Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(P&H) 1651

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Alka Sarin, J.
Shweta – Appellant
Versus
Anand Sekhri & Ors. – Respondents
CR-973-2022 (O&M)
Decided On : 30-08-2022

Advocates appeared:
Mr. Manish Soni, Advocate, for the Appellant; Mr. Nikunj Dhawan, Advocate, for the Respondent

The welfare of the child is the paramount consideration in matters of custody, especially for minors below the age of 05 years, and the mother is ordinarily best suited to care for the infant during the tender age as per Section 6(A) of the Hindu Minority and Guardianship Act, 1956.

Headnote:
Custody - Hindu Minority and Guardianship Act, 1956 - Section 6(A) - [Custody] - [Hindu Minority and Guardianship Act, 1956, Section 6] - The court discussed the provisions of Section 6(A) of the Hindu Minority and Guardianship Act, 1956, which provides that the custody of a minor, who has not completed the age of 05 years, shall ordinarily be with the mother. The court highlighted the importance of the mother's role in nurturing and shaping a young tender mind and emphasized that the welfare of the child is the paramount consideration. The court referred to judicial precedents to support the principle that the mother is best suited to care for the infant during the tender age and that the father's suitability is not relevant where the child is below the age of 05 years. The court also emphasized the special bond between siblings, especially twins, and the detrimental effects of separating them.
Fact of the Case:

The petitioner-mother sought permanent custody of the minor twins and urgent interim custody of the minor baby girl. The Family Court declined to grant interim custody to the petitioner-mother and only granted her visitation rights.
Finding of the Court:

The court found that the welfare of the children is the paramount consideration and that the custody of a minor, who has not completed the age of 05 years, shall ordinarily be with the mother as per Section 6(A) of the Hindu Minority and Guardianship Act, 1956.
Issues: The issues revolved around the custody of the minor twins, especially the minor baby girl who was suffering from a rare medical condition, and the court's consideration of the welfare of the children as the paramount consideration.
Ratio Decidendi: The court's decision was based on the interpretation of Section 6(A) of the Hindu Minority and Guardianship Act, 1956, emphasizing the mother's suitability to care for the infant during the tender age and the special bond between siblings, especially twins.
Final Decision: The court set aside the impugned order and directed the interim custody of the minor twin daughter to be handed over to the petitioner-mother, with visitation rights granted to the respondent No.1-father. The Family Court was requested to dispose of the main petition expeditiously.

JUDGMENT

Alka Sarin, J. - The present civil revision petition has been filed under Article 227 of the Constitution of India challenging the order dated 10.11.2021whereby the Family Court declined to grant interim custody to the petitioner-mother of the twin daughter and only granted her visitation rights.

2. The brief facts relevant to the present lis are that the marriage of the petitioner and the respondent No.1 was solemnized on 16.11.2011. On 24.06.2020 twin children (a boy and a girl) were born to the couple. The baby girl was 1.9 kgs at the time of her birth. The baby girl was later detected as suffering from Hemihypertrophy. It is the case set-up by the petitioner that on 14.08.2021 she was thrown out of the matrimonial home and that she was not allowed to take the minor baby girl with her. The petitioner filed a petition under Sections 7 and 12 of the Guardians and Wards Act, 1890 read with Section 6(A) of the Hindu Minority and Guardianship Act, 1956 for permanent custody of the minor twins along with an application under Section 12 of the Guardians and Wards Act, 1890 seeking urgent interim custody of the minor baby girl. The respondent No.1 contested the said petition as well as the application for interim custody. Vide the impugned order dated 10.11.2021 the application for interim custody was disposed off with the following directions:

'Hence in these circumstances, application is partly allowed with the condition that the respondent shall bring the minor daughter to the house of petitioner (house No.1203, C-Block, Classic Residency, Raj Nagar Extn. Ghaziabad) on every 2nd and 4th Saturday of the month and will hand over the custody of the minor daughter to the petitioner for a period from 11:00 AM to 2:00 PM. Similarly, petitioner shall hand over the custody of minor son to the respondent at the same time and the minor child boy shall remain in custody of the respondent from 11:00 AM to 2:00 PM at the same place. However, it is made clear that this is purely an interim arrangement and the parties are left at liberty to move application for variation and alteration of the aforesaid arrangement, only if warranted and justified in changed situation, or in case consequences of the aforesaid arrangement ordered turn out to be such which necessitate alteration or modification therein, but for the welfare of the children. The parties to this lis are directed to comply with the order of grant of visitation rights to the petitioner and other directions passed herein meticulously, and they will fully cooperate which each other. It is also expected that they would not poison the ears of the minor children against the opposite side."

3. Learned counsel for the petitioner would contend that the minor baby girl is one of the twins and is aged about 02 years and that as per Section 6(A) of the Hindu Minority and Guardianship Act, 1956 the custody of a minor, who has not completed the age of 05 years, shall ordinarily be with the mother. Learned counsel in support of his argument has relied upon the judgment by the Division Bench of this Court in the cases of Mukul Chauhan Vs. Neha Aggarwal &Ors. [2019(4) RCR (Civil) 342]; Pinki Agarwal Vs. State of Punjab &Ors. [2022(1) RCR (Civil) 594] and Pallavi Vs. Nand Kishor alias Naveen [2018(4) RCR (Civil) 136].

4. Per contra, learned counsel for the respondents has contended that the impugned order passed by the Family Court is a well reasoned order keeping in view the fact that it is in the interest of the minor child that her custody remains with the respondent No.1-father. Learned counsel has further contended that the minor baby girl in the present case is suffering from a rare condition called Hemihypertrophy and that the respondent No.1-father has been looking after her welfare and has been taking her for regular check-ups and that it is in the welfare of the child that the custody remains with the respondent No.1-father.

5. Heard.

6. In the present case the twins, who were born on 24.0