IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : THE GUARDIANSHIP AND WARDS ACT, 1890 Judgment reserved on: January 31, 2013 Judgment delivered on:April 2, 2013 FAO 39/2012 ROMANI SINGH ..... Appellant Represented by: Ms.Geeta Luthra, Sr.Advocate instructed by Ms.Ashly Cherian, Mr.Harish Malik, Advocates versus LT.COL.VIVEK SINGH ..... Respondent Represented by: Mr.V.Shekhar, Sr.Advocate instructed by Ms.Namita Roy, Mr.Piyush Jain, Ms.Shaveta Chaudhary, Mr.Amit Chobey & Mr.Jatin Rajput, Advocates CONT.CAS (C) 178/2012 ROMANI SINGH ..... Appellant Represented by: Ms.Geeta Luthra, Sr.Advocate instructed by Ms.Ashly Cherian, Mr.Harish Malik, Advocates versus LT.COL.VIVEK SINGH ..... Respondent Represented by: Mr.V.Shekhar, Sr.Advocate instructed by Ms.Namita Roy, Mr.Piyush Jain, Ms.Shaveta Chaudhary, Mr.Amit Chobey & Mr.Jatin Rajput, Advocates CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE VEENA BIRBAL VEENA BIRBAL, J. 1. This is an appeal under Section 47 of The Guardianship and Wards Act, 1890 (hereinafter referred to as ‘the Act’) wherein challenge has been made to the order dated December 7, 2011 passed by the learned Principal Judge, Family Courts, Dwarka, New Delhi whereby the petition of the appellant under Section 25 read with 10 and 12 of the aforesaid Act for the grant of custody of minor daughter, namely, Saesha Singh and for appointment of appellant as a guardian of the said child, has been dismissed. 2. The marriage between the parties was solemnised on November 25, 2007 as per Hindu rites and ceremonies. A daughter Saesha Singh was born from their wedlock at Base Hospital, Delhi on October 29, 2008. When the petition seeking custody and appointment of guardianship of the minor Saesha Singh was filed, the child was 18 months of age. Presently she is about 4 years and 5 months of age. Appellant is a teacher in Kendriya Vidyalaya-3, INA Colony, New Delhi. Respondent is an Army Officer. The appellant has alleged that respondent had harassed her from the beginning of marriage for not bringing sufficient dowry, jewellery, etc. and due to inability to fulfil his demands he had been harassing and ill-treating her. She had stated that during the posting of respondent outside Delhi, the appellant had been staying in a rented Government accommodation and had been maintaining herself and the child. On September 08, 2009 the respondent was posted in Delhi and was allotted a Government accommodation at P-30, Pratap Chowk, Delhi and the appellant also shifted in the said house. 3. The respondent due to his duties used to come from office late. After returning from office respondent invariably used to drink and thereafter used to beat the appellant and was also using filthy language. She had alleged that on December 29, 2009 respondent gave her beating and had thrown her out of the house. She had alleged that with the intervention of neighbour she was permitted to enter the house. Again on February 03, 2010 respondent had beaten her and had taken out an army dagger. The appellant saved herself and her child with great difficulty. In the scuffle respondent injured his hand and was treated in military hospital. Again on August 04, 2010 respondent in a drunken state gave beatings to her and threw her out of the house along with the child. The appellant had called police. The police personnel called the military police and a complaint was lodged. Appellant had also called her parents who had come to her house from Noida. Her parents took hold of the child and the appellant and when they were about to leave, the respondent pulled out the child from the hands of her mother and went inside the house and locked himself. He was drunk at that time. The police suggested not to do anything otherwise respondent would harm the child. It was assured that the child would be returned to her in the morning. Accordingly, the appellant and the respondent were instructed to come to the police along with the child in the morning. The respondent did not bring the child and threatened that he would not give the child to her. Since then, she had been running from pillar to post to get back the child but respondent had been refusing. 4. Appellant has alleged that she had been in continuous possession, care and protection of the child since her birth and respondent has no love and affection for the child. In his absence, when he is away for duty his Orderly looks after the girl child. Respondent leaves for his office at 8.30 A.M. and returns back late in the evening and he is not in a position to look after the basic needs of the child. She had alleged that after school hours she had been devoting all her time to the child and during her duties in the school the child is being looked after by her parents who have been frequently visiting her house. It is in the mental well being of the child that the custody of the minor child Saesha Singh be given to her, being her natural mother and she be also appointed as guardian of the person of the said child. 5. Respondent had filed written statement before the Family Court opposing the petition filed by her. The respondent has taken the stand that the appellant is not in a position to look after the child as there is nobody to look after the child when she is away for work. Her parents are residing at Noida and she is working and living in Delhi. He has denied having made demands of dowry or harassing appellant as is alleged. According to him, their marriage was solemnized at Arya Samaj Mandir and there was no demand of dowry. He has alleged that appellant herself had given an affidavit at the time of marriage that no kind of dowry was demanded from her. 6. The respondent has alleged that from the beginning of marriage he has provided all the comforts to the appellant and had taken her to various places outside Delhi. The child was born at Base Hospital, Delhi Cantt. and he had taken leave at that time. He had been providing the necessary expenses to her for maintaining her as well as the child as the respondent was having his salary account with her and she was having ATM card and had been constantly withdrawing the money. He had provided her with various other facilities the details of which are given in the written statement. He had alleged that the appellant invariably was getting drunk on their visits to Army Officer’s Mess in the parties. The appellant used to call him ‘Doom’ meaning scheduled caste in Garhwali language and the appellant herself is a ‘Garhwali Rajput’ and used to call herself Khandani. 