Custody of Child--Interim custody of child below age of 5 years shall be with mother

JUDGMENT :

Rakesh Kumar Jain, J.

This appeal is directed against the order dated 30.04.2019 passed by the Family Court, Faridabad by which respondent No.1 has been given the interim custody of her two minor children.

2. In brief, the marriage of the parties was solemnized on 07.11.2011 at Faridabad as per Hindu rites and ceremonies. They were blessed with male twins namely, Atharv and Avyan on 25.11.2015. It is alleged that it was a premature delivery. There was some misunderstanding or incompatibility on the part of both the parties therefore, they decided to part ways amicably by filing a petition under Section 13B of Hindu Marriage Act, 1955 (for short, 'the Act"). The said petition was filed on 28.11.2017 and was assigned the number as HMA/2247/2017. Both the parties recorded their statements at the first motion stage on 30.11.2017 and the case was adjourned for recording the statements at the second motion on 30.05.2018. However, in the interregnum, they entered into a settlement/agreement on 20.04.2018.

3. Respondent No.1 had also allegedly made a criminal complaint against the appellant which is pending enquiry and also filed an application seeking guardianship of both the minor children which was assigned the number as GW No.27 of 2018.

4. While the guardianship case bearing GW No.27 of 2018 was fixed for 20.4.2018, the parties to the lis decided to settle their dispute by reducing a settlement into writing on the same day. They decided to live together as husband and wife forever for the sake of their children and it was also decided that they would withdraw the petition bearing HMA/2247/2017 which was fixed for 30.5.2018 as it has become infructuous and also decided that the minor children would not be made subject matter of any kind of litigation and would continue to remain at the present address or any other address where the 1st party (husband) would reside till the dispute is resolved and the custody of the children is decided by any Court of law. The said settlement was produced in the proceedings of HMA/2247/2017 as Ex. C1 and both the husband and wife made a joint statement on 20.4.2018 to withdraw the said petition. The joint statement made by both the husband and wife in HMA/2247/2017 on 20.4.2018 read as under:

"Joint Statement of Sh. Mukul Chauhan son of Sh. Jagdeep Singh Chauhan, r/o House No.380, Sector 9, Faridabad on SA.

And

Smt. Neha Aggarwal wife of Sh. Mukul Chauhan, d/o Sh. Pramod Kumar Aggarwal, r/o House No.930, Sector 9, Faridabad.

Stated that since both the parties to this petition for the welfare of their children, and to have happy married life have decided to stay together with the children. We entered the settlement in writing, which is Ex. C1 on record. We shall be bound by the settlement. In view of the settlement the petitioner does not want to proceed with the petition and withdraws the same."

5. On the basis of aforesaid statement, the order was passed by the Court on 20.4.2018, which read as under:-

"File taken up on the application filed by the parties. Sh. P.S. Tomar, Advocate appeared on behalf of petitioner No.2 and filed power of attorney. Taken on Record. The petitioners appeared and made statement to withdraw the instant petition. Thus, in view of the statement made by the petitioners, the instant petition stands dismissed as withdrawn. File after needful, be consigned to records."

6. It is also a fact that GW No.27 of 2018 filed by the appellant was also withdrawn.

7. The present controversy started with the filing of the petition under Sections 7 and 12 of the Guardians and Wards Act, 1890 (for short 'the Wards Act'] read with Section 6(a) of the Hindu Minority and Guardianship Act, 1956 [for short 'the Act of 1956'] at the instance of respondent No.1, who has alleged in her petition that after the withdrawal of HMA/2247/2017 and GW No.27 of 2018 in view of the settlement (Exhibit C-1), the parties started living together as husband and wife but the appellant started misbehaving with