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2009 DIGILAW 850 (ALL)

MAMTA SINGH v. KAMALKANT GAUTAM

2009-03-20

AMITAVA LALA, SHISHIR KUMAR

body2009
AMITAVA LALA, J. This appeal has been heard on the informal papers on exchange of affidavits, as agreed upon by the learned Counsel appearing for the parties. 2. The controversy arose in this appeal out of an order passed by the Principal Judge, Family Court, Agra on 16th April, 2008 in Case No. 25 of 2007 (Sri Kamal Kant Gautam Vs. Smt. Mamta and another) under Section 7 of the Guardians and Wards Act, 1890 with regard to guardianship of minor daughter of the appellant/opposite party no. 1 (the girl) and the respondent/applicant (the boy ). As per the order impugned, the respondent/applicant is entitled to get the custody of the minor child within a month from the date of the impugned order passed by such Family Court. 3. The brief facts of the case, as was set up by the respective parties before the Court below, are that the respondent/applicant filed an application under Section 7 of the Guardians and Wards Act, 1890 before the Court below saying that he is working in Mumbai (Maharashtra), where he came in contact with the appellant/opposite party no. 1 and later on they fell in love and ultimately, they entered into a marital relation as on 27th September, 2004. Since then they started living in the house of the respondent/applicant and ultimately in their wedlock on 21st November, 2005 one daughter was born in a nursing home i. e. Dixit Nursing Home, Agra, Uttar Pradesh. By the parents of appellant/opposite party no. 1 the demand of money etc. was raised for construction of house, which was fulfilled by the respondent/applicant, but even thereafter several demands were also made. On 18th March, 2006 the appellant/opposite party no. 1 along with newly born daughter went to her parental home saying that she will go to vaishno Devi for darshan. However, the respondent/applicant after coming to know the fact that the appellant/opposite party no. 1 along with newly born daughter is, in fact, residing at her parental house at Agra, he went there, where he found that the appellant/opposite party no. 1 belongs to "bediya" community and the activities like prostitution, etc. are their occupation. The respondent/applicant felt sorrow and he requested the appellant/opposite party no. 2 to handover his wife (the appellant no. 1) and daughter to him when she raised a demand for a sum of Rs. 25,00,000/- and misbehaved with him. 1 belongs to "bediya" community and the activities like prostitution, etc. are their occupation. The respondent/applicant felt sorrow and he requested the appellant/opposite party no. 2 to handover his wife (the appellant no. 1) and daughter to him when she raised a demand for a sum of Rs. 25,00,000/- and misbehaved with him. However, the appellant/opposite party no. 1 once again has indulged herself in the occupation of prostitution for quite some time. It was further stated by the respondent/applicant before the Court below that if his daughter remains in such a society, it will cause adverse effect on her personality. In such circumstances, by filing application the respondent/applicant sought relief to get back the custody of his daughter in his favour. 4. The appellants/opposite parties filed their written statement and admitted that they belong to "bediya" community and their occupation is dancing and singing from the ancient time. They have also stated that the appellant/opposite party no. 1 was a bar dancer in Mumbai and she came in contact with the respondent/applicant so many times and thereafter she also went for outing with him. The respondent/applicant after taking the appellant/opposite party no. 1 to a temple put "sindoor" (vermilion) in her "maang" and photographs were taken, but the appellant/opposite party no. 1 never lived with him and continued with her work of Bar dancer. Thereafter, the appellant/opposite party no. 1 went to Kolkata, where she came in contact with many youths, who did intercourse with her and the child was born out of such relationship with any one of them. The appellant/opposite party no. 1 also moved an application before the Senior Superintendent of Police, Agra saying that the respondent/applicant is harassing her and the certificate of marriage was demanded by the Senior Superintendent of Police, Agra. The photocopy of the report of Senior Superintendent of Police was annexed by the appellants/opposite parties with their written statement filed before the Court below. However, the averments of the appellants/opposite parties were duly replied by the respondent/applicant. Evidences were led and the arguments were advanced before the Court below. The parties have accepted that birth of the child took place in Dixit Nursing Home at Agra on 21st November, 2005. Several photographs were examined, which established the marital relationship between the