7. The respondent has denied the allegations of beating as are alleged by her. As per him, on August 04, 2010 appellant and the respondent had gone to Army Mess where she had two drinks and on returning home she asked for more drinks and on refusal by him she called her parents and a colleague on telephone. They all came within one hour in two cars. Police was also called. The policemen called Military Police which also came at the spot. Thereafter, the appellant and her parents had packed the belongings and had left the house along with the appellant and her mother had thrown the minor child on the floor by saying “Ye Doom ki aulad hai hum khandani log hain” and appellant’s mother told the respondent “Hum apni ladki ko le ja rahe hain tu apni ladki to apne aap pal le, is ladki ko iski dadi palegi woh apna farz nibhayegi.”(We are taking back our daughter, you take care of your own daughter, now her grandmother will take care of her and will do her duty.) 8. The brother of the respondent who is also in Armed Forces and was staying at a distance of 4-5 kms. from his house had rushed to the respondent. However, the appellant left the child and went with her parents. His brother had taken the photographs at that time and has alleged that appellant has no love and affection for the child and she had abandoned the child and thereafter had not bothered for her well being. The child is being looked after by the respondent and his parents and the child is getting love and affection and is very happy as such petition is liable to be dismissed. 9. Appellant has filed the rejoinder denying all the allegations made therein and has reiterated the contents of her petition. 10. On the pleadings of the parties, the following issues were framed on January 13, 2011:- “1. Whether the petitioner is entitled to the custody of the child as prayed by him? (OPP) 2. Relief.” 11. The parties led their respective evidences. The appellant had examined herself as PW1 and the respondent had examined himself as RW1. 12. After hearing the counsel for parties and perusing the record the learned Principal Judge, Family Courts has dismissed the petition. 13. Aggrieved with the same, the present appeal is filed. 14. Learned senior counsel for appellant has contended that the finding of the learned Principal Judge, Family Court that the appellant had abandoned the child on August 04, 2010 is a perverse finding. It is contended that it is the respondent who had snatched the child from the hands of her mother. It is submitted that it has come in the evidence that the appellant had also taken the child’s clothes with her. It is submitted that the same falsifies the stand of the respondent that she had abandoned the child. It is further submitted that the trial court has relied upon CD Ex.R-19 which was not proved in accordance with law. It is further contended that the same is a fabricated document as whatever was uttered by the respondent to her mother has been deleted. It is further submitted that the child is below 6 years of age and is of tender age and is also a girl child. The custody of girl child of tender age is ought to be given to the mother as she is the best person who can look after the comforts of the minor child. It is submitted that the learned Family Court has not appreciated the evidence in a proper manner and has not considered the totality of facts and circumstances. It is further submitted that during the pendency of present petition, respondent has also filed a divorce case against her. It is submitted that in the facts and circumstances of the present case the impugned order is liable to be set aside. 15. On the other hand, learned senior counsel appearing for respondent has contended that the child is very comfortable with the respondent. When the respondent attends his office, his parents take care of the child. It is submitted that child is getting all love and affection from them. It is submitted that even when the parties were living together the respondent was taking care of the child and the child is very much attached to him. It is further submitted that there is no perversity or illegality in the finding of the trial court. The learned trial court has rejected the petition after appreciating the evidence on record. It is further submitted that it is the appellant who had abandoned the child on August 04, 2010 and the petition has been filed to harass the respondent as such she is not entitled for any relief. 16. Sector 7 of the Act deals with the power of the court to make order as to the guardianship. The same reads as under:- “7. Power of the Court to make order as to guardianship- (1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made- (a) appointing a guardian of his person or property, or both, or (b) declaring a person to be such a guardian, the Court may make an order accordingly. (2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court. (3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian instead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.” 17. Section 8 of the Act enumerates persons entitled to apply for an order as to guardianship. Section 9 empowers the Court having jurisdiction to entertain an application for guardianship. Sections 10 to 16 deal with procedure and powers of Court. Section 17 is another material provision and may be reproduced as under:- “17. Matters to be considered by the Court in appointing guardian- (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. (2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. (3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.” 