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2017 DIGILAW 378 (UTT)

Sonal v. Deepak Khanna

2017-07-13

RAJIV SHARMA, SHARAD KUMAR SHARMA

body2017
JUDGMENT : Sharad Kumar Sharma, J. This is an appellant (wife's) appeal from order wherein she has challenged the order dated 16.08.2016 passed by the Additional Judge, Family Court, Roorkee, District Haridwar, the said Court while exercising powers under Section 10 read with Section 25 of the Guardians and Wards Act has rejected the application and thereby decline to grant the custody of the minor son Arav to the appellant. 2. The appellant has filed an application before the court below on 08.10.2016, wherein she has prayed for the custody of the minor child namely Arav. The plaint allegations are that as a consequence of the wedlock, son Arav was born, who at the time of institution of the proceedings under Section 10 read with Section 25 of the Guardians and Wards Act was of only 4 years of age. The appellant case is that she being the mother and natural guardian has a prime concern of well being of the child. The custody of the child with the respondent is not safe because the respondent is keeping the custody of the child forcefully and gives inhumanly treatment to him. 3. The marriage between the appellant and the respondent no. 1 was solemnized on 15.01.2011, and according to the appellant her father who is an employee of ONGC, had friendship with one Mr. Surender Khanna, who is the brother-in-law of Deepak Khanna (respondent no. 1 herein). Often now and then appellant used to visit Dehradun and consequently they developed affinity & love and the marriage was settled. At the time when the marriage was being settled it was projected by the respondent no. 1 that he has holding a degree of M.Com and MBA and is working in a Multi National Company and is earning a sum of Rs. 35,000/- per month. The sister of respondent no. 1 namely Babli and his brother-in-law Surender Khanna by deceitfully taking appellant into confidence making her belief about of educational status of respondent no. 1 laid down the conspiracy and got the marriage solemnized. 4. She came up with the case that immediately after couple of days after the marriage, she was being harassed by the in-laws including respondent no. 1 and they were raising a demand of Rs. 10.00 lakhs. In the application, she contended that Arav (respondent no. 1 laid down the conspiracy and got the marriage solemnized. 4. She came up with the case that immediately after couple of days after the marriage, she was being harassed by the in-laws including respondent no. 1 and they were raising a demand of Rs. 10.00 lakhs. In the application, she contended that Arav (respondent no. 2 herein) was born on 25.12.2011 and on account of cruelty and the continuous family feud which persisted since 2012-2013 the respondent no. 1 often used to beat respondent no. 2 due to which at times he has suffered injuries. Hence in the application she prayed for that the future of the child would be best safeguarded by the mother who is the natural guardian. Besides this, she has an independent source of earning coupled with the fact that the family surrounding of the respondent no. 1 is not conducive wherein the interest of the child could be safeguarded in the absence of there being care and attention paid to him. 5. This application was opposed by the respondent no. 1 by filing an objection. He made a vague denial to the grounds taken by the appellant for seeking custody of the child. However, the learned family court by the impugned order has rejected the application by its judgment dated 16.08.2016 hence the instant appeal. On a precise reading of the grounds taken in the objection by respondent no. 1 was two folds :- (i) That she i.e. the appellant by her application to the police officials had admitted her mistakes and; (ii) She assured not to repeat the same in future. 6. Besides this, she has also taken a ground that in collateral proceeding under the Domestic Violence Act, the application of the appellant for getting an interim custody of Arav has been rejected on 30.10.2016. The Criminal Case No. 15 of 2016, challenging the order dated 03.10.2016 under the Domestic Violence Act the court declined the custody under Section 23 and the same has been affirmed by the appellate court by dismissing the appeal. 7. On reading of the objection, it is apparent that without alleging about the veracity of the application or the objection, the respondent no. 1 had tried to attract the impact of the judgment passed in the proceeding under Section 23 of the Domestic Violence Act. 7. On reading of the objection, it is apparent that without alleging about the veracity of the application or the objection, the respondent no. 1 had tried to attract the impact of the judgment passed in the proceeding under Section 23 of the Domestic Violence Act. According to the respondent, the affect of the Domestic Violence Act proceedings will be that it would override the proceedings under the Guardians and Wards Act. He pleads that the denial of custody under Section 23 of the Domestic Violence Act would automatically ought to have resulted into rejection of the application under Section 25 of the Guardians and Wards Act. 8. It is this contention which has been taken into consideration by the court below while rejecting the application filed by the mother (appellant herein) by the impugned order dated 16.08.2016. The judgment impugned cannot be sustained for the following reasons:- (i) The legislature in its wisdom has framed two independent Acts i.e. Guardians and Wards Act, 1980 and Protection of Women from Domestic Violence Act, 2005. These two legislatures have got a different object to be achieved. Since the purpose and intention of the two legislatures being different in accordance with the respective SORs, they will not in any manner override the proceedings provided under either of the Acts. (ii) Under Protection of Women from Domestic Violence Act, 2005, the prime concern is to have a effective protection of the rights of the women as guaranteed under the Constitution to protect her victimization from the violence occurring within the family, while on the other hand under the Guardians and Wards Act, it intends to impart responsibility on the courts to ensure the protect the welfare of the child which is of prime consideration for the courts while they considering