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2013 DIGILAW 906 (PAT)

Surendra Singh @ Surendra Kumar Singh v. Reema Singh @ Reema Devi

2013-07-31

CHAKRADHARI SHARAN SINGH

body2013
ORDER The facts of this case are disturbing. 2. As would transpire from the pleadings of the parties and submissions made on their behalf in course of hearing of this case, Respondent No.1 Reema Singh alias Reema Devi was married to Kamaljeet Singh, son of the petitioner Surendra Singh alias Surendra Kumar Singh in the year 1999. A son Karanjeet Singh and daughter Kriti Singh were born out of the said welock. Karanjeet studies in Std.-VI, whereas Kriti in Std.-V. They are aged about 13 years and 11 years respectively. 3. Kamaljeet, husband of respondent no.1 suffered brain hemorrhage on 6.11.2010. He was subsequently admitted in a Hospital at Durgapur, West Bengal. He was released from the Hospital on 22.11.2010. It has been stated at the bar that Kamaljeet is completely bed-ridden and cannot move even for his daily rites/ obligations because of his infirmity. 4. Respondent no.1 has filed an First Information Report with Ara Muffasial Police Station vide Ara Muffasial P.s. case No. 266 of 2010 under Section 498A of the Indian Penal Code and Sections ¾ of the Dowry Prohibition Act against this petitioner, who is father of Kamaljeet, the husband of respondent no.1. Other members of the family are also accused in the said criminal case, of course, except the husband of respondent no.1, Kamaljeet. A divorce petition has been instituted by or on behalf of said Kamaljeet before the Principal Judge, Family Court, Bhojpur at Ara for dissolution of marriage between him and Respondent no.1. 5. The allegation in the criminal case instituted by respondent no.1 is that this petitioner demanded five lacs. for treatment of husband of respondent no.1 and as the demand could not be met she had been physically and mentally tortured and harassed. 6. This Court is not concerned with the merits of the allegations in the criminal case instituted for the offence under Section 498A of the Indian Penal Code and ¾ of the Dowry Prohibition Act by respondent no.1 nor with the divorce case instituted by Kamaljeet, husband of respondent no.1 and son of the petitioner. Case before this Court is with respect to the guardianship/custody of minor children Karanjeet and Kriti. Guardianship case no. 3 of 2011 has been filed by the petitioner who is the grandfather of the two children and father of Kamaljeet. 7. Case before this Court is with respect to the guardianship/custody of minor children Karanjeet and Kriti. Guardianship case no. 3 of 2011 has been filed by the petitioner who is the grandfather of the two children and father of Kamaljeet. 7. Before I advert to the circumstance which necessitated the petitioner to approach this Court under Article 227 of the Constitution of India, this is to be noted that respondent no.1 does not have any source of income at all. She is neither gainfully employed nor she is engaged in any profitable avocation/profession or business. Father of the children i.e. Kamaljeet, as has been noted above, himself requires care and attention and by no means he can support these two children. He is completely infirm. 8. In the present application under Article 227 of the Constitution of India, impugned is an order dated 15.6.2012 passed by learned Principal Judge, Family Court, Ara at Bhojpur, whereby the Court below has refused to modify an earlier order dated 25.4.2011. By the order dated 25.4.2011, on an undertaking given by the petitioner, the petitioner was directed to keep along with him his daughter-in-law, respondent no.1 and his grandson Karanjeet. The said order dated 25.4.2011 was passed by the learned Principal Judge, Family Court, Ara as Karanjeet had expressed his readiness to live with his father, mother and grandfather at Asansole where he is pursuing his studies at D.A.V. School, Asansole. It further appears that respondent no.1 had agreed to withdraw the criminal case in the given circumstance. Subsequently, the petitioner filed an application before the learned Principal Judge, Family Court, Ara seeking modification of the order dated 25.4.2011 to the effect that he was not possible for him to keep respondent no.1 at his place as his son Kamaljeet had expressed his unwillingness that his wife respondent no.1 should come to stay there at Asansole in the family. The Court below, however, rejected the application by the impugned order dated 15.6.2012 leading to institution of the present case. 9. As in course of hearing the Court felt the necessity to have the view of the children first before passing any order in peculiar facts and circumstances of the case, vide order dated 23.7.2013 the petitioner was directed to produce them on 29.7.2013 and accordingly, they were produced before me in my Chambers on 29.7.2013. 10. 9. As in course of hearing the Court felt the necessity to have the view of the children first before passing any order in peculiar facts and circumstances of the case, vide order dated 23.7.2013 the petitioner was directed to produce them on 29.7.2013 and accordingly, they were produced before me in my Chambers on 29.7.2013. 10. The children were given ample opportunity to interact with me freely in seclusion. They flatly refused to have the company of their mother. They refused even to meet her once in the Chambers. I noticed that they were growing properly and were sensible enough and sensitive to situation around them. 11. In a situation, where both the parents either out of their physical in ability or financial crunch, independently or jointly cannot maintain their children, the question which the Court is required to decide is as to whether such parents can claim custody and guardianship of minor children in their capacity as natural guardian or a Court may keeping in mind the welfare of the minor children appoint someone else as guardian of the minor children. 