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2005 DIGILAW 364 (PNJ)

Gaurav Nagpal v. Sumedha Nagpal

2005-03-10

M.M.AGGARWAL, S.S.NIJJAR

body2005
Judgment S.S.Nijjar, J. 1. Shri Rajiv Atma Ram, learned Senior counsel appearing for the appellant has submitted that vide order dated 10.2.2004, the Guardianship Court was directed to expedite the matter and to decide the same within three months by taking proceedings from day to day, if necessary. Since the proceedings were not being concluded, the time of deciding the case by the Guardianship Court was being extended. During the pendency of the decision vide order dated 20.10.2003 as an interim measure, it was directed that the father will bring the child to this Court on last Saturday of every month. The petitioner, thereafter, filed Civil Miscellaneous N0.18795-C-II of 2003 seeking clarification of the order dated 20.10.2003. Mr. Rajiv Atma Ram submits that the learned Single Judge vide order dated 4.12.2003 without issuing notice of motion to the appellant, clarified the same. Vide order dated 10.2.2004, the matter was adjourned to 29.3.2004 to await the decision by the Guardianship Court, After coming to know of the clarificatory order, the appellant filed Civil Miscellaneous No. 4740 of 2005 stating therein that the child is not willing to meet the mother though he has been offering the mother to meet the child. Mr. Atma Ram also refers to the report given by the Deputy Magistrate, Gurgaon on 28.12.2003 in which it is stated that the child, who had been brought to the Court for meeting the mother, had bluntly refused to meet her. The proceedings are still pending before the Guardianship Court at Gurgaon, Inspite of the order earlier passed by this Court in which it had been directed that C.O.C.P. was adjourned to await the decision of the Guardianship Court, the same has been decided finally vide order dated 9.3,2004. On that date, the learned Single Judge has passed the following orders: "(1) The respondent is sentenced to undergo simple imprisonment for one month and to pay fine of Rs. 2,000/-. In default to payment of fine, he will undergo further simple imprisonment for one week. (2) The respondent will pay a sum of Rs. 50,000/- to the petitioner by way of compensation for violation of her rights. 2,000/-. In default to payment of fine, he will undergo further simple imprisonment for one week. (2) The respondent will pay a sum of Rs. 50,000/- to the petitioner by way of compensation for violation of her rights. (3) The respondent will hand over custody of the child to the petitioner, who will be entitled to interim custody till disposal of the custody proceedings before the Guardianship Court." Pursuant to this order, the appellant was straightaway taken into custody and escorted to prison. The appellant had filed an application for suspension of the sentence on the same date, which has been disposed of by the learned Single Judge with the following order: "At this stage, an application has been moved for suspension of order of sentence. Order of sentence is suspended for one week on the condition that the respondent hands over the custody of the child to the petitioner. If the custody of the child is not handed over, the sentence will not be treated to have been suspended." 2. Shri Atma Ram has pointed out that the custody of the minor child had never been granted to the mother. In fact, she had withdrawn her claim for custody, which is apparent from the order passed by this Court. A perusal of the order dated 30.9.2002 shows that when the matter came up for admission on 14.5.2002, the petitioner had confined her prayer to meet the child on certain occasions, meaning thereby that she did not pray for interim custody of the child. The child is now stated to be in custody of the grand-mother. Learned counsel for the appellant has brought to our notice a judgment of the Hon ble Supreme Court in the case of Hari Nath Sharma v. Jaipur Development Authority, 1 (1995)4 Supreme Court Cases 251, in which it was argued by the learned counsel for the appellant that since the order is an appealable one, the least that the Court owed to its own sense of fairness and justice, was to suspend the sentence for a reasonable time to enable the appellant to approach the higher Court. In the aforesaid case, while issuing notice the Supreme Court had directed interim suspension of the order of conviction and sentence. The appellant therein had been directed to be released from custody forthwith. In the aforesaid case, while issuing notice the Supreme Court had directed interim suspension of the order of conviction and sentence. The appellant therein had been directed to be released from custody forthwith. In the present case, the matter inter parties had reached the Hon ble Supreme Court in Writ Petition No. 34 of 2000 decided on 3.3.2000 which is reported as Sumedha Nagpal v. State of Delhi and Ors., (2000)9 Supreme Court Cases 745. In this case, the wife had filed a petition for custody of the child, who at the relevant time, was only two years of age. While dealing with this issue, the Hon ble Supreme Court observed as follows:- "5. In deciding such a question, what we have to bear in mind is the welfare of the minor child and not decide such a question merely based upon the rights of the parties under the law. In the pleadings and the material placed before us, we cannot say that there is any, much less clinching, material to show that the welfare of the minor child is at peril and calls for an interference. The trauma that the child is likely to experience in the event of change of such custody, pending proceedings before a Court of competent jurisdiction, will have to be borne in mind. We are conscious of the emphasis laid by the learned counsel for the petitioner that the lap of a mother is the natural cradle where the safety and welfare of the child can be assured and there is no substitute for the same, but still we feel that at this stage of the proceedings it would not be appropriate for us to interfere in the matter and leave all matters arising in the case to be decided by an appropriate forum irrespective of whatever we have stated in the course of this order. Even though we have dealt with the contentions raised by Shri D.D. Thakur, as to grant the interim custody to the petitioner, we should not be understood as having held that a petition would lie under Article 32 for grant of custody of a minor child; we retrain from examining or deciding the same. 6. Before parting with the case, we cannot but express our deep anxiety over the matter. 6. Before parting with the case, we cannot but express our deep anxiety over the matter. No decision by any Court can restore the broken home or give a child the care and protection of both dutiful parents. No Court welcomes such problems or feels at ease in deciding them. But a decision there must be, and it cannot be one repugnant to normal concept of family and marriage. The basic unit of society is the family and that marriage creates the most important relation in life, which influences morality and civilisation of people, than any other institution. During infancy and impressionable age, the care and warmth of both the parents are required for the welfare of the child and we do hope that in this case the petitioner and respondent No. 2, the parents, would realise what their responsibility should be and set right their broken home for the sake of their child?" 3. It appears that the aforesaid advice given by the Hon ble Supreme Court has had little effect on the parties and the battle now continues in the Guardianship Court. As observed by the Hon ble Supreme Court, it would not be appropriate for this Court to make any observation on the relative merits of the case put forward by the parties. The matter will ultimately be decided by the competent Court of jurisdiction on the basis of evidence. 4. Notice of motion for 26.4.2005. 5. In the meanwhile, we are of the opinion that since the order of the learned Single Judge is appealable, the better course would be to adopt the approach similar to the course adopted by the Hon ble Supreme Court in Hari Nath Sharma s case (supra). We, therefore, stay the operation of the order dated 9.3.2005 passed by the learned Single Judge. The appellant shall be released from custody forthwith and all consequential administrative orders pursuant to the conviction and sentence shall also remain stayed. Copy of this order be given dasti under the signatures of Court Secretary.