the application under Section 25. (iii) The intention of Section 23 under the Domestic Violence Act, it only intends to provide custody of the child only when there is proceeding pending under the Act. This measure is only contemplated as an interim measure only and this is subject to the commission of Domestic Violence. (iii) The intention of Section 23 under the Domestic Violence Act, it only intends to provide custody of the child only when there is proceeding pending under the Act. This measure is only contemplated as an interim measure only and this is subject to the commission of Domestic Violence. While on the other hand, Section 25 of the Guardians and Wards Act is not a situation contemplating an interim custody rather it only intends to take away a ward from the custody of either of the spouse or the guardian and taking into consideration the welfare of the child return it to the custody with whom the courts feels to be in the interest of the child. Thus, the purpose is entirely different. (iv) At the time when the impugned order was passed as a matter of fact there was no order existing under Section 23 of the Domestic Violence Act merely because of pendency of application under Section 23 will not in it self lead to a conclusion of suspending the orders to be passed on the application under Section 25 of the Guardians and Wards Act. Because in the objection taken by the respondent, its only to the effect that for an identical relief, the application under Section 23 is pending. Hence this reasoning assigned by the court below, the order is not sustainable. 9. When the case was taken up today i.e. on 30.06.2017 the parties to the appeal (excluding respondent no. 2) appeared before the Court in person and they were granted permission by the Court to place their own versions. Apart from this, also hard the respective counsels. 10. In the presence of the counsels, the appellant submitted that she is working with a company called as Cox & Kings and she is earning a sum of Rs. 30,000/- per month. On being placed with the identical question to the husband as to how he is subsisting himself, he informed that he is taking private tuitions and is earning a sum of Rs. 30,000/- but there was no proof attached to it to show the earnings. Thus the specific statement of the appellant that she is engaged with Cox & Kings Company is to be accepted as against the statement of the respondent that he is taking private tuition which cannot be established by any evidence. 30,000/- but there was no proof attached to it to show the earnings. Thus the specific statement of the appellant that she is engaged with Cox & Kings Company is to be accepted as against the statement of the respondent that he is taking private tuition which cannot be established by any evidence. On being asked as to whether he is filing his income tax return, he gave an evasive answer with no specific assertion about the remittance of income tax and filing of returns. 11. As already observed above, the pendency of application under Section 23 under the Domestic Violence Act cannot create an embargo for consideration the application under Section 25 of the Guardians and Wards Act, hence the reason assigned is absolutely untenable. Learned counsel for the respondent has placed reliance on annexure 3 to the counter affidavit on the basis of which he contends it to be a complaint submitted by the appellant before the SHO, Kotwali, Bulandsehar, Uttarpradesh, he places reliance on the said letter on the ground that the said letter projects an admission made by the appellant to the atrocities caused by her to the family of the respondent no. 1, where she has expressed her anguish and has shown her willingness to live together. No reliance can be placed on the same for the reason this is the letter which has been sent to the Superintendent of Police through a speed post which could be sent by any person under the name of anyone so it cannot be said that the letter was sent by the appellant as it bears no endorsement of receipt. 12. Apart from it, the signatures appearing at the bottom of the page seems to be interpolated the reason being that there exists no signature at the place 'bhavdeya' it was interpolated as signatures finds placed at a different part of the complaint. Apart from it, the said complaint does not bear any endorsement of receipt by the Superintendent of Police, Bulandsehar, UP. 13. The view taken by the court below that since the child has lived for one year with the respondent no. 1 in itself would not be sufficient to deny the custody of a minor child who needs care and affection of both the parents but the level of care and affection of which a child expects is more important that of anyone else. 14. 1 in itself would not be sufficient to deny the custody of a minor child who needs care and affection of both the parents but the level of care and affection of which a child expects is more important that of anyone else. 14. The finding pertaining to the allegations and counter allegations by the appellant and respondent no. 1 is not an issue is to be decided or taken into consideration while deciding the application under Section 25 of the Guardians and Wards Act. Thus we feel that the impugned order dated 16.08.2016 is absolutely perverse and without application of mind and contrary to the records and based on the fact which do not fall within the ambit of Section 25. Thus the order dated 16.08.2016 deserves to be quashed. 15. The application paper no. 6A filed by the appellant is allowed, the interim custody of minor Arav is granted to the appellant who being the mother would be best guardian of the minor, till the proceedings under Section 25 is finally decided. However, looking to the emotional affinity of the father he is granted visiting nights to meet the child from 2 pm to 4 pm in court premises on each date fixed by the court below. 16. This court further feels to be appropriate to request the court below to decide the main proceedings under Section 10 read with Section 25 of Guardians and Wards Act without granting unnecessary adjournments, preferably within a period of 4 months from service of certified copy of the order. 17. Registry is directed to send the copy of this order to the court below for necessary compliance and ensuring safety of child during visiting hours as granted above. 18. Appeal stands allowed subject to above observations.