Avtar Singh v. Sh.Jagmohan Singh

interim application filed by the respondent herein was allowed by directing by way of interim measure that the minor child would remain in the custody of the respondent Jagmohan Singh. The respondent filed a petition