12. This is to be noted that the petitioner who is grandfather of minor children is serving employee under the Central Government. The grandmother is also alive. I had the occasion to interact with them also. They expressed willingness to have the custody of the children and maintained them. 13. Mr. Subodh Kumar Jha, learned counsel appearing on behalf of respondent no.1 vehemently submitted that the petitioner being grandfather of the children is not entitled to have their custody in view of section 6 of the Hindu Minority and Guardianship Act, 1956. He submits that during the life time of the parents the custody of the minor children cannot be given to any other person if both or one of the parents claimed custody. He further submits that the petitioner had given an undertaking that he would be maintaining respondent no.1, his daughter-in-law and keeping her with honour and full dignity at the place where he and husband of respondent no.1 reside in Asansole. He further submits that respondent no.1 is willing to serve her husband, who is virtually on death bed. 14. He further submits that the petitioner had given an undertaking that he would be maintaining respondent no.1, his daughter-in-law and keeping her with honour and full dignity at the place where he and husband of respondent no.1 reside in Asansole. He further submits that respondent no.1 is willing to serve her husband, who is virtually on death bed. 14. At the first place, I am of the view that in the given situation where petitioner no.1 and family members are facing criminal case lodged by respondent no.1 and the minor children are unwilling to have the company of their mother for reasons whatsoever, no direction should be issued compelling petitioner to keep respondent no.1 at his house at Asansole where the minor children and their ailing father Kamaljeet reside. The order impugned is set aside to that extent. 15. So far as the custody of minor children is concerned, there appears to be no much controversy; firstly for the reason that respondent no.1 has not filed any such petition nor has claimed custody in any other manner. As has been noted above, she does not have any independent source of income and therefore, I find that she is not in a position to maintain her children independently. 16. Presently the minor children are at Asansole living with their grandfather, petitioner. They are studying in a Public School. They are being looked after by their grandparents and appeared to be growing in healthy atmosphere. In such circumstance, I am of the view that the interest and welfare of the minor children are being looked after properly. 17. Section 13 of the Hindu Minority and Guardianship Act, 1956 provides that in the appointment or declaration of any person as a guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration. It further provides that no person shall be entitled to the guardianship by virtue of provisions of this Act if the Court is of the opinion that his or her guardianship will not be for the welfare of the minor. 18. The Supreme Court in a recent judgment reported in AIR 2013 SC 102 (Gaytri Bajaj Vs. It further provides that no person shall be entitled to the guardianship by virtue of provisions of this Act if the Court is of the opinion that his or her guardianship will not be for the welfare of the minor. 18. The Supreme Court in a recent judgment reported in AIR 2013 SC 102 (Gaytri Bajaj Vs. Jiten Bhalla) has held, in tune with Section 13 of the Hindu Minority and Guardianship Act, 1956 that an order of custody of minor children requires to be made treating the interest and welfare of the minor to be of paramount importance. The Supreme Court held in paragraph 14 that it is not the better right of the either parent that would require adjudication while deciding their entitlement to their custody. The Apex Court further held that desire of child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the concerned parent to take care of the child are some of the relevant factors which are to be taken into consideration. Said paragraph 14 is being quoted hereinbelow for quick reference:– “14. From the above it follows that an order of custody of minor children either under the provisions of the Guardians and Wards Act, 1890 or Hindu Minority and Guardianship Act, 1956 is required to be made by the Court treating the interest and welfare of the minor to be of paramount importance. It is not the better right of the either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the concerned parent to take care of the child are some of the relevant factors that have to be taken into account by the Court while deciding the issue of custody of a minor. What must be emphasized is that while all other factors are undoubtedly relevant, it is the desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the Court.” 19. In the case of Gaytri Bajaj Vs. Jiten Bhalla (supra) also the children had expressed reluctance to go with their mother even for a short duration. 20. In the case of Gaytri Bajaj Vs. Jiten Bhalla (supra) also the children had expressed reluctance to go with their mother even for a short duration. 20. In view of the facts and circumstances of the case, I direct that the two children shall remain in custody of their grandfather, petitioner no.1. The children will be produced before the Court below again after one year so that the Court may have their view before adjudicating upon the dispute in the said case. With this direction and observation this application is allowed.