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2014 DIGILAW 1721 (PNJ)

Veer Bhan v. Santosh

2014-12-11

AJAY KUMAR MITTAL, SNEH PRASHAR

body2014
Sneh Prashar, J. 1. Veer Bhan, petitioner-appellant (hereinafter to be referred as "the appellant") assails the judgment dated 13.12.2013 passed by learned Additional Civil Judge (Senior Division) exercising the powers of Guardian Judge, Tohana, District Fatehabad, vide which his petition No. GW/8 of 2013 dated 08.06.2012 claiming custody of his minor granddaughter from respondents Santosh and Suresh (hereinafter to be referred as "the respondents"), was dismissed. Precisely the facts garnered from the record are as under:- Vicky, son of appellant-Veer Bhan, was married to Jyoti, daughter of respondents-Santosh and Suresh Kumar, on 25.03.2007 at Jakhal as per Hindu rites and ceremonies. From their wedlock, a daughter, namely, Khushi was born on 26.12.2009. Due to some temperamental differences the couple could not live together. Jyoti left the matrimonial home alongwith the daughter and started residing with her parents at Jakhal. She got registered a case under Sections 406, 498-Aand 506 of the Indian Penal Code (in short "I.P.C.") at Police Station Jakhal vide First Information Report No. 110 dated 16.06.2011 against her husband Vicky and parents-in-law (petitioner and his wife Rani). Unfortunately, Jyoti died on 10.06.2011 and Vicky expired on 23.12.2011. The minor daughter of Jyoti and Vicky remained in the custody of her maternal grandparents-respondents. 2. Filing the instant petition for custody of the minor granddaughter, appellant Veer Bhan alleged that the interest and future of the minor was not safe in the hands of the respondents as the atmosphere at their house was not good and peaceful. They were also being rude and negligent and were misusing her custody. On the other hand, the minor was his (appellant's) legal heir and he also had sufficient means to provide shelter, good education and congenial environment to her. 3. The petition was contested by the respondents. They raised legal objections with regard to maintainability of the petition; estoppel; and concealment of true and material facts by the appellant. They pleaded that their daughter Jyoti, after being given severe beatings for non-fulfillment of their illegal demand for dowry, was thrown out of her matrimonial home by the appellant, his wife Rani and son Vicky. Because of the maltreatment, she fell ill and her life could not be saved. They pleaded that their daughter Jyoti, after being given severe beatings for non-fulfillment of their illegal demand for dowry, was thrown out of her matrimonial home by the appellant, his wife Rani and son Vicky. Because of the maltreatment, she fell ill and her life could not be saved. After the death of Jyoti and her husband Vicky, Rani wife of the appellant applied for compensation under 'Rajiv Parivar Bima Yozana' filing an affidavit that she was the sole legal heir of her son Vicky and the amount of compensation was disbursed to her. On 14.06.2012, it was brought to the notice of Sub Divisional Magistrate, Tohana that Vicky was survived by a daughter. The matter was got investigated and it was found that Rani had misused the scheme. On the warning of the authorities, Rani purchased a Fixed Deposit Receipt in the name of minor Khushi of the amount disbursed to her and herself became nominee of the minor. It is only with intention to grab the said amount that the appellant had filed the petition for taking custody of the minor. Submitting that the minor was being maintained well by them after the death of her mother Jyoti and they had no adverse interest against her, the respondents sought dismissal of the petition. 4. On the pleadings of the parties, following issues were framed:- (1) Whether the petitioner is entitled to take the custody of minor Khushi who is granddaughter of petitioner from respondents on the grounds mentioned in the petition? OPP. (2) Whether the petition is not maintainable? OPR. (3) Whether the petitioner is estopped from his own act and conduct from filing the present petition? OPR. (4) Whether the petitioner has not come to the Court with clean hands? OPP (5) Relief. 5. Both the parties adduced evidence in support of their respective contentions. 6. Considering the evidence and arguments addressed on behalf of the parties, learned trial Court arrived at the conclusion that the appellant is not entitled to take custody of the minor granddaughter and dismissed the petition. 7. Feeling aggrieved by the judgment dated 13.12.2013, the appellant has preferred the instant appeal. 8. Heard the submissions made by Mr. Mohan Lal Singla, learned counsel for the appellant. 9. The parties are not at issue as far as the facts are concerned. 7. Feeling aggrieved by the judgment dated 13.12.2013, the appellant has preferred the instant appeal. 