Rajinder Kaur vs Narinderpal Singh

Ajay Kumar Mittal, J.—This appeal has been filed by the wife challenging the order dated 30.9.2013 passed by the Additional Civil Judge (Senior Division), Kapurthala whereby the petition filed by her under Section 6 of the Hindu Minority and Guardianship Act, 1956 read with Sections 7 and 25 of the Guardian and Wards Act, 1890 (in short "the Act") for custody of minor children Amritpal Singh (born on 7.12.1997), Simranpal Singh (born on 22.8.1999) and Varinder Kaur (born on 7.2.2002), was dismissed. Briefly stated, the facts necessary for adjudication of the instant appeal as narrated therein are that the marriage of the parties was solemnized in the year 1997 as per Sikh religious rites and ceremonies at Bholath, District Kapurthala. Out of the said wedlock, two sons and a daughter, namely, Amritpal Singh, Simranpal Singh (both sons) and Varinder Kaur (daughter) were born. The appellant filed a petition seeking custody of the children who are residing with the respondent at village Talwandi Kuka, inter alia, pleading that they wanted to live with the appellant as the respondent had no love and affection towards them; the appellant was thrown out of the matrimonial house by the respondent for not fulfilling the demand of dowry; there was no proper care and custody of the children as the respondent who was a driver by profession and used to remain out of house for days; the behavior of the respondent was rude and cruel towards the children and he used to beat them under the influence of liquor; the appellant was running a beauty parlour and was earning handsomely and she could provide good education to them. The appellant demanded custody of the minor children from the respondent many a times but to no effect which led to the filing the petition for custody of the children. The said petition was contested by the respondent by filing a written statement. Besides raising various preliminary objections, it was pleaded that the appellant levelled false allegations against the respondent about his character. She left the company of the respondent and the children in August, 2008 on her own accord. The other averments made in the petition were denied and a prayer for dismissal of the same was made. From the pleadings of the parties, the trial court framed the following issues:-

"1. Whether the petitioner is entitled for the custody and guardianship of minor children, as prayed for? OPP

Whether the petitioner is concealing material and correct facts from the Court, if so, its effect? OPR

Relief."

The trial court on appreciation of evidence led by the parties, decided issue No. 1 against the appellant and in favour of the respondent. Issue No. 2 was decided as not being pressed. Accordingly, the trial court vide order dated 30.9.2013 dismissed the petition. Hence, the present appeal.

Learned counsel for the appellant submitted that the respondent is not taking proper care of the children and his behavior towards the children is very rude and cruel. Learned counsel further submitted that even the children are being deprived of natural love and affection of the mother. He also submitted that the appellant is a natural and better guardian than the respondent and can provide better access to education and livelihood.

After hearing learned counsel for the appellant, we do not find any merit in the appeal.

Under Section 6 of the Hindu Minority and Guardianship Act, 1956, the father of the minors being the natural guardian, has the right of custody unless the Court comes to the conclusion that the father is unfit to have the custody and that it is not for the welfare of the minors that the father should be allowed to exercise his right. Guardianship is in the nature of a sacred trust and any entrustment is essentially a revocable authority. There is no allegation, either before this Court or in the pleadings of the petition that the father is unfit to have the custody and that it is not for the welfare of the minors that the father should be allowed to exercise this right of his. In such a situation, there is no justification to displace the right of the father, that too, when the minors are in the custody, taking education, living along with their grandparents and there is no proof as to cruel treatment by their father. Further, the order of custody of minor children is required to be made by the court treating the interest and welfare of the minors to be of paramount importance. It is not the better right of the either parent that would require adjudication while deciding their entitlement to custody. The desire of the children coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the concerned parent to take care of the child are some of the relevant factors that have to be taken into account by the court while deciding the issue of custody of a minor. What must be emphasized is that while all other factors are undoubtedly relevant, it is the desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the Court.

In the present case, the children appeared to be happy in the company of their father who also appears to be in a position to look after them, provide them with adequate educational facilities and also to maintain them in a proper and congenial manner. The trial court had rightly observed that for overall benefit of the children, their custody should remain with the respondent. The finding of the trial court recorded in para 12 of the impugned order is reproduced below:-

"12. In the present case in hand the children are living with their father along with their grandparents. It has come on record that respondent owns a Scorpio vehicle and working as driver. It is admitted by the petitioner that the respondent is earning handsome amount. Although it is contended by the petitioner that she is working as beautician but except the bald statement of the petitioner no other evidence to prove this fact has come on record. Even otherwise also the petitioner claims to be doing the work of beautician from her house at village Talwandi Kuka, it cannot be presumed that she is earning sufficient amount to raise all the three children as Talwandi Kuka is a small village. Further more the respondent is herself living in the house of her parents and is not having any independent house to live. The children''s education is of paramount importance and the father is spending good amount of money for providing them excellent education, and the mother does not have the financial affluence as the petitioner claims to have. Thus it will be for the overall benefit of the children that the custody should remain with the respondent. However, in the event the petitioner also wishes to contribute towards the upbringing of the child, the respondent shall not create any obstruction to and/or prevent the appellant from also making such contribution. The petitioner will be at liberty to visit the minor child either in the respondent''s house or in the premises of a mutual friend as may be agreed upon. To enable the petitioner to meet the child, the respondent shall ensure the child''s presence either in his house or in the house of the mutual friend agreed upon. The aforesaid arrangement will continue for the present, but the parties will be at liberty to approach the Court for fresh directions should the same become necessary on account of changed circumstances."

Taking into account all the aforesaid facts, we do not find any infirmity in the approach of the trial court. Accordingly, we dismiss the appeal and affirm the impugned order dated 30.9.2013 passed by it.