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2015 Supreme(P&H) 1228
PUNJAB AND HARYANA HIGH COURT
AJAY KUMAR MITTAL & SNEH PRASHAR, JJ.
Paramjit Kaur and Others – Appellants
Versus
Baljinder Singh – Respondent
FAO No. 3745 of 2014
Decided On : 7.1.2015
Advocate Appeared:
For the Appellant:B.P.S. Virk, Advocate.
For the Respondent:Jagjit Singh, Advocate.
The welfare of the child is the paramount consideration in determining custody, and financial capabilities should not be the sole basis for deciding custody.
Headnote:
Guardians and Wards Act - Custody Dispute - Section 47 - Summary of Acts and Sections: Guardians and Wards Act, 1890, Section 47 - The court discussed the provisions of the Guardians and Wards Act, emphasizing the welfare of the minor child as the paramount consideration in determining custody. The court highlighted the importance of the child's ordinary contentment, health, education, intellectual development, and favorable surroundings in deciding custody. The court also considered the financial capabilities of the parties but emphasized that custody should not be based solely on financial status.
Fact of the Case:
The case involved a custody dispute between Paramjit Kaur and Baljinder Singh over their minor sons. Baljinder Singh sought custody, citing his job and financial stability, while Paramjit Kaur argued that she provided for the children's welfare and education despite financial constraints.
Finding of the Court:
The court found that the welfare of the children lies in living with their mother, Paramjit Kaur, and that it would be too harsh to order their custody to be handed over to the father, Baljinder Singh.
Issues: The main issues were whether the petitioner was entitled to the custody of the minor children and whether the petition was maintainable.
Ratio Decidendi: The court emphasized that the welfare of the children is the paramount consideration in determining custody, and financial capabilities should not be the sole basis for deciding custody.
Final Decision: The court set aside the previous order and dismissed the petition filed by Baljinder Singh, allowing the appeal by Paramjit Kaur.
SNEH PRASHAR, J.
1. This is a first appeal under Section 47 of the Guardians and Wards Act, 1890 (for short the Act) by Paramjit Kaur and others appellants (respondents in the original petition) against the judgment dated 06.12.2013 passed by the learned Additional Civil Judge Senior Division Kharar, by virtue of which the petition filed by Baljinder Singh respondent seeking directions to Paramjit Kaur etc. to hand over to him the custody of minor sons, was allowed.
2. The facts extracted from the record are as under:
Appellant-Paramjit Kaur and respondent-Baljinder Singh were married on 20.01.1999 as per Sikh rites and rituals and out of their wedlock two children namely Sukhbir Singh and Lakhdeep Singh were born who are still minors.
The minor children being in custody of appellant-Paramjit Kaur and there being a marital discord, Baljinder Singh filed the instant petition invoking the provisions of the Act for claiming the custody of the minor children. He submitted that Paramjit Kaur had filed a petition under Section 125 of the Code of Criminal Procedure wherein she had pleaded that she had no source of income for providing education and other necessities to the minor children. On the other hand he(Baljinder Singh) is serving at Chandigarh on contract basis with U.T. Government; his children are studying in a Government Model School, Sarangpur, U.T. Chandigarh, which is an English medium school. In the year 2007, when he had gone to attend his duty, Paramjit Kaur had taken away the minor children and ornaments etc. and had gone to her parents house thereby leaving his society without any rhyme or reason. Despite requests by him to her and her parents, she did not return.
Pleading that Government Model School at Village Sarangpur was very near to his village and that for the welfare of the minor children he wants to keep them with him being their natural guardian, Baljinder Singh prayed that the custody of the children be given to him.
3. Appellant-Paramjit Kaur contested the petition. She admitted that she is the legally wedded wife of Baljinder Singh and that Baljinder Singh is father of Sukhbir Singh and Lakhdeep Singh. Explaining the reason for their living separately, she submitted that the behaviour of Baljinder Singh and his family members towards her and her children was very harsh; she had been tolerating cruelties from the very beginning but ultimately on 18.09.2006, she was given severe beatings and was turned out of the matrimonial home in three wearing clothes alongwith the minor children. Thereafter she remained admitted in the hospital for treatment up to 23.09.2006, but her husband-Baljinder Singh never bothered to enquire about her welfare. She then filed a petition under Section 125 of the Code of Criminal Procedure in the Court of Sub Divisional Judicial Magistrate, Samrala. As a counter blast to the same, Baljinder Singh filed the instant petition with a view to avoid payment of maintenance allowance to her.
Resisting the prayer of Baljinder Singh for grant of custody of the children, Paramjit Kaur submitted that he is a greedy person and has no love and affection either for her or the children and that he had been ignoring his responsibilities towards the family and had never bothered to know about their welfare.
4. On the pleadings of the parties following issues were settled by learned trial court:
1. Whether the petitioner is entitled to get the custody of minor Sukhbir Singh and Lakhdeep Singh from respondent No. 1? OPP
2. Whether petition is not maintainable? OPP
3. Relief.
Both the parties adduced evidence in support of their respective contentions.
5. Learned trial court vide order dated 06.12.2013 allowed the petition directing respondent No. 1 Paramjit Kaur to hand over the custody of minors namely Sukhbir Singh and Lakhdeep Singh to petitioner Baljinder Singh.
Feeling aggrieved by the said order Paramjit Kaur along with the two minors has preferred the instant appeal.
6. We have heard Mr. B.P.S. Vir
