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2008 DIGILAW 1100 (PNJ)

Hardeep Kumar Sharma v. Madan Gopal Sharma

2008-05-26

T.P.S.MANN

body2008
JUDGMENT T.P.S. Mann, J.:- Order passed by learned Additional Civil Judge (Senior Division), Nabha on 28.2.2008, while allowing the application of the respondent for interim custody of minor has been challenged by the petitioners by filing the present revision under Article 227 of the Constitution of India. 2. The respondent was married to Smt. Shashi Kiran on 28.4.1999. From this wedlock, one son was born on 30.7.2000. At the time of delivery of the second child, namely, Sneha, Smt. Shashi Kiran died on 25.7.2004. 3. A petition under Section 25 of the Guardian and Wards Act, 1890 (for short ‘the Act’) was filed by the respondent claiming therein that he was father and natural guardian of his minor daughter Sneha, who was in illegal custody of the petitioners, who are brother and wife, respectively, of his late wife Smt. Shashi Kiran. He sought the custody of his daughter Sneha. He also filed an application before the learned Court below asking for interim custody of his minor daughter on the ground that he, being father, would look after her in a better way. 4. The stand of the petitioners was that the wife of the respondent had died at the time of giving birth to minor Sneha and the said child was given in adoption by the respondent to them. They were real maternal uncle and maternal aunt of the child. The respondent had refused to take responsibility of the child after the death of his wife Smt. Shashi Kiran. Since he had already abandoned his rights as father, he was not entitled for custody of the minor child and also for her interim custody. 5. Learned lower Court accepted the application of the respondent for interim custody of the minor child after meeting the various objections raised by the petitioners. 6. Learned counsel for the petitioners submitted that the respondent was responsible for death of mother of the minor child. 7. Besides, he was interested to take custody of the said child only due. to greed for money, as sufficient amount stood deposited in the name of the child. At the time of death of Smt. Shashi Kiran, the respondent refused to take responsibility of the child and, in fact, gave the child in adoption to the petitioners. Ever since then, they were looking after the child and showering love and affection on her. to greed for money, as sufficient amount stood deposited in the name of the child. At the time of death of Smt. Shashi Kiran, the respondent refused to take responsibility of the child and, in fact, gave the child in adoption to the petitioners. Ever since then, they were looking after the child and showering love and affection on her. The respondent had already re-married and in case the custody of the child in question was given to him, the child would practically become motherless, as the step-mother would be least interested to look after the child. Right since her birth, the minor child has not met the respondent. The paramount consideration was welfare of the child, which was well looked after by the petitioners. Though, Smt. Kiran Sharma petitioner was not real mother of the minor child but her maternal aunt yet, she has brought up the child, who is now about four years of age as her own child by even breast feeding her. Both the petitioners have sufficient resources in their possession to look after the child. At present, the child has been got admitted by them in Nursery class in New Public School, Hira Mahal Colony, Nabha. Therefore, it was prayed that the impugned order be set aside and they be allowed to retain the interim custody of the child till the final disposal of the petition under Section 25 of the Act filed by the respondent. 8. On the other hand, learned counsel for the respondent submitted that he being the natural father of the child has the first right to obtain the interim custody of the minor child viz-a-viz the petitioners, who are her maternal uncle and aunt. Both the petitioners already have three children and, thus, there was no question of having given minor child in adoption to them after the death of his wife. It was also submitted that the other child of the respondent, who is now about eight years of age, is also missing the company of his younger sister, i.e. the minor child in question. The respondent, thus, sought dismissal of the revision filed before this Court. 9. On 22.4.2008, when the hearing was adjourned for 19.5.2008, the parties were directed to be present, besides producing their minor child. Both the parties came present at the time of hearing. The minor child was also produced by the petitioners. The respondent, thus, sought dismissal of the revision filed before this Court. 