respondent/applicant and the appellant/opposite party no. 1. Objection was raised by the appellant/opposite party no. Evidences were led and the arguments were advanced before the Court below. The parties have accepted that birth of the child took place in Dixit Nursing Home at Agra on 21st November, 2005. Several photographs were examined, which established the marital relationship between the respondent/applicant and the appellant/opposite party no. 1. Objection was raised by the appellant/opposite party no. 1 by saying that the nature of the marriage can not be said to be acceptable in the eye of law. However, the Court below held that when no complaint was lodged by the appellant/opposite party no. 1 on account of forcible marriage, if any, between them for about 3 & years particularly when she was normally living in a metropolitan city, like Mumbai, and the appellant/opposite party no. 1 is not an illiterate lady although she belongs to "bediya" community, it can be safely presumed that there was marital relationship between the appellant/opposite party no. 1 and the respondent/applicant. 5. So far as birth of the child is concerned, the Court below observed that birth certificates had been produced by the respondent/applicant as well as the appellant/opposite party no. 1 independently. In the first birth certificate, which had been produced by the respondent/applicant, the name of father of the child has been shown as kamal Kant (Rajesh), whereas, in the birth certificate filed by the appellant/opposite party no. 1 the name of father of the child is written as rajesh Singh. In reply to such birth certificate filed by the appellant/opposite party no. 1, the photocopy of the Birth-Death Register of Nagar Nigam, Agra was filed by the respondent/applicant, in which name of father of the child is recorded as kamal Kant C/o Mr. Rajesh. Therefore, the name of father of the child is more specific from the birth certificate produced by the respondent/applicant if it is compared with the Register of the Nagar Nigam, Agra. As such, the Court below came to a conclusion that the child was born in their wedlock and the respondent/applicant is father of the child. 6. So far as marriage is concerned, the Court below further observed that the appellant/opposite party no. 1 has admitted putting of sindoor (vermilion) in her maang but thereafter no action was taken by her against the respondent/applicant. Subsequently, a letter was written by the appellant/opposite party no. 6. So far as marriage is concerned, the Court below further observed that the appellant/opposite party no. 1 has admitted putting of sindoor (vermilion) in her maang but thereafter no action was taken by her against the respondent/applicant. Subsequently, a letter was written by the appellant/opposite party no. 1 to the Senior Superintendent of Police, Agra, on which Circle Officer, Fatehabad, Agra did enquiry, however, the appellant/opposite party no. 1 had not taken any action against the respondent/applicant before the birth of child at any place, which indicates that the appellant/opposite party no. 1 had no objection with regard to their marriage but intention had been changed only after the birth of the girl child. It has been further observed by the Court below on the basis of the arguments advanced by the parties that birth of a girl child in the family of "bediya" is boon because they expect that the girl child will join their occupation of dancing, singing and other activities, which will be another source of income in future. 7. The Court below held with a strong presumption that it is settled law that marriage may be void but the birth of child never becomes void. A person, who does not belong to community of "bediya", would obviously hesitate in keeping her daughter in "bediya" community and such hesitation will arise only when he will have full confidence about the birth of daughter in their wedlock. The Court below observed that there is no resemblance between the statement and the documents filed by the appellant/opposite party no. 1. She has categorically stated that she has no knowledge who is father of the girl child as she (child) born due to physical relationship with many people but she got the name of father of the girl child recorded in the governmental document knowingly. The Court below has further considered the report submitted by the Circle Officer, Fatehabad, Agra on the letter written by the appellant/opposite party no. 2 to the Senior Superintendent of Police, Agra and found that from such report it is clear that he has not conducted impartial investigation but had taken the statements of some local persons which are not on record. He had not made any effort to visit Kolkata or Mumbai to verify the truth. The report, which has been filed before the Court below, is based on no investigation. He had not made any effort to visit Kolkata or Mumbai to verify the truth. The report, which has been filed before the Court below, is based on no investigation. Therefore, in totality of the matter the Court below has reached to a conclusion that the application filed by the respondent/applicant deserves to be allowed and accordingly, allowed the same with costs and the appellant/opposite party no. 1 was directed to give custody of the child to the respondent/applicant within a period of one month. 