Nidhi Dutta vs Sohil Dutta

S.S. Saron, J.—The respondent-husband filed a petition under Sections 7, 12 and 25 of the Guardians and Wards Act, 1890 seeking custody of his minor daughter, namely, Raunaq from her mother Nidhi Dutta (appellant herein).

The marriage between the parties was solemnised according to Hindu rites and ceremonies at Sonipat on 14.12.2006. From the marriage, the parties had a daughter, namely, Raunaq, who was born on 19.11.2008. She is living with the appellant, who is mother of the minor. There were matrimonial disputes between the parties. The appellant filed a petition u/s 125 of the Code of Criminal Procedure in which she is getting maintenance of Rs. 5,000/- per month, besides, Rs. 2,500/- per month for her daughter. The appellant also lodged FIR No. 13 dated 03.07.2010 against the respondent-husband alleging commission of offences punishable under Sections 406, 498A and 506 read with Section 34 of the Indian Penal Code at Police Station Women Cell, Sonipat.

Learned counsel for the appellant submits that in the said case, the accused have been acquitted by the learned trial Court and appeal before the Sessions Court has been dismissed, however, revision petition is pending in this Court.

In the present petition for custody of the minor daughter, the learned District Judge Family Court, Sonipat dismissed the petition of the respondent-husband. It was, however, observed that the minor had been meeting the respondent-husband and his parents almost twice a month under orders of the Court and she had developed a good deal of intimacy and love for them as was apparent from the photographs placed on record. The learned District Judge referred to the photographs Ex. P7 to Ex. P47 and observed that the minor daughter Raunaq could be seen in a happy mood and playing comfortably and making fun with her father, i.e., the respondent herein and her grandparents. Therefore, it was held that the respondent-husband being father of the minor would have a right to visit and meet the minor, besides, have her temporary custody from time to time so that intimacy, love and affection between the minor daughter and her father (respondent) continues to exist. Accordingly, it was directed that the respondent-husband shall be entitled to take custody of the minor from her school on every third Saturday of the month after her school was over and return her custody to her mother (appellant) on the next day, i.e. Sunday by 4:00 p.m. If, however, the minor happened to be on leave on third Saturday, then the respondent-husband shall be entitled to take her custody on the next Saturday of that month or any Saturday of the following month. It was further directed that in addition to this, the respondent shall also be entitled to temporary custody of his minor daughter for a period of first fifteen days during her summer vacations spell; besides, he shall be entitled to her temporary custody for five days each after her annual examination in March/April and in December every year. The minor, it was held, shall be taken direct from the school by the respondent-husband and dropped at the house of the appellant by 4:00 p.m. after the requisite period was over. It was clarified that if, however, the minor was not comfortable with the respondent-husband, it shall be his moral duty to leave her back in the custody of her mother, i.e., the appellant. It was still further directed that it shall be bounden duty of the concerned school authorities to give the custody of the minor Raunaq in the aforesaid manner to the respondent-husband. The respondent-husband is to produce certified copy of the order passed by the learned trial Court to the school authorities for its compliance.

Learned counsel for the appellant has contended that the minor is deeply and morally attached with the appellant-wife and it would not be in the interest of the minor to go even on temporary basis in the custody of the respondent-husband. It is submitted that the minor may be asked as to whether she was willing to go even for a temporary period with the respondent. Therefore, it is submitted that the handing over of temporary custody to the respondent is uncalled for and the order under appeal is liable to be set aside to the said extent and the appeal accepted by holding that the respondent-husband is not entitled for temporary custody of the minor.

Learned counsel for the appellant cites Surabhai Ravikumar Minawala Vs. State of Gujarat, to contend that the child should not be tossed like a shuttlecock between two families which would adversely affect the health of the child at a tender age and mentally also the child will not be able to adjust in either of the families.