9. On 22.4.2008, when the hearing was adjourned for 19.5.2008, the parties were directed to be present, besides producing their minor child. Both the parties came present at the time of hearing. The minor child was also produced by the petitioners. Both the parties were heard. More or less, they reiterated what they had earlier taken up as their stand before the learned lower Court. One thing was obvious that the child was happy in the company of the petitioners. 10. It is admitted fact that ever since her birth the child in question has lived with the petitioners. It has been stated by Smt. Kiran Sharma petitioner that she had been bringing up the child in the same way as her natural mother would have done. She had even been breast feeding the child. The child is now about four years old and studying in Nursery class in New Public School, Hira Mahal Colony, Nabha. Under these circumstances, the interest of the child lay in being looked after by her maternal uncle and aunt, at least till the final decision of the petition filed by the respondent under Section 25 of the Act. The child has not seen the respondent ever since her birth. At such a young age, a child would suffer the pangs of separation, if taken away from her maternal aunt, who has looked after her ever since her birth as her natural mother, in case the interim custody of the child is granted to the respondent. In cases of custody, the paramount consideration is welfare of the child and not the legal right of either parties. 11. In Rajesh K. Gupta Vs. Ram Gopal Agarwala and others, [2005(2) LAW HERALD (P&H) 771(SC)] : J.T. 2005(5) S.C.1, it was held by the Hon’ble Supreme Court after referring to Dr. (Mrs.) Veena Kapoor Vs. Shri Varinder Kumar Kapoor (1981) 3 SCC 92 and Syed Saleemuddin Vs. Dr. Rukhsana and others 2001(2) RCR (Civil) 613 (SC) that in cases of dispute between the mother and father regarding the custody of their child, the paramount consideration was welfare of the child and not the legal right of either of the parties. (Mrs.) Veena Kapoor Vs. Shri Varinder Kumar Kapoor (1981) 3 SCC 92 and Syed Saleemuddin Vs. Dr. Rukhsana and others 2001(2) RCR (Civil) 613 (SC) that in cases of dispute between the mother and father regarding the custody of their child, the paramount consideration was welfare of the child and not the legal right of either of the parties. The relevant observation is as under:- “It is well settled that in an application seeking a writ of habeas corpus for custody of minor child, the principal consideration for the court is to ascertain whether the custody of the child can be said to be lawful or illegal and whether the welfare of the child requires that the present custody should be changed and the child should be left in the care and custody of someone else. It is equally well settled that in case of dispute between the mother and father regarding the custody of their child, the paramount consideration is welfare of the child and not the legal right of either of the parties [see Dr. (Mrs.) Veena Kapoor v. Shri Varinder Kumar Kapoor, (1981)3 SCC 92 and Syed Saleemuddin Vs. Dr. Rukhsana and others, 2001 (2) RCR (Civil) 613 (SC): (2001)5 SCC 247]. It is, therefore, to be examined what is in the best interest of the child Rose Mala and whether her welfare would be better looked after if she is given in the custody of the appellant, who is her father.” 12. It is apparent that the petitioners are well equipped to look after the minor child. Smt. Kiran Sharma petitioner has been practically acting as mother of the minor child ever since her birth. Both the petitioners have showered their love and affections on the minor child. Thus, the paramount consideration of welfare of the child would be best served if the petitioners are allowed to retain the interim custody of the minor child. In view of the above, the impugned order passed by learned Civil Judge (Senior Division), Nabha, while granting interim custody of the minor child to the respondent cannot be upheld. The same is, therefore, set aside by allowing the revision. 13. The petition under Section 25 of the Act was filed by the respondent before the learned lower Court in the year 2006. The same is, therefore, set aside by allowing the revision. 13. The petition under Section 25 of the Act was filed by the respondent before the learned lower Court in the year 2006. I have been informed that no progress has been achieved in the same, except for deciding the application of the respondent for obtaining interim custody. In the facts and circumstances of the case, learned lower Court is directed to proceed with the trial of the petition filed by the respondent in an expeditious manner. No long and unnecessary adjournments be given. The parties be specifically bound for producing their respective evidences. Efforts be made to dispose of the petition within six months from the next date fixed before it. 14. However, nothing stated above shall be construed as an expression on the merits of the case. These observations have been made only for the disposal of the revision filed by the petitioners. —————————