8. Being aggrieved by and/or dissatisfied with such order, this appeal has been preferred by the appellants/opposite parties before this Court. Initially this Court was pleased to call upon the respondent/applicant as well as the appellant/opposite party no. 1 to be personally present before the Court to hear out the submissions of their respective Counsel in their presence, so that they can be personally aware whether any of such submissions are conflicting with their interest or not particularly when family law is no law and the talks of reconciliation will have to be tried upto the last extent. However, upon hearing the parties on 15th May, 2008 delivery of the judgement was reserved with a clear direction to the parties that if they reach to their consensus, they can come back and mention before this Court to pass any appropriate order on their consensus. But when no body came forward after a considerable period, our conscience was not permitting us to pass any order without giving further opportunity, therefore, we had directed to place the matter once again in the list for all practical purposes. However, we found that the girl (appellant/opposite party no. 1) was very much rigid either by her own accord or under the pressure of her companions, who were regularly coming to the Court. Ultimately the Court was compelled to ask certain questions to both i. e. the appellant/opposite party no. 1 and the respondent/applicant and directed to produce the girl child for the purpose of examination because her interest is the paramount consideration. But we found that she (girl child) is not intellectually capable of giving any answer even after the best effort of the Court independently and following the ratio of the judgements of the Supreme Court reported in 2006 (13) SCC 555 (Lekha Vs. P. Anil Kumar) and 2006 (3) SCC 62 (Sheila B. Das Vs. But we found that she (girl child) is not intellectually capable of giving any answer even after the best effort of the Court independently and following the ratio of the judgements of the Supreme Court reported in 2006 (13) SCC 555 (Lekha Vs. P. Anil Kumar) and 2006 (3) SCC 62 (Sheila B. Das Vs. P. R. Sugasree ). 9. In such a situation, the Court had no other option but to get help of the science and ask the parties for DNA (deoxyribonucleic acid) test because DNA determines the particular structure and functions of every cell and is responsible for characteristics being passed on from parents to their children. Earlier outlook with regard to DNA evidence in matrimonial cases appears to be orthodox in nature. Law courts were of the opinion that compelling one to go for forensic test, like, DNA will hit personal liberty of an individual as per Article 21 of the Constitution of India. But after a three Judges Bench judgement of the Supreme Court reported in 2003 (4) SCC 493 (Sharda Vs. Dharmpal) there is a sea change to get an appropriate coordination between the science and the law. We get various comments on it from a book on DNA Technology in Administration of Justice, written by Jyotirmoy Adhikari published in 2007. However, the three Judges Bench of the Supreme Court precisely held as follows: " (1) A matrimonial court has the power to order a person to undergo medical test. (2) Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution. (3) However, the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him. " 10. According to us, personal liberty as prescribed under Article 21 of the Constitution of India can not be confined to one when personal liberty of two others inclusive of a minor child is at stake. They have their right to know their parental and birth right and if in spite of having scientific mechanism available for the purpose, it is refused, the same will lead to illegality. They have their right to know their parental and birth right and if in spite of having scientific mechanism available for the purpose, it is refused, the same will lead to illegality. Law is to be moved forward to meet the necessity of the modern society taking advantage of scientific mechanism without shutting eyes. It is not only a question of predominance effect of welfare of the child but it leans in favour of an innocent child from being bastardised. Therefore, in association with the ratio propounded by the Supreme Court in Sharda (supra) and 2005 (4) SCC 449 [banarsi Dass Vs. Teeku Dutta (Mrs) and another) we can only say that the present case before us is an exception to the exception where the mother claims herself to be a prostitute rather to be a mother and tried to refuse relationship between the father and the child. 