustained the burn injuries in the intervening night of 3/4.4.2004 and for the said incident, the petitioner and his parents were tried for the offences under sections 498A/304B/34 IPC GP 1/09 Page 10/15 and that, on trial, only the petitioner was convicted for the commission of offence under section 498A IPC and sentenced for the period undergone, vide judgment Ex.PW1/B and the order on sentence Ex.PW1/C, both dated 12.12.06. It is equally not in dispute that since 4.4.2004, 'the minor' has been in the custody of the respondents, who were his maternal grandparents. Petition for seeking the custody of 'the minor' came to be filed only in 2008. Whether 'the minor' was forcibly removed from the custody of the petitioner, who is the natural father, no cogent evidence has surfaced on record. It appears that on the demise of Ms. Jyoti on 4.4.2004, FIR for the offences under sections 498A/304B/34 IPC was registered and thereon, the petitioner and his mother were arrested and in the absence of anyone else, who could take care of 'the minor', the respondents, who were the maternal grandparents, undertook the responsibility to take care of 'the minor' and since then, 'the minor' has been in the custody of the respondents.
Minor is shown to have studied in KGI, KGII, UKG and classI and presently, studying in 3rd standard in a school at Anup Shahar (UP), where the respondents reside. Respondent no.1, who is the maternal grandfather of 'the minor' and appeared as RW1, in his unchallenged and unrebutted deposition has categorically deposed that besides the education, he is equally taking care of the wellbeing of 'the minor' GP 1/09 Page 11/15 with love and affection, being the only son of his deceased daughter and spending huge amounts for the education and the bright future of 'the minor'. To the contrary, there is neither any plea nor any evidence has surfaced to show that the petitioner or any of his relations ever cared to provide for any of the needs of 'the minor', whether financial or otherwise, but for the bald assertion of the petitioner that he tried to meet 'the minor' during the period he was confined to jail or after his release. It is thus, well established on record that neither during the period of confinement in jail and after release, the petitioner either by himself or through any of his other relations, took any constructive steps either to extend any financial assistance for 'the minor' or even have any visitation right muchless, the custody, either temporary or otherwise, which could reflect his emotions, love and affection for 'the minor'. In fact, there is nothing on record, to show that even during the pendency of the instant proceedings, the petitioner ever took any interest for the purpose. No effort is shown to have been made to meet the child, even in the Court. Is that the love and affection and the concern of a natural father for his own child? Such conduct of a father is least expected and is unnatural. No doubt, the father is the natural and lawful guardian of 'the minor' and therefore, has the legitimate right to have the custody and control over his children, but, GP 1/09 Page 12/15 such right, cannot be allowed to be exercised against the interest or the welfare of the children. For the custody of 'the minor', the paramount consideration has to be his welfare and in determining that, the matters of immediate consideration are of his comfort, health and the development of moral, intellectual and spiritual values. It includes the ties of affection. In the case in hand, 'the minor', since his tender age of less than two years, has remained in the custody of his maternal grandparents and it is the said grandparents only, who have looked after and cared for 'the minor' since his such tender age, and, besides providing for the basic necessities of life, are also providing him education and bearing all the expenses. 'The minor' is now, more than 10 years of age and studying in 3rd standard. Besides the company of maternal grandparents, he is also having the company of his Mama (maternal uncle), his wife and their two children, who are of the similar age, as that of 'the minor'. Suffice to say, the deposition of RW1 during cross, that his family comprised of his mother, his wife, his son Gaurav Sharma, his son's wife and two of their children, besides 'the minor', has not only gone unshaken but is unrebutted as well. It is thus, further established that 'the minor' from his tender age of less than two years, having lost his mother and the father being lodged in jail, is growing in a healthy and traditional family, headed by GP 1/09 Page 13/15 the maternal grandfather i.e. the respondent no.1. Though, 'the minor' as of now is aged about 10 years and could not be expected to form an independent opinion and express his views for being in the custody of one or the other, I had interacted with 'the minor' on two of the occasions in the Court as also in the chamber separately. I found him to be quite happy. It has been another instance and a reflection of his comfort level in the company of the respondents and the other family members. Taking into account the totality of the facts and circumstances, in my considered view, it shall not therefore, be in the welfare of 'the minor', if the custody of 'the minor' is handed over to the petitioner, though, he is the natural father. Even, as regards the financial status of the petitioner, no cogent evidence of his income has come to be adduced on record. As per his own deposition, he was earning only Rs.7,500/ p.m. Though, no cogent evidence is led by the petitioner to prove such income, even if, it is assumed that he was earning Rs.7,500/ p.m., he also has an aged mother to support. In the present times, income of Rs.7,500/ p.m. to support the petitioner, his mother and then, 'the minor', who would require education as well, in my considered view, is equally not sufficient, to take care of the interest and the welfare of 'the minor'. Though, it is true that the respondents have also not led any cogent evidence as regards their GP 1/09 Page 14/15 income, suffice to say, they have brought up the child and provided him with education starting from KGI onwards. It does reflect their good financial capacity to not only to look after and maintain 'the minor' but also provide good education. Not only that, as per the deposition of RW1, the petitioner was living in a house with an area of only 25 sq. yds. located in a J.J. Colony, whereas, the respondents were living in a house measuring about 200 sq. yds. To my mind, the residential accommodation of the respondents is also better for the upbringing and the development of 'the minor'. Anup Shahar (UP) may not be having schools of big name and fame, but, it cannot be assumed that the education 'the minor' gets there, would not be at par with the education being provided in the schools at Delhi. Looking it from any angle, I therefore, consider it to be in the fitness of the things that the custody of 'the minor' should remain with the respondents.
In view of the foregoing, the issue in hand is answered in the negative.
RELIEF:
Petition is dismissed.
Announced in the open Court (A.K. Chawla)
on 6th day of August, 2012 District Judge(N), Delhi
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