18. While appointing guardian, the court should be guided by the sole consideration of the welfare of the minor. 19. Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as “1956 Act”) is another equally important statute relating to minority and guardianship among Hindus. Section 4 defines “minor” as a person who has not completed the age of eighteen years. “Guardian” means a person having the care of the person of a minor or of his property or of both his persons and property, and inter alia includes a natural guardian. Section 2 of the Act declares that the provisions of the Act shall be in addition to, and not in derogation of 1890 Act. 20. Section 6 of aforesaid Act enacts as to who can be said to be a natural guardian. It reads as under:- “6. Natural guardians of a Hindu Minor- The natural guardians of a Hindu Minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are – (a) in the case of a boy or an unmarried girl—the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl - the mother, and after her, the father; (c) in the case of a married girl - the husband; Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section— (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.—In this section, the expressions “father” and “mother” do not include a step-father and a step-mother.” 21. Section 8 enumerates powers of natural guardian. Section 13 is extremely important provision and deals with welfare of a minor. The same may be quoted in extensor as under:- “13. Welfare of minor to be paramount consideration. (1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. (2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor. (emphasis added) 22. It is well settled position in law that in deciding the custody of the child it is not the welfare of the father, nor the welfare of the mother that is the paramount consideration for the court. It is the welfare of the minor and the minor alone which is paramount consideration. 23. In (2008) 9 SCC 413 Nil Ratan Kundu & Anr. v. Abhijit Kundu, while deciding the matter on the custody of the minor child, the Supreme Court has dealt with various decisions on the subject by taking into account interest and well being of the minor as paramount consideration. Some of the important cases discussed in the aforesaid judgment are as under:- “42. In Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840, this Court held that object and purpose of 1890 Act is not merely physical custody of the minor but due protection of the rights of ward's health, maintenance and education. The power and duty of the Court under the Act is the welfare of minor. In considering the question of welfare of minor, due regard has of course to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship. 43. The Court further observed that merely because there is no defect in his personal care and his attachment for his children--which every normal parent has, he would not be granted custody. Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him. The Court also observed that children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. 44. Again, in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, (1982) 2 SCC 544, this Court reiterated that only consideration of the Court in deciding the question of custody of minor should be the welfare and interest of the minor. And it is the special duty and responsibility of the Court. Mature thinking is indeed necessary in such situation to decide what will enure to the benefit and welfare of the child. 45. In Surinder Kaur Sandhu (Smt.) v. Harbax Singh Sandhu, (1984) 3 SCC 698, this Court held that Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes father as a natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. [See also Elizabeth Dinshaw (Mrs.) v. Arvand M. Dinshaw, (1987) 1 SCC 42; Chandrakala Menon (Mrs.) v. Vipin Menon (Capt), (1993) 2 SCC 6]. 46. Recently, in Mausami Moitra Ganguli v. Jayant Ganguli, JT 2008 (6) SC 634, we have held that the first and the paramount consideration is the welfare of the child and not the right of the parent. 47. We observed: "The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child are predominant consideration. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the Court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of al the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration." 24. In AIR 2009 SC 557 Gaurav Nagpal v. Sumedha Nagpal, the Supreme Court while deciding the issue of custody of minor held that prime consideration in deciding such matter is the welfare of the child and not the right of parents under statute. The relevant para of the judgment is reproduced as under:- “42. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mousami Moitra Ganguli's case (supra), the Court has to due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.” 25. For deciding the present petition the paramount consideration for the court is to see with whom the welfare of the child lies. 26. As noted above, the child is presently 4 years and 5 months old. It is admitted position that parties are living separately since August 04, 2010 and since that day the child is living with the respondent and her grandparents at Meerut. Presently respondent is also posted at Meerut. The learned Principal Judge, Family Court during the pendency of petition, had given appellant/wife and her parents visitation right of the child on 1st, 3rd and 4th Saturday of every month between 2.30 P.M. to 5 P.M. in court. The aforesaid order was passed with the consent of parties. While dismissing the petition only visitation rights for the aforesaid days and duration have been given to the appellant.