11. Despite that, but to avoid any controversy we have called upon the parties to know whether they have any objection in sending the matter for DNA test, which is a scientific proof of paternity disputes, when both of them agreed and have given their consent. Even we have particularly cautioned the girl (appellant/opposite party no. 1) by saying that if her statement proves to be false, she may be sent to jail, yet she did accept the proposal. On the other hand, the respondent/applicant in answer to the question of the Court said that he is ready and willing to take back both the girl (appellant/opposite party no. 1) as well as child. In reply to a question of the Court, he has specifically answered that he is ready and willing to accept the child because of the reason that his wife is living in a red-light area in the city of Kolkata where the future of the child will be spoiled; he is also ready and willing to take his wife if she wants to come back; but welfare of the child is predominant and in the society where his wife is staying, there will be no welfare of the child. He further said that he is hundred percent sure that the child belongs to him and no fault or concealment of facts are there on his part. He further said that he is hundred percent sure that the child belongs to him and no fault or concealment of facts are there on his part. Against this background, the following orders were passed by this Court on 26th September, 2008, 05th November, 2008, 03rd December, 2008, 16th December, 2008 and 04th February, 2009: "today we have called upon both, the husband and the wife, as well as child to examine them for two reasons i. e. (i) to have their consent for D. N. A. test; and (ii) to get any answer from the child, which is the paramount consideration for the cause. In answer to question No. (ii) we find that the child is aged about 2 years and is not able to understand the position to give any answer in the Court. So far as the question No. (i) is concerned, both the boy and the girl have given their consent for D. N. A. test of themselves and of the child, which will be done either by the Board of Doctors or by a Doctor singly, as far as practicable, but at a time one after another, so that the chance of changing the report, if any, can be removed. Cost and expenditure of such test will be provided by the respective contesting parties. We are not aware which institute will be appropriate for such test. It will be ascertained through the Principal Secretary Health of the State whether any such mechanism is available in the State or at Delhi or at Hyderabad, about which one of the parties has indicated. Steps will be taken immediately without any delay, so that the report can be brought before the Court on 05th November, 2008 when the matter is again fixed for further hearing. The report, which will be prepared by the appropriate authority, will be produced before this Court through the Principal Secretary Health of the State of U. P. under the sealed cover. For all practical purposes a copy of this order will be given to the learned Additional Advocate General/learned Chief Standing Counsel free of cost. Dt. /-26. 09. 2008. The report, which will be prepared by the appropriate authority, will be produced before this Court through the Principal Secretary Health of the State of U. P. under the sealed cover. For all practical purposes a copy of this order will be given to the learned Additional Advocate General/learned Chief Standing Counsel free of cost. Dt. /-26. 09. 2008. " "we have been informed by Sri Ramanand Pandey, learned Standing Counsel, that samples of blood for the purpose of D. N. A. test of boy, girl and child have been taken and sent to the appropriate centre at Hyderabad i. e. CDFD, Centre for DNA Fingerprinting and Diagnostics, Nacharam, Hyderabad, Andhra Pradesh on 31st October, 2008 for necessary purpose. Mr. Pandey contended that as per their telephonic discussion the test will take 6-8 weeks time. Generally it might be, but when the matter is subjudice before the Court for the purpose of early disposal, it will be given utmost importance for the purpose of having the report by 03rd December, 2008 when the matter will once again appear in the list. The entire report will be produced before this Court under the sealed cover positively on the next date. A copy of the order will also be sent to the CDFD, Centre for DNA Fingerprinting and Diagnostics, Nacharam, Hyderabad, Andhra Pradesh. All the copies of the communications as produced by the learned Standing Counsel be kept with the record. A copy of this order be given to Sri Ramanand Pandey, learned Standing Counsel, free of cost. Dt. /-05. 11. 