Research › Search › Judgment

Allahabad High Court · body

2020 DIGILAW 1028 (ALL)

Pawan Kumar Goyal v. Neetu

2020-07-13

AJAY BHANOT

body2020
JUDGMENT : 1. By the impugned order dated 14.01.2020 passed by the learned Principal Judge, Family Court, Hapur, the preliminary objection of the petitioner to the maintainability of the proceedings for custody of minor child Anni @ Awani, under Section 7/25 of the Guardianship and Wards Act, registered as Misc. Case No. 38 of 2019, Smt. Neetu Vs. Pawan, has been rejected. 2. The background facts are these. 3. The petitioner and the respondent had agreed to divorce, on mutually acceptable terms. 4. The learned Principal Judge, Family Court, Hapur, by judgment and decree dated 24.04.2019, allowed the application of the petitioner and the respondent for divorce by mutual consent, under Section 13 B of the Hindu Marriage Act. 5. One of the agreed terms of the divorce by mutual consent, was that the custody of the minor child Anni @ Awani, would be voluntarily made over by the respondent Neetu, to the petitioner Pawan Kumar Goyal. The custody of the minor child Anni @ Awani, was handed over voluntarily by the respondent Neetu, to her husband Pawan Kumar Goyal in court on 29.10.2018. 6. After the annulment of their marriage, the petitioner and the respondent have been living separately. The minor child Anni @ Awani, has since been living with her father. 7. The respondent Neetu, apparently had a change of heart, at a later point in time. She took out proceedings for custody of her minor child, Anni @ Awani, under Section 7/25 of the Guardianship and Wards Act, registered as Misc. Case No. 38 of 2019, Neetu Vs Pawan, before the learned Principal Judge, Family Court, Hapur. 8. The petitioner contested the maintainability of the proceeding for custody, instituted at the behest of the respondent. The proceeding was in the teeth of the child custody clause, in the agreement between the parties, which formed the basis of their divorce by mutual consent. The respondent cannot now resile from the mutual agreement, acted upon by parties and sanctified by the decree of the court. 9. The learned trial court by impugned order dated 14.01.2020, set forth these findings. 10. The child is a minor. The welfare and the interests of the child are paramount. The respondent cannot now resile from the mutual agreement, acted upon by parties and sanctified by the decree of the court. 9. The learned trial court by impugned order dated 14.01.2020, set forth these findings. 10. The child is a minor. The welfare and the interests of the child are paramount. The mutual agreement between the two parties, whereby the respondent voluntarily and unconditionally made over the custody of the child to her father, namely, Pawan Kumar Goyal, cannot override the welfare and best interests of the child. The welfare and best interests of a child cannot be bartered away by two parties, even in a consent agreement; in case the court finds that such agreement does not subserve the best interests and welfare of the child. These facts have to be found at the trial. The court voided the agreement being in the teeth of Section 23 of the Indian Contract Act. 11. On this footing the objection of the petitioner to the maintainability of custody proceedings, was rejected by the impugned order. 12. Ancient and settled authority has it that, at all times the welfare of the child is the paramount concern of any court. To this end, courts endeavour to approve an environment conducive to a balanced growth, and well rounded development of the child. These considerations are decisive in any matter of child custody. Such issues can be decided only after a searching enquiry by the court. An enquiry of this nature requires exchange of pleadings and reception of evidence, and fulsome consideration of relevant issues by the learned trial court. At this stage, the proceedings in the trial court cannot be interdicted, to the detriment of the minor child. 13. There is no infirmity in the order passed by the learned trial court. In any case, efficacious remedy is available to the petitioner, in case he is aggrieved by any final order in the proceedings. Hence, this Court declines to interfere with the order passed by the learned trial court. 14. Faced with this at this stage, learned counsel for the petitioner Shri Satya Prakash Shukla does not press the relief sought in this petition and recasts the relief. He contends that admittedly the respondent had voluntarily and unconditionally, handed over custody of the child to the petitioner. She did not even ask for visitation rights. 14. Faced with this at this stage, learned counsel for the petitioner Shri Satya Prakash Shukla does not press the relief sought in this petition and recasts the relief. He contends that admittedly the respondent had voluntarily and unconditionally, handed over custody of the child to the petitioner. She did not even ask for visitation rights. Her conduct speaks volumes to her lack of responsibility as a parent. Further the child has developed strong bonds and affiliations in her current environment, created by consent of parties. Unravelling these bonds at this stage, would cause emotional distress to the child. He submits that petitioner may be permitted to raise these, and relevant other issues, before the learned trial court to establish that the paramount interests of the welfare of the child, will be sub-served by remaining in the custody of her father. 15. In view of these submissions, and in the interests of the child, the following observations are made. 16. The court has to proceed very cautiously in the matter. It is an admitted case that the child has been staying with her father Pawan Kumar Goyal since, 2018. 17. Minds of infants are formative. Infants have heightened capacities to forge bonds of affection, which strengthen into deep intimacies with time. Courts have long recognized the deep sanctity of bonds and associations of infants, with their guardians (in this case the father), created over a period of time. The courts have also set their face against unwarranted disruptions in such bonds and associations. In Mrs. Annie Besant vs G. Narayaniah, reported at AIR 1914 PC 41 , it was held: “3. There is no difference in this respect between English and Hindu law. As in this country, so among the Hindus, the father is the natural guardian of his children during their minorities, but this guardianship is in the nature of a sacred lifetime substitute another person to be guardian in his place. He may, it is true, in the exercise of his discretion as guardian, entrust the custody and education of his children to another, but the authority he thus confers is essentially a revocable authority, and if the welfare of his children require it, he can, notwithstanding any contract to the contrary, take such custody and education once more into his own hands. If, however, the authority has been acted upon in such a way as, in the opinion of the Court exercising the jurisdiction of the Crown over infants, to create associations or give rise to expectations on the part of the infants which it would be undesirable in their interests to disturb or disappoint, such Court will interfere to prevent its revocation. [Lyons v. Blenkin ]” 18. The trial court will have to independently determine whether in light of facts and evidence before it, it would be wise and judicious to revoke the guardianship of the father, once such authority was granted unconditionally by the plaintiff and duly acted upon. However, the court shall at all times, bear in mind that the interests of the child and her welfare are paramount, and ahead of all other considerations. 19. While considering the best interests of the child, the court shall personally interact with the child, and also take the services of a child psychologist. However, at this stage, due to the COVID-19 pandemic, it will not be advisable to expose the child either to the environment of the courts, or to any other external and uncontrolled environment. 20. This issue shall only be decided after the court comes to a considered opinion, that the threat of COVID-19 pandemic have sufficiently receded, and the child can be exposed to an interaction with the court and the child psychologist, at a convenient and well sanitized place. The other aspects which the court may factor in, are the will and preferences of the child, educational facilities, the opportunities available and the overall environment which is conducive to overall development of the child. The court may also consider any other factors, which it deems are relevant to determine the best interests of the child. 21. During the pendency of the suit proceedings, it is open to the respondent to file an application for interim visitation rights. In case such application is filed, it shall be considered at the earliest and on top priority by the learned trial court in accordance with law. 22. It is open to both parties to raise all issues on merits regarding the welfare of the child, before the learned trial court, and the same shall be considered by the learned trial court in accordance with law, and consistent with the observations made above. 23. The petition is disposed of finally.