We have given our thoughtful consideration to the matter. As has already been noticed, the petition of the respondent-husband for custody of the minor has been dismissed. Directions have been given only for temporary custody of the minor on every third Saturday of the month and the child is to be dropped back at the house of the appellant on the next day at 4:00 p.m.

Besides, temporary custody of the minor is also to be given to the respondent-husband for the first fifteen days during her summer vacations spell as also for five days each after her annual examinations in March/April and in December. The apprehension of the learned counsel for the appellant is that the child would not be comfortable during the night as it would be her desire to be with her mother during the night as she is used to sleep with her. The learned trial Court has already taken note of such a situation by mentioning that if, however, the minor would not be comfortable with the respondent, it shall be his moral duty to leave her back in the custody of her mother, i.e., the appellant. We have no reason or doubt that the respondent, who is the father of the minor would place the minor or keep her in any uncomfortable situation to her disadvantage. In Surabhai Ravikumar Minawala''s case (supra), a writ petition under Article 226 of the Constitution of India was filed by the mother of the minor. The dispute was between the mother, who was the natural guardian on one side and the grandmother and paternal aunts of the minor on the other side. It was held that the mother was in a better position to take care of the child, particularly when, she was well educated, her parents'' family stayed in Bombay, which is a centre of education and even from the point of view of health of the child, best medical facility can be had in that city. The fact that father of the child was in a better financial position than the mother, it was held, did not mean that the child''s interest would best be served if his custody remained with the father. The Court declined the custody for fifteen days to father in a month in the habeas corpus proceedings. The custody for fifteen days was refused holding that it would unnecessary toss the child like a shuttlecock between two families, which would adversely affect the health of the child at the tender age and mentally also the child would not be able to adjust in either of the families. It may be noticed that the minor child in the said case was nine months'' old and a reference was made to the provisions of Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (''Act''-for short) in terms of which the custody of a minor who has not completed the age of five years is ordinarily to be with the mother. In the present case, the minor at present is more than five years of age inasmuch as her date of birth is 19.11.2008. Besides, in the said case, the custody was sought for fifteen days in each month. It was held in the said circumstances that it would adversely affect the health of the child at the tender age and mentally also the child would not be able to adjust in either of families. There is no dispute to the said proposition. However, in the present case, the custody has been given only on third Saturday till Sunday of the next day upto 4:00 p.m. Besides, other custody has been given for fifteen days in summer vacations and for five days after the examinations in the month of March/April and December. It is to be noted that the natural guardian of a Hindu minor is firstly the father and after him the mother in terms of Section 6(a) of the Act. Therefore, the natural guardian is to be preferred for appointment as guardian provided that it is not in the interest of or against the welfare of the minor or unless he is found unfit. The primary and paramount consideration for the purpose of appointing a guardian is the welfare of the guardian. The provisions of Section 6(a) of the Act do not supersede the paramount consideration of the welfare of the minor and as to what is conducive for the minor''s welfare. The giving of custody of the minor, in the present case to her mother cannot be stretched to permanent cessation of the right of the natural guardian to have her temporary custody even for some time. For the development and well being of the child, the giving of temporary custody to her father as fixed would be conducive and in the welfare of the minor child. This would help her to get love and affection from her father''s side as well, which would help in her healthy development as an adult. Besides, whatever be the matrimonial dispute between the parties should not come in the way of the child''s healthy development and the child may provide a bridge between the parties to reconcile at some stage and end their bitterness. This would be possible only if there is inter-action between the minor child and her father. Therefore, we feel that the order as passed for giving temporary custody to the respondent does not warrant any interference by this Court.

In the circumstances, we feel that the order giving temporary custody of the minor to the respondent is just and proper and does not call for any interference of this Court.

Consequently, there is no merit in the appeal and the same is accordingly dismissed. It is, however, made clear that the observations made in the order are for disposing the appeal preferred by the appellant and shall not be construed as an expression of opinion on merits, in case, the respondent assails the impugned judgment and order. The same shall be considered on the basis of arguments and contentions that are raised therein.