2008. " [apart from the States recommendation about the aforesaid institute for conducting DNA test, we have also gathered information regarding said institute in a recent book i. e. DNA Tests in Criminal Investigation, Trial and Paternity Disputes (Justice through science), written by Yashpal Singh and Mohd. Hasan Zaidi published in 2006. ] "d. N. A. test report has been produced before this Court in the sealed cover by Sri Ramanand Pandey, learned Standing Counsel. Sealed cover has been opened. We find from the report that blood sample of the girl child is matching with the blood samples of both the boy and the girl, contesting parties herein. Learned Counsel for the parties were directed to examine the report in the Court, which they did. Sealed cover has been opened. We find from the report that blood sample of the girl child is matching with the blood samples of both the boy and the girl, contesting parties herein. Learned Counsel for the parties were directed to examine the report in the Court, which they did. The report is directed to be kept in the sealed cover along with the record in the safe custody of the officer of the Court. We direct the learned Counsel appearing for the parties to intimate the appellant-girl with her daughter and also the respondent-boy to be personally present before this Court on 16th December, 2008 at 02. 00 P. M. or so soon thereafter as and when the matter is directed to be taken up. Learned counsel appearing for the parties also assured for their presence on the next date. Dt. /-03. 12. 2008. " "both the boy and the girl with the child are personally present before this Court as per earlier direction. Both the learned counsel submitted before this Court that they have explained the position of scientific test i. e. DNA Test and what is the outcome of the test. Now the scope of the appeal is very much limited. Either it has to be settled or if any argument is open, that can be made. We cannot deny the welfare of the child which is the paramount consideration particularly in view of the submissions as made by the girl and observed by the Court below and this Court. However, if the good sense prevails upon the parties particularly the girl, there should be a settlement and the learned counsel appearing for the girl has submitted before this Court that he will try his level best so that the family can unity. However, the present scenario is such that there is no scope open for the purpose of further argument and hence for the early disposal, we wanted to keep the matter on Thursday i. e. 18th Dec. , 2008 at 2 p. m. But since the learned counsel appearing for the appellant wants some time for all practical purposes inclusive of settlement, if any, he prayed that the matter should be placed, if possible, on the reopening day of the Court. , 2008 at 2 p. m. But since the learned counsel appearing for the appellant wants some time for all practical purposes inclusive of settlement, if any, he prayed that the matter should be placed, if possible, on the reopening day of the Court. It is not possible for the Court to fix the matter immediately after the vacation due to paucity of time, therefore, we are of the view that the matter should be fixed on 4th February, 2009 for the purpose of further hearing. Personal presence of both the boy and the girl is dispensed with but on the next date, i. e. 4th February, 2009 they will remain present. Dt. 16. 12. 2008. " "today this Bench is specially formed, even breaking the Benches at Lucknow as well as at Allahabad, for the purpose of finalisation of issue with regard to delivery of custody of the child on the basis of the D. N. A. test report and hearing. Mr. Rahul Chaudhary, learned Advocate, led by Mr. Anil Kumar Bajpai appeared on behalf of the appellants when Mr. A. B. L. Gaur, learned Senior Advocate, assisted by Dr. Akhilesh Kumar Sharma and Mr. Shishupal Sharma, learned Advocates, appeared for the respondent. We have also called upon Mr. Ramanand Pandey, learned Standing Counsel, for the purpose of assisting the Court to have the D. N. A. test report. In spite of all efforts having been made, today neither girl is present before the Court with the child nor understood the rigour but hoped for sympathy, which is now misplaced. However, even without consent of the earlier appearing counsel, as above, Mr. Yogesh Agarwal, learned Advocate, assisted by Mr. R. K. Dubey appeared on behalf of the appellants by filing a separate Vakalatnama that too without obtaining any formal change from the erstwhile Counsel and contended before this Court that the girl is ill. In support of his contention Mr. Dubey wanted to submit a medical certificate. On the other hand, Mr. Gaur has submitted before this Court that few days back the boy has received telephone call from the girls side refusing to handover the child and she also said that she will not come to this Court on the next date. In support of his contention Mr. Dubey wanted to submit a medical certificate. On the other hand, Mr. Gaur has submitted before this Court that few days back the boy has received telephone