8. Heard the submissions made by Mr. Mohan Lal Singla, learned counsel for the appellant. 9. The parties are not at issue as far as the facts are concerned. It was mentioned by the appellant himself in his pleadings that their son Vicky and daughter-in-law Jyoti had some marital dispute because of which Jyoti left the matrimonial home alongwith her minor daughter and started residing at her parental home. He also mentioned that a criminal case bearing First Information Report No. 110 dated 16.06.2011 under Sections 406, 498-A and506 of I.P.C. was got registered by Jyoti against him (appellant), his wife Rani and son Vicky. Also admittedly ever since the death of Jyoti on 10.06.2011, her minor daughter Khushi was residing with her maternal grandparents (respondents). There was yet another important factum which the appellant admitted when he stepped into the witness box as P.W. 1 i.e. his wife Rani had declared herself to be the sole legal heir of Vicky (since deceased) for obtaining the compensation amount of ` 1 lac under the 'Rajiv Parivar Bima Yozana'. He further admitted that subsequently on the direction of Sub Divisional Magistrate, Tohana, they deposited the amount of ` 1 lac in a Fixed Deposit Receipt in the name of minor Khushi. 10. Respondents examined D.W. 1 Naresh Kumar, District Social Welfare Officer, Fatehabad, who produced the relevant documents and testified that Rani had applied for the amount of ` 1 lac on account of death of her son, Vicky and the said amount was given to her through draft. Alongwith the application, she had annexed her affidavit Ex. D.W. 1/A wherein she alleged that Vicky had no child. He further deposed that subsequently Santosh wife of Suresh (respondent No. 1) gave a complaint Ex. D.W. 1/B to Sub Divisional Magistrate, Tohana. Both the respondents Santosh Devi and her husband Suresh Kumar appearing as D.W. 2 and D.W. 3 respectively reiterated and confirmed that when the fraud committed by Rani in obtaining the amount of ` 1 lac under 'Rajiv Parivar Bima Yozana' was unveiled in the inquiry held by Sub Divisional Magistrate, on the direction of the said authority the amount was deposited by Rani in the name of minor Khushi, naming herself as the nominee. 11. 11. Learned counsel for the appellant argued that keeping in view the welfare of the minor the instant petition for her custody was filed by the appellant. While the respondents do not have sufficient means to provide good education and congenial environment to the minor, Rani wife of the appellant is employed in St. Harry Public School, Tohana and as proved by P.W. 2, Accountant of the School, she is drawing a handsome salary. The appellant is also doing private work and earning in good five figures. Otherwise also, it is in the interest of the minor that she is brought up by the paternal grandparents because she is their legal heir. 12. We find absolutely no merit in the arguments of learned counsel for the appellant. The conduct of the appellant and his wife stood exposed from their affidavit given to obtain the amount of ` 1 lac under 'Rajiv Parivar Bima Yozana' after the death of their son wherein they mentioned that their son Vicky had no child and Rani was his sole legal heir. Had they any affection, care or good intention for their granddaughter, they would have never done so. The instant petition was filed by them immediately after they had to deposit the amount of ` 1 lac, obtained under the aforesaid scheme, in a fixed deposit in the name of minor Khushi. Apparently, the petition was filed because of their interest in the said money and not because of any love for the minor granddaughter. It is further worthwhile to note that appellant Veer Bhan during his statement admitted that some of his relatives are residing in Jakhal but he had never made any effort to know the well being of the minor through them. His said admission also shows the kind of affection or interest he had in the welfare of the child. In the above premises, finding no illegality or perversity in the findings of learned trial Court, the appeal is dismissed. C.M. No. 27634-CII of 2014 As discussed above, there is no merit in the appeal filed by the appellant. In addition to that, it is observed that the appeal was filed after 230 days of expiry of limitation period. In the above premises, finding no illegality or perversity in the findings of learned trial Court, the appeal is dismissed. C.M. No. 27634-CII of 2014 As discussed above, there is no merit in the appeal filed by the appellant. In addition to that, it is observed that the appeal was filed after 230 days of expiry of limitation period. What to say of explaining some sufficient cause, no reason worth consideration was mentioned by the appellant in his application filed under Section 5 of the Limitation Act for condonation of delay. Thus, there being no ground to condone the delay, the application is dismissed.