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2019 Supreme(P&H) 3081
IN THE HIGH COURT OF PUNJAB AND HARYANA
Rajan Gupta, Karamjit Singh, JJ.
Sandeep Singh Sangwan - Appellants
Vs.
Ritu - Respondent
FAO No. 5824 of 2018
Decided On : 16-12-2019
For the Appellant : J.S. Jaidka
For the Respondents: Anil Mehtra and Arun Sharma
The welfare and interest of the child are paramount in custody matters, considering the emotional attachment and desires of the child, the capability of the parents to provide proper care and education, and the need for the child to remain in touch with both parents.
Headnote:
Guardianship - Custody of Minor Daughter - Guardians and Wards Act, 1890, Hindu Minority and Guardianship Act, 1956 - Section 25 of the Guardians and Wards Act, 1890, Section 13 of the Hindu Minority and Guardianship Act, 1956
Fact of the Case:
The appellant sought custody of his minor daughter under Section 25 of the Guardians and Wards Act, 1890 read with Section 13 of the Hindu Minority and Guardianship Act, 1956. The court dismissed the petition but granted visitation rights to the appellant.
Finding of the Court:
The court found that the welfare of the child is of paramount consideration in custody matters. It noted that the child was emotionally attached to her mother and that the mother was capable of providing proper education and care. The court declined the appellant's request for custody but provided visitation rights.
Issues: The issues framed by the trial court included the entitlement of the petitioner for custody of the minor daughter, the maintainability of the petition, and the relief sought.
Ratio Decidendi: The court emphasized the welfare and interest of the child as the paramount consideration in custody matters. It considered the emotional attachment and desires of the child, the capability of the parents to provide proper care and education, and the need for the child to remain in touch with both parents.
Final Decision: The appeal was dismissed, and the parties were left to bear their own costs.
ORDER :
1. The instant appeal has been filed by Sandeep Singh Sangwan, the appellant, against the judgment and decree dated 28.03.2018 passed by the learned District Judge (Family Court), Ambala, vide which the petition filed by him under. Section 25 of the Guardians and Wards Act, 1890 read with Section 13 of the Hindu Minority and Guardianship Act, 1956 (for short 'the Act'), seeking custody of his minor daughter, was dismissed.
2. Brief facts of the case are that marriage between the parties was solemnized on 24.03.2010 at Shagun Palace, Ambala City, according to Hindu rites and ceremonies. After the marriage, the parties cohabited together in their matrimonial home and out of this wedlock, one female child, namely, Bhomika, was born on 05.10.2011. Since the day of marriage, the act and conduct of the respondent was very cruel towards the appellant and she used to harass and humiliate the appellant and his parents. Respondent used to leave her matrimonial home after a short intervals of time, without consent and knowledge of the appellant or his family members and used to stay at her parental house. The appellant always remained concerned for the welfare and education of his minor daughter. In the month of April, 2014, the appellant got the child admitted in Father Angel Convent School, Nanhera, Ambala Cantt. Even thereafter, respondent used to quarrel on petty matter. However, under the pressure of the police, the custody of the minor daughter was again taken by the respondent, as a result of which, the minor failed to attend the school for about two months. On 02.11.2015, the parents of the respondent left the minor child with the appellant and then the child again started attending the school. However, on 11.03.2015, the respondent illegally took away the minor child from the school without the consent or permission of the appellant. The matter was reported to the police but the police failed to take any action. Finally, petition under Section 25 of the Act was filed by the appellant seeking custody of the minor daughter.
3. The petition was contested by the respondent, who filed written statement in which, it was denied that she used to ill-treat the appellant. However, it was admitted that the marriage between the parties was performed on 24.03.2010 and one female child, namely, Bhomika, was born out of this wedlock on 05.10.2011. It was also pleaded that she along with her minor daughter was turned out of the matrimonial home in February, 2015 and all the efforts made for reconciliation failed.
From the pleadings of the parties, following issues were framed by the learned trial Court:-
"1 Whether the petitioner is entitled for custody of minor daughter Bhomika on the grounds pleaded in the petition? OPP.
2. Whether the petition is not maintainable? OPR.
3. Relief.
4. Appellant himself appeared in the witness-box as PW 1 and reiterated the contents of the petition in his affidavit (Exhibit PW 1/A). He also produced documents, Mark-A to Mark-K.
On the other hand, respondent herself appeared in the witness- box as RW 1. She also tendered documents, Mark-DW 1/1 to Mark-DW 1/4. In rebuttal, appellant tendered documents, Mark-L to Mark-S.
5. After hearing learned counsel for the parties, the court of learned District Judge (Family Court), Ambala, dismissed the petition. However, the visitation rights were granted to the appellant, as per which, the minor child is to remain in the interim custody of her father from 10:00 a.m to 4:00 p.m., on every second and last Sunday of the month.
Aggrieved by the said judgment dated 28.03.2018, the present appeal has been filed by the appellant.
We have heard learned counsel for the parties and have perused the record carefully.
6. Learned counsel for the appellant submitted that the respondent is unemployed and she has got no resources to provide proper education to the minor child, who is now eight years of age. It is further contended that future of the child is not safe and secure in the hands o