call from the girls side refusing to handover the child and she also said that she will not come to this Court on the next date. She also wanted to involve local police at Agra to interfere with the cause taking the name of harassment but without disclosing the fact that the matter is subjudice before this Court. According to us, filing of Vakalatnama and printing of name of another Advocate appears to be an act of manipulation particularly when the Advocates are already appearing before this Court. Against this background, only for the purpose of fulfilment of audi alteram partem the matter is again placed on 20th March, 2009 (Friday) under the heading for further hearing. Senior Superintendent of Police, Agra, Uttar Pradesh is directed to ensure presence of the girl along with the child before this Court on that very date. Appropriate police personnels of local police at Allahabad will also be present outside the Court for the purpose of necessity. We have made it clear that if we find that no further hearing will serve the purpose, the hearing will be concluded very soon and the judgement will be delivered on that very day itself for the purpose of finalisation of the cause. No leniency will be given to the girl because she has not shown any respect to the Court till this date and in case of violation of any order/direction as indicated above, we shall be compelled to take a drastic action against her. It is recorded hereunder that the boy is present. His personal appearance is dispensed with but he will be once again present before this Court on the next date i. e. on 20th March, 2009. Let a copy of this order be given to Mr. Ramanand Pandey, learned Standing Counsel, free of cost to inform the Senior Superintendent of Police, Agra and Senior Superintendent of Police, Allahabad for taking appropriate steps. Dt. /-04. 02. 2009. " The aforesaid orders have been quoted for two reasons. One for the purpose of DNA test report dated 24th November, 2008, which has been produced by the learned Standing Counsel of the State. Dt. /-04. 02. 2009. " The aforesaid orders have been quoted for two reasons. One for the purpose of DNA test report dated 24th November, 2008, which has been produced by the learned Standing Counsel of the State. Such DNA Test report gives following results: "dna TYPING EVIDENCE FOR ESTABLISHING PATERNITY 24th November 2008 ------------------------------------------------------------------------------------ 0 The Chief Medical Officer District Hospital AGRA Uttar Pradesh State Sub:- Submission of DNA typing report in First Appeal No. 372/2008 on the file of Honble High Court, Allahabad- Regarding. CDFD File No. 2113 DNA typing report No. CDFD/ldfs/2008-2113 DESCRIPTION OF SOURCE Name of the source Received/collected on Exhibit 1 Exhibit No. Blood sample said to be of Smt Mamta Singh Identification form No. 1 31. 10. 2008 A X201 B1 Blood sample said to be of Kum Sneha Identification form No. 2 31. 10. 2008 B X201 B2 Blood sample said to be of Shri Kamal Kant Gautam Identification form No. 3 2 31. 10. 2008 C X201 B3 Stained gauze cloth said to be bloodstains of Smt Mamta Singh 31. 10. 2008 D X201 BS1 Stained gauze cloth said to be bloodstains of Kum Sneha 31. 10. 2008 E X201 BS2 Stained gauze cloth said to be bloodstains of Shri Kamal Kant Gautam 3 31. 10. 2008 F X201 BS3 DNA was extracted from the sources of exhibits A, B and C. The sources of exhibits D, E and F are said to be from the same sources of exhibits A, B and C respectively. Therefore, the sources of exhibits D, E and F were not subjected to DNA extraction. Microsatellite loci using Ampf/str (R) Identifiler (R) PCR Amplification kit were used for DNA profiling of the samples. DNA profiles were prepared and analysis was carried out using Genescan (R) and Genotyper (R) softwares. RESULT OF EXAMINATION The DNA profile of the source of exhibit B (blood sample said to be of Kum Sneha) matches with the DNA profile of the sources of exhibit A (blood sample said to be of Smt Mamta Singh) and exhibit C (blood sample said to be of Shri Kamal Kant Gautam ). RESULT OF EXAMINATION The DNA profile of the source of exhibit B (blood sample said to be of Kum Sneha) matches with the DNA profile of the sources of exhibit A (blood sample said to be of Smt Mamta Singh) and exhibit C (blood sample said to be of Shri Kamal Kant Gautam ). The maternal and paternal alleles present in the DNA profile of the source of exhibit B are accounted in the DNA profiles of the sources of exhibits A and C. CONCLUSION The DNA test performed on the exhibits provided is sufficient to conclude that the source of exhibit C (Shri Kamal Kant Gautam) is the biological father of the source of exhibit B (Kum Sneha ). The source of exhibit A (Smt Mamta Singh) is the biological mother of the source of exhibit B (Kum Sneha ). Sd. /- Illegible Technical Examiner ENCLOSURES Seal 1) Table-1. D S NEGI 2) Figures-1 (A), 1 (B), 1 (C) and 1 (D ). Technical Examiner 3) Identification forms-1, 2 and 3. Laboratory of DNA Fingerprinting Services Centre for DNA Fingerprinting and Diagnostics (DBT, Ministry of Science and Technology, Govt. of India) Nacharam, Hyderabad-500 076. India" 12. Secondly, the appellant/opposite party no. 1 did not attend the Court on 04th February, 2009 and engaged second set of Counsel i. e. Mr. Yogesh Agarwal, assisted by M. R. K. Dubey, by filing separate Vakalatnama in spite of appearance of Mr. Anil Kumar Bajpai and Mr. Rahul Chaudhary, learned Advocates, and absconded herself from the Court when the Court was compelled to direct the Senior Superintendent of Police, Agra to produce her on the next date and also directed the appropriate police personnel of local police of Allahabad district to be present outside the Court for the purpose of necessity. 13. Today, the respondent/applicant and the appellant/opposite party no. 1 along with the child are present before the Court. Mr. Yogesh Agarwal, learned Advocate, wanted to withdraw himself from his appearance saying that it was a mistake on his part but since erstwhile counsel Mr. Rahul Chaudhary was also present before the Court, we directed both of them to be present before the Court and to 5 make their submissions jointly, so that there should not be any technical plea to have been taken subsequently with regard to fulfilment of principle of audi alteram partem. Rahul Chaudhary was also present before the Court, we directed both of them to be present before the Court and to 5 make their submissions jointly, so that there should not be any technical plea to have been taken subsequently with regard to fulfilment of principle of audi alteram partem. However, it is needless to say that after all these chapters, Mr. Yogesh Agarwal said that he has nothing to say with regard to the case. Everybody was made known that unless any other proof is available to this Court, the Court is compelled to proceed on the basis of contentions of the parties, which have been advanced before this Court, and come to an appropriate finding. We find from the evidence, materials and arguments put forth before this Court that there is sufficient reason to believe that the child was born in their wedlock and, therefore, the paramount consideration is welfare of the child and it is correct to say that the childs welfare can not be protected if she is given in such a society, to which her mother belongs. If her mother separates herself from such society and lives with the respondent/applicant permanently, that will be for the benefit of the family as well as for the child but we can not compel them therefor in this proceeding. However, we can, at best, wish for their betterment. But so far as child is concerned, she will be definitely given in the custody of her father (respondent/applicant), who besides being financially sound is well educated and lives in a reputed society and he is able to protect the welfare of the child. 14. In 2000 (9) SCC 745 (Sumedha Nagpal Vs. State of Delhi and others) in dismissing the writ petition on the ground of alternative remedy the Supreme Court held that the lap of the 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 the Court has to bear in mind the welfare of the minor child and not decide such a question merely based upon the rights of the parties under the law. This issue has also been considered in detail by the Division Bench of this Court in the judgements reported in 2008 (4) ALJ 446 (Smt. Varsha Lakhmani Vs. This issue has also been considered in detail by the Division Bench of this Court in the judgements reported in 2008 (4) ALJ 446 (Smt. Varsha Lakhmani Vs. Hitesh Wadhva) and 2008 (4) ADJ 542 (DB) (Laxman Vs. Smt. Savita Devi and another ). 15. Therefore, we end the chapter with the phrase that fact is greater than fiction. 16. Considering all pros and cons of the matter, ultimately today an order has been passed by this Court to handover the child in the custody of the respondent/applicant through the Registrar General of this Court today itself, which order dated 20th March, 2009 is available in the separate order-sheet of this case. Such order has been carried out. The police has prepared and submitted the report regarding handing over the custody of the child and the Registrar General of this Court has also submitted his independent compliance report. 17. The DNA test report dated 24th November, 2008, statements of the parties, report prepared by the police regarding handing over the custody of the child and the compliance report submitted by the Registrar General of this Court are directed to be kept in a sealed cover. Mr. Ramanand Pandey, learned Standing Counsel, is discharged from his independent role of assisting the Court with thanks. 6 18. Thus, the appeal is dismissed, however, without imposing any cost. Interim order, if any, stands vacated. (Justice Amitava Lala) I agree. (Justice Shishir Kumar) 7 .