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2019 Supreme(P&H) 2998
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Rajan Gupta, Manjari Nehru Kaul, JJ.
Het Ram - Appellant
Versus
Meena @ Asha - Respondent
FAO No. 4581-2018
Decided On : 14-11-2019
Mr. Surmeet S. Sandhu, Advocate for Mr. Gagneshwar Walia, Advocate, for the appellant
The welfare of the children supersedes the legal right of a parent in custody decisions.
Headnote:
Custody - Guardians and Wards Act, 1890 - Section 25 - [Section 25 of the Guardians and Wards Act, 1890] - The court emphasized the welfare of the children over the legal right of a parent and considered the children's willingness in deciding custody. The court cited a previous case to highlight the importance of considering the child's wishes, free from outside influence, in custody decisions. The court upheld the lower court's decision to deny custody to the father based on the children's unequivocal unwillingness to accompany him and the mother's sufficient support from her family.
Fact of the Case:
The husband appealed the dismissal of his petition seeking custody of his minor children. The wife refuted the allegations and claimed that the husband had not provided any support to the children and had not made efforts to visit them.
Finding of the Court:
The court upheld the lower court's decision to dismiss the husband's petition for custody, considering the children's unequivocal unwillingness to accompany the father and the mother's sufficient support from her family.
Issues: The entitlement of the petitioner for custody of the minor children, maintainability of the petition, and relief.
Ratio Decidendi: The welfare of the children supersedes the legal right of a parent in custody decisions. The court considered the children's willingness, free from outside influence, in deciding custody.
Final Decision: The instant appeal stands dismissed.
JUDGMENT
Manjari Nehru Kaul. J. - The instant appeal has been preferred by the husband - Het Ram, whereby, he has impugned the judgment and decree dated 13th September, 2017, passed by the Ld. Addl. District Judge, Jind (in short 'Ld. Court below') vide which the petition filed by him, under Section 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as 'the Act'), seeking custody of his minor children aged 15 years & 12 years, respectively, was dismissed.
2. A few facts necessary for adjudication of the case, as pleaded in the petition filed by the appellant-husband (petitioner therein) before the Ld. Court below, may be noticed.
3. The marriage between the parties was solemnized on 26th November, 2002. Out of the said wedlock a daughter namely Kashish and a son namely Arun were born on 08th June, 2004 and 25th January, 2007, respectively. Their marriage was dissolved by an ex-parte decree of divorce on 14.11.2009 (Ex.R-1). It was pleaded by the appellant in his petition that since the respondent Meena @ Asha had no permanent source of income, she was unable to provide good eduction and upbringing to the children. On the other hand, not only was he financially sound but even the children were willing to join his company and live with him. Hence, he filed the petition seeking custody of his minor children.
4. Per contra, the respondent-wife (respondent therein) refuted and denied the allegations of the appellant-husband, in her written statement filed before the Ld. Court below. She alleged that the appellant had never bothered to see or meet the children even once in the 10 years preceding the filing of his petition under Section 25 of the Act nor had he even once paid a single penny towards her or the children's maintenance. She further claimed that they had been residing separately since 2007 and no efforts had ever been made by the appellant to visit the minor children. She also alleged that appellant - Het Ram had since contracted a second marriage and had no independent source of income, whereas, she had sufficient means to take care of both of her children, who were being provided with good education as well. She further claimed that both the children Kashish and Arun too did not wish to reside with the appellant, let alone meet him. In the aforementioned background, she prayed for dismissal of the petition filed by the appellant before the Ld. Court below.
5. From the pleadings of the parties, the following issues were framed by the Ld. Court below:-
"1. Whether the petitioner is entitled for the custody of minor children namely Kashish and Arun as prayed for in the petition ? OPP
2. Whether the petition is not maintainable in the present form ? OPR.
3. Relief."
6. In support of their case, the appellant stepped into witness-box as PW-1, besides examining PW-2 Shakuntla, who corroborated the version of the appellant. They tendered into evidence certain documents and closed their evidence. On the other hand, respondent- Meena @ Asha examined herself as RW-1, besides examining her father as RW-2 and thereafter, closed her evidence after tendering into evidence some documents.
7. After analyzing the evidence led by the parties and also other material on record, the Ld. Court below dismissed the petition filed by the appellant under Section 25 of the Act.
8. We have heard learned counsel for the parties and reappraised the evidence and other material on record.
9. It may be noticed that the parties during the arguments reiterated their earlier versions and maintained their respective stands as taken before the Ld. Court below.
10. It is a matter of record that the appellant was involved in criminal cases. An ex-parte decree of divorce was obtained thereafter by the respondent in the year 2009. The fact that the appellant never met the minor children after the year 2007 nor did he render any assistance much less financial to his children stands un-rebutted. It has been strenuously argued by the learned counsel for the appel
