Kamal Maini vs Natasha @ Mona And Ors

Civil Revision No.4410 of 2015 (O&M) {1}

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

CR No.4410 of 2015 (O&M). Date of decision:10.05.2016

Kamal Maini ... Petitioner

Vs.

Natasha alias Mona and others ... Respondents

CORAM: HON'BLE MR. JUSTICE AMIT RAWAL

1. Whether reporters of local newspapers may be allowed to see judgment?

2. To be referred to reporters or not? Yes

3. Whether the judgment should be reported in the Digest?

Present:- Mr. Arun Jain, Senior Advocate with Mr. Abhishek Dhull, Advocate for the petitioner.

Mr. Piyush Khanna, Advocate for respondents No.1 to 4.

AMIT RAWAL J.

Petitioner-husband is aggrieved of the impugned order

dated 09.03.2015 of Guardian Judge, Ludhiana, whereby, an

application seeking interim custody of the child from mother, has

been dismissed while according visiting rights.

Mr.Arun Jain, learned Senior Counsel assisted by

Mr.Abhishek Dhull, Advocate submits that marriage between

husband and wife, i.e., petitioner and respondent was solemnized on

10.12.2006. On 19.01.2008, a male child, namely, Vivan Maini was

born. As per the case set out in a petition under Section 25 of

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Guardian and Wards Act, originally filed at Ludhiana and thereafter,

transferred at Hoshiarpur, when the child was 6 ½ years old, wife

along with child left the matrimonial home and started residing at

Hoshiarpur. He submits that during the period the child remained at

Ludhiana, achieved many accolades as he had participated in all the

competitions and stood first, second, in essence had been coming

out with flying colours either it be Tricycle Race, Fancy Dress, Hindi

and English Poetry, Biscuits Race, Solo Dance, Run for Fun,

Alphabet Race, Story Telling, Competition of Best of Waste, Sorting

Competition, Clay Modeling, Rabbit Race, Colouring, Quiz,

Conversation Competition, Hurdle Race, Talk to Rock, Basket Ball,

Cap Chase, Rubbish to Furnish, Tongue Twister, Memory Game, Self

Intro, Tease the Brain, Touch and Feel, Marshal Art, Long Jump etc.

He was studying in one of the best schools in Ludhiana, i.e. Jesus

Sacred Heat School. The school certificates in this regard are

annexed as Annexure P-2 (colly). He further submits that maternal

uncle of minor child, i.e., brother of the respondent is involved in an

FIR bearing No.109 dated 24.08.2014 registered with P.S.Sadar

Hoshiarpur registered under Narcotics Drugs and Psychotropic

Substances Act, 1985 for possessing 7 grams heroin

(diacetylmorphine). In fact, he is drug addict and maternal grand

father of the child, i.e, father of the respondent is suffering from

Tuberculosis and is under constant treatment. The diseases

Tuberculosis is a communicative, thus, there is every apprehension

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that it may not be contracted by minor child. The atmosphere in the

house at Hoshiarpur is not congenial and suitable for the child and it

would seriously affect his upbringing, approach to life and schooling,

much less, studies. The child at such tender age imbibes culture,

habits, day-to-day routine being followed in the house, whereas, the

petitioner, who, is having a business of ready made garments at Mall

Road, Ludhiana and has sufficient means not only to take care of the

child but had an arrangement for upbringing of the child. There would

not be any impediment hindrance in his studies which he had been

pursuing in the aforementioned school. Ludhiana is A class city vis-a-

vis Hoshiarpur. Though the trial Court declined the relief of interim

custody but granted the visiting rights to meet the minor in the

chamber of the counsel for a period of two hours from 2.00 p.m to

4.00 p.m and the taxi and other travelling expenses for the said

purpose will be borne by the petitioner. Even the aforementioned

directions have not been complied with and a contempt petition, in

this regard, is stated to be pending. He further submits that no doubt,

welfare of the child is prime importance and it is also essential and

necessary that the custody of the child at the present age of 8 ½

years old can be with either of the parents. Continuous stay of the

child with the mother may not hinder his development or change his

attitude or interest/ love and affection for the petitioner. Whereas, in

every likelihood that respondent may pollute the mind and tutor the

child against the petitioner. In fact, there is no healthy environment at

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Hoshiarpur, thus, urges this Court for setting aside of the impugned

order and further his client is not averse to extending the visiting

rights to the respondent on any terms and conditions which this Court

may deem it appropriate.

