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2015 DIGILAW 303 (UTT)

Dinesh Kumar Tamta v. Kamla Shail

2015-06-16

UMESH CHANDRA DHYANI, V.K.BIST

body2015
JUDGMENT : 1. Present appeal has been filed by the appellant aggrieved against the judgment and order dated 04.04.2014 passed by the Judge, Family Court, Nainital (Camp Court Haldwani) in Misc. Civil Case No. 23 of 2012 "Smt. Kamla Shail v. Dinesh Kumar Tamta", whereby the appellant has been directed to handover the custody of his son to his natural guardian and mother within a month. It is the contention of the learned Senior Advocate for the appellant that the minor child is getting education, stood first, and has obtained 95 % marks in his last school result, which goes to show that he is getting better education and is being maintained well by the appellant-father. It is also the contention of the learned Senior Advocate for the appellant that the respondent-wife left her matrimonial home in the year 2009 and since then, their son is living with his father-appellant along with grandmother. The grandmother is very much affectionate with her grandson and so is the grandson towards his grandmother. The respondent has never cared for her child from the very inception and left the male child with the appellant in the year 2009. He was fed artificially by his grandmother since his birth. The son (Kartikey) is not interested in living with his mother. When he (son, Kartikey) was operated for a major surgery, the respondent never cared to attend him and even did not bother to go to the Hospital. He is 14 years old as of now (on the date appeal was filed i.e. 08.05.2014) and therefore, he cannot be compelled to go with his mother. Learned Senior Advocate for the appellant referred to the judgment of the Hon'ble Apex Court in the case of Gita Hariharan (Ms) and another v. Reserve Bank of India and another, reported in (1999) 2 SCC 228 : ( AIR 1999 SC 1149 ), and cited some of the provisions of the Hindu Minority and Guardianship Act, 1956 in support of his contention. 2. Appellant and respondent have one son and one daughter. The respondent is a Leeturer in a local College at Haldwani. The appellant is a Branch Manager in the District Cooperative Bank. The respondent left her matrimonial home on the pretext that she was physically and mentally harassed by her in-laws. 2. Appellant and respondent have one son and one daughter. The respondent is a Leeturer in a local College at Haldwani. The appellant is a Branch Manager in the District Cooperative Bank. The respondent left her matrimonial home on the pretext that she was physically and mentally harassed by her in-laws. She set the criminal law into motion against the appellant and others in a local Court at Haldwani. Allegedly, me respondent was ousted from her matrimonial home. At present, she is living at her parental home with her daughter since 18.10.2009. 3. It is the contention of the learned counsel for the respondent that since the respondent is a Teacher, therefore, she is always interested in wellbeing of her children. The grandmother of the ward (Kartikey) is unable to look after the ward. The appellant embezzled money from the bank, was arrested and since then, he is in-judicial detention. It is the contention of the learned counsel for the respondent that the respondent is getting approximately Rs. 30,000/- per month, as carry home salary. 4. In the case of Nil Ratan Kundu and another v. Abhijit Kundu, reported in (2008) 9 SCC 413 : (AIR 2009 SC (Supp) 732), the Hon'ble Supreme Court has held that it is the welfare of the child, which is of paramount consideration and not statutory rights of parents. Statutes and statutory rights are although relevant, but me interpretation of statutory provisions cannot be made sole basis of decision in such cases. The problem has to be solved with a human touch. In dealing with such cases, the Court is neither bound by statutes nor by strict rules of evidence or procedure. In selecting a guardian, the Court exercises parens patriae jurisdiction, and, therefore, it must give due weight age to child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings as well as physical comfort and moral values and at the same time, the Court must ascertain child's wishes. If the minor is old enough to form an intelligent preference, such preference must also be considered. Character of the proposed guardian also requires to be considered. Proper test to determine the suitability of the father to have the custody of the minor is the positive test of welfare of the minor and not the negative test that the father was not unfit or disqualified to have the custody. 5. Character of the proposed guardian also requires to be considered. Proper test to determine the suitability of the father to have the custody of the minor is the positive test of welfare of the minor and not the negative test that the father was not unfit or disqualified to have the custody. 5. In the instant case, there is no dispute that a case of embezzlement is pending against the appellant-father. He remained in jail and thereafter, released on bail. When the Court below gave verdict, he was in judicial confinement, but now, we have been told that he has been set free on bail. Yet, the fact remains that he has been charged for misappropriation of funds, which is a serious charge and if proved, it will amount to moral turpitude. In a value based society, like ours, should this Court shut its eyes and agree with the contention of the learned Senior Advocate for the appellant that the appellant has been falsely implicated in the case and he will be acquitted of the charge framed against him? Should this Court agree with the submission of the learned Senior Advocate for the appellant that a person cannot be deemed to be guilty till the charge is proved against him? Should the appellant be deemed to be innocent? In criminal jurisprudence, the above notions are reckoned with by all the Courts, but when it comes to a subject like custody of child, the parameters are different. Should this Court ignore the moral values and divide the affection of mother-father, sister-brother, as if, a ground work is being prepared for partition of a country like India and Pakistan, where social bonds are strong enough to challenge the political decision of the erstwhile Rulers to divide a strong united country into two on purely political considerations? The child is not a property or a commodity. Such issues should be handled with love, affection, sentiments on applying human touch to the problem. Should we say that, out of two children, one will remain with the father and another with the mother? Numerically, the division of two offspring, one with father and another with mother, may sound good, but should this Court ignore the love and affection, which a brother is having for his sister and vice versa? Can brother get the same emotional strength in the absence of his sister? Numerically, the division of two offspring, one with father and another with mother, may sound good, but should this Court ignore the love and affection, which a brother is having for his sister and vice versa? Can brother get the same emotional strength in the absence of his sister? Is the vice versa also justified? Why the brother and sister should not be permitted to live together, either with the mother or with father? Who has better entitlement in the instant case? 6. This Court is of the considered view that the respondent has better entitlement for the same. She is a Teacher, who knows how to educate her children. She is earning so much that she can feed both of her children. If both the children live together with their mother, that will inculcate moral values. Both will be getting brotherly and sisterly affection from each other. It goes without saying that the fact of detention of his father will have scars on the psyche of the son in school and in society. The son will be ridiculed or castigated-'Hey, he is a boy whose father is a criminal, who was or is in the jail for embezzlement of bank money'. The fact will still remain there, if the son lives with his mother, but then the factor of imprisonment of the father will fade into the oblivion, and then, the scars or the wounds would be healed, if not disappear, to a greater extent. 7. When we called the brother and sister in the Court, we could feel that the brother and sister were willing to live with each other, along with their parents. The couple was advised by this Court to shed their differences and live together. But when the parents were not ready to live together, what can be done? The brother and sister cannot be permitted to live separately. The children are old enough to form their intelligent preference and considering their preference, comfort, health, education, intellectual development, this Court has no option but to affirm the decision of the Court below. No interference, therefore, is called for in the judgment under challenge. The appeal is dismissed. Appeal Dismissed.