Dharambir Singh vs Karamjit Kaur

S.S. Saron, J.

Karamjit Kaur-respondent filed a petition before the District Judge, Kurukshetra u/s 7 of the Hindu Minority and Guardianship Act with enabling

provisions under the Guardians and Wards Act, 1890 seeking custody of her minor daughter namely Parachi. The petition of the respondent was

allowed by the Ld. Civil Judge (Senior Division), Kurukshetra, exercising the powers of District Judge, vide impugned order dated 21.08.2009.

Aggrieved against the same, the appellant who is the grandfather of the minor Parachi has filed the present appeal.

Notice of motion was issued by this Court on 05.10.2009 for 7.12.2009 as also notice regarding stay.

Thereafter deliberations for amicably resolving the dispute between the parties were carried out in Court as well as by way of mediation

proceedings. However, no fruitful results were achieved. On 23.05.2012, this Court ordered that in the meanwhile the custody of the minor child

shall remain with the appellant. The appeal was admitted on 12.09.2012 in the presence of the counsel for the parties. At the time of admission of

the appeal, learned counsel for the respondent had submitted that despite repeated letters written by him to the respondent, she was not

responding. It was also ordered at that time of admission of the appeal that the appellant shall continue to retain custody of the minor child during

pendency of the appeal.

After admission, the case was listed on 23.08.2013 on which date counsel for both the parties were asked to be informed and the case was

adjourned to 12.09.2013. As per office report both counsel for the parties were informed of the date fixed. On 12.09.2013, counsel for the

appellant appeared but none appeared for respondent and the case was adjourned for today and counsel for the respondent was asked to be

informed for the said date. As per office report counsel for the respondent has been informed for today as well. Therefore, despite counsel for the

respondent being informed for two dates i.e. 12.09.2013 and for today, none has appeared. Earlier counsel for the respondent, as already noticed,

had submitted that the respondent was not responding to his letters. Therefore, it appears that the respondent is not interested in defending the

appeal.

In any case, it may be noticed that Karamjit Kaur-respondent was married to Sewa Singh who was the son of appellant-Dharambir Singh.

From the said marriage between Sewa Singh and Karamjit Kaur (respondent), they had a daughter namely Parachi, who was about 3 years old at

the time of filing the petition by the respondent, which was filed on 07.06.2008. Sewa Singh son of appellant and husband of the respondent died

in an accident on 26.07.2007. After the death of Sewa Singh, according to the respondent she was asked to leave her matrimonial house which

fact was denied by the appellant. It was also stated by the appellant that he had no objection if the respondent-Karamjit Kaur resides in her

matrimonial home and looks after the child and in case she does not want to live in her matrimonial home, she may meet the child whenever she

wants. From the pleading of the parties, the following issues were framed on 18.05.2009:-

1) Whether petitioner (now respondent) is entitled to custody of minor Parachi as prayed for? OPP.

2) Whether the petition is not maintain-able? OPR

3) Whether petitioner(now respondent) is estopped by her own act and conduct from filing the present petition? OPR.

4) Whether Civil Court has no jurisdiction to entertain? OPR.

5) Relief.

Learned Civil Judge (Senior Division) Kurukshetra, exercising the powers of District Judge vide its impugned judgment and order allowed the

petition of the respondent. The minor, however, has remained with her grandfather(appellant). The respondent is not responding to the letters of

her counsel, besides, she is also not appearing and nor has her counsel appeared despite sending two letters and intimation to him. The appellant is

present in Court and he is more than willing to keep the minor. The appellant has filed an affidavit in Court, in which he has stated that as per his

reliable information, Karamjit Kaur (respondent) has re-married with one Nirmal Singh son of Sh. Lala Ram of Village Shanti Nagar, District

Kurukshetra about 1= years ago. Therefore, in view of the changed circumstances and fact that the respondent is not appearing in Court either in

person or through her counsel, we are satisfied that it would be in the interest of the minor that she remains with the appellant.

Accordingly, we allow the appeal and set aside the impugned order dated 21.08.2009 passed by Ld. Civil Judge (Sr. Division) Kurukshetra and

dismiss the petition filed by the respondent seeking custody of her minor daughter Parachi.