Baldev vs Dau Dayal

This appeal under Sec. 19 of the Family Courts Act, 1984, preferred against the judgment and order dt. 02.07.2013 passed by the Family Court Bikaner in Civil Misc. Case No. 264/2012, is reportedly time-barred by 111 days. An application seeking condonation of delay has been filed with the submissions that against the judgment and order so passed by the Family Court, earlier, a regular first appeal bearing number 209/2013 came to be filed in this Court, which was, obviously, not maintainable and hence, was dismissed and thereafter, this appeal has been filed; and that the time so spent has led to this appeal being delayed by 111 days. Having regard to the submissions made, while ignoring the delay, we have considered the matter on merits.

Though, ordinarily, such appeals, being essentially in the nature of first appeal, are entertained with notice to the other side and summoning of record but, after having heard the learned counsel for the appellants and having perused the material placed on record, we are unable to find even a w.ee bit of reason to consider interference in this matter; and are clearly of the opinion that this appeal does not merit admission.

The peculiar facts and circumstances of the case unfolding in the order impugned could be taken note of, in brief, as follows: The appellants herein are the husband and wife and, out of their wedlock, was born a daughter on 16.06.1996. It is an admitted position that in and around the month of June 2000, the matrimony of the appellants landed in trouble with serious discords, leading to strained relations. The respondent No. 1 herein is the son of the sister of the appellant No. 1. The respondent No. 2 is the wife of the respondent No. 1. It has surfaced on the record that due to the discord of the appellants, their minor daughter, then about 4-5 years of tender age, was given in the custody of the respondents, allegedly with the proposition that she, i.e., the daughter, would be handed over back to the appellants after they were able to reconcile; and that the respondents would otherwise ensure the meetings of appellants with their daughter.

The daughter of the appellants was, thus, given in the custody of the respondents at the tender age of about 4-5 years and remained with them throughout thereafter; and the respondents looked after her up-bringing and welfare including studies. The appellants, however, sent a notice in the month of March 2008 to the respondents calling upon them to hand over the custody of the girl child back to them; and thereafter, filed the petition on 18.10.2008 before the Family Court, Bikaner seeking custody of their daughter. This petition has been decided by the impugned judgment and order dt. 02.07.2013.

After taking evidence, the Family Court found shortcomings galore in the conduct of the appellants and clearly came to the conclusion that the welfare of the child required that she remained in the guardianship of the respondents. The Court also took note of the fact that at the time of passing of the final order in the petition, the girl child was about 17 years of age and was to attain majority within a year. The Family Court proceeded to dismiss the petition, while observing, inter alia, as under:-

Seeking to question the order aforesaid, it is contended on behalf of the appellants that the Family Court has not examined the matter in its correct perspective. It is submitted that the custody of the minor daughter of the appellants had been handed over to the respondents only on the assurance that she would remain with them until the disputes between the appellants were resolved and she was to be given back to the natural guardians, i.e., the parents, after resolution of such disputes. It is submitted that neither the daughter of the appellants has been adopted by the respondents nor the appellants have ceased to be her parents and thereby, the natural guardians. It is further submitted that if the custody of the child was given under the force of circumstances, when the circumstances changed and conducive atmosphere was available, as per the arrangements, custody of the minor girl child ought to have been handed over to the appellants. It is also submitted that in future, the respondents may be blessed with their own child and in that situation, the future of the daughter of the appellants would be rather bleak.

During the course of submissions, in response to our queries, the learned counsel for the appellants has pointed out that there had been another child, a son, born to the appellants, whose custody was handed over to one of the brothers of the appellant No. 1; and that no effort has been made for obtaining the custody of the said son.

After having heard the learned counsel for the appellants and having perused the material placed on record, we are clearly of the view that the propositions of the appellants cannot be countenanced, whether in law or in equity.

It remains trite that the paramount consideration in such matters is the welfare of the minor and not the alleged legal rights of any of the contesting parties. Taking note of the fact situation of the present case and examining the matter from the point of view of minor and her welfare, we could only express our serious reservations on the propositions suggested on behalf of the appellants.

The child, at the tender age of about 4-5 years, was given in the custody of the respondents, essentially due to the disputes between the appellants. At that stage, the appellants were the parents of two children. They chose to hand over the children to different relatives: son to the brother of the appellant No. 1; and daughter to the sister''s son of the appellant No. 1.

It appears that for a substantial number of years, which were of extreme significance and relevance for those hapless children, the appellants chose to continue with their disputes and discords. It is but clear that whatever might have been the differences between them, they did not perform the duties of parents and it appears that in their priorities, the welfare of the children was either non-existent or took some remote backseat. Whether there had been apathy on their part towards children, which is a strong inference coming out of their conduct or whether they had a sense of satisfaction that welfare of the children would be looked after by the other relatives, in either of events, the appellants were definitely guilty of dereliction of one of the fundamental duties i.e., of parenting, which requires proper up-bringing and nurturing the children.

The appellants, having chosen such a course of continuing with their discords for about 8 years, were definitely guilty of neglecting the children. Thereafter, they could not have suddenly come forward a day with the suggestion that since they have patched up, the custody of the girl child ought to be handed over back. It had not been the matter of custody of some movable or immovable property. It related to a human being, a girl at the crucial stage of her childhood and then adolescence. It would have definitely been too traumatic for the child herself that she was made to appear in this matter and to suggest her preferences before the Court.

We are clearly of the view that the appellants having utterly failed in their duties as parents, were not even justified in stacking a claim for the custody of their daughter. It is noticed from the observations made by the learned trial Court that the appellant No. 1 was rather trying to assert his right as the father of the child without answering to any of the responsibilities inherent in such a status, i.e., a father. The expression ''welfare of the minor'' as occurring in Section 17 of the Guardians and Wards Act, 1890 is obviously of a very wide amplitude. It could neither be decided only with reference to the position or relationship of the parties nor measured in terms of money or physical comfort alone. The welfare of minor has several facets which include physical, financial, educational and moral welfare. The claim as made by the appellants, when examined on the touchstone of welfare of the child, could have only been rejected. The learned trial Court has rightly done so.

In the given set of facts and circumstances of this case, in our view, even the directions issued by the Family Court permitting the meetings of appellants with the child appear to be rather unwarranted. The directions, in the given set of facts and circumstances, could have only been that such a meeting may be permitted only if the child would express any such desire.

Apart from the above, it is also noticeable that as per the admitted fact situation, the daughter of the appellants was born on 16.06.1996; and less than two months from this date, she would be completing 18 years of age. This aspect itself would have been sufficient to dismiss this appeal at the threshold but in the totality of the circumstances, it appeared rather expedient to make the observations foregoing, lest the appellants try to interfere with the welfare of the girl at any point of time.

It has been suggested during the course of submissions that the appellant No. 1 has made certain investments in the name of the daughter. Obviously, the investments so made are of her property and it would be discreet on the part of the appellants that such property is, without any condition, handed over to the girl, who would be shortly attaining the age of 18 years.

In the ultimate analysis, we are clearly of the view that there has not been even a semblance of reason wherefore the petition seeking custody could have been allowed by the Family Court, Bikaner. The petition has rightly been dismissed. As observed, the only mistake on the part of the Family Court had been that it had allowed the visiting rights to the appellants at their choice which shall stand modified and such visits shall be permitted only if so desired by the girl child herself and not otherwise.

Subject to the observations and requirements foregoing, this appeal stands dismissed. A copy of this order be forwarded to the Family Court, Bikaner.