Mr. Piyush Khanna, learned counsel appearing on behalf

of respondents No.1 to 4 submits that child has been admitted in the

best schools of the Hoshiarpur, i.e., Toddlers Home Study Halls and

during hearing passed on copy of the certificates of the merits to

show that he had been equally excelling in all the competitions as he

had been participating at Ludhiana, so therefore, there is no falling

back in his ability and capability in any of the competitions. His

overall attitude and aptitude in the life is similar as it was in Ludhiana.

The maternal uncle has already joined the Rehabilitation Centre and

undergoing the treatment. Whereas, the maternal grandfather had

already been treated as the aforementioned disease is curable. Had

it been so, the child by this time would have contracted but all the

parameters of prevention have been taken care of.

In support of his aforementioned contentions, he relies

upon the judgments of the Hon'ble Supreme Court in Vikram Vir

Vohra and Shalini Bhalla 2010(4) SCC 409 and Dhanwati Joshi

vs. Madhav Unde 1998(1) RCR (Civil) 190 to contend that in such

circumstances, much less, by keeping in view the welfare of the

child, custody of the child should not be handed over to the father. No

doubt, as per the Hindu Minority and Guardians Act, 1956

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(hereinafter referred to as "the Act"), in any case, there is a bar of

handing over the custody of the child below 05 years to the father but

yet keeping in view the aforementioned facts and circumstances, no

harm would be caused, in case, the order under challenge is

maintained and nothing prevents the petitioner to conclude the trial of

the petition filed under Section 25 of the of Guardian and Wards Act,

as expeditiously as possible, in order to bring the litigation to some

logical end.

I have heard learned counsel for the parties and

appraised the paper book and of the view that in such a sensitive and

delicate matters, the Court should be wary in deciding the

controversy. There is every possibility, in case, the child remains in

the custody of the wife for innumerable period, some steps may be

taken to tutor and pollute his mind but equally so, other attenuating

circumstances are required to be seen regarding his daily needs

which child requires at this stage. It is the mother, who, knows the

pulse of the child at just a simple glare. On the other hand, father is

not able to make out the needs and basic necessities, much less,

day-to-day requirements of the child and the daily chores. Normally in

our Indian society, the husbands are devoted to their profession or

vocation/business etc., put their hard labour and sweat in earning

ensures for the uplifting of the family and therefore, they got less time

towards house. Though expectations are there, it is only mother,

who, caters to the day-to-day requirement of the child. Paramount

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consideration is welfare of the child, for the purpose of custody which

is to be looked into. The Court should be circumspect in passing the

order in utter haste as the fall out of the order, i.e., removal of the

child from the mother's custody, can be drastic, particularly of the

minor child in the present case, who, has been in continuous care

and observation of the mother during the period husband and wife

lived together, in case, it may result into mental hardship to child. The

most appropriate and feasible path to be adopted is to issue an

appropriate direction to the trial Court for expeditious disposal of the

petition for seeking custody. The aforementioned view of mine is

supported by the judgment of the Hon'ble Supreme Court in Ruchika

Abbi and another vs. State of National Capital Territory of Delhi

and another 2016 (1) RCR (Civil) 667. However, the respondent-

wife is directed to maintain the visitation rights as noticed and

directed and none of the party should make any endeavour or

attempt to violate or cause any disobedience because it is in the

interest of child, so of having not kept at bay from the father for

infinite period.

In case, any supervening fact or circumstance arises or

atmosphere in the house of the respondent-wife is not

convenient/congenial for the welfare of the child, liberty is granted to

seek interim custody.

With the aforementioned observations, the impugned

order is affirmed. The revision petition with the aforesaid directions is

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disposed of.

This order of mine shall not be construed an expression

of opinion on the merits of the case.

(AMIT RAWAL) JUDGE May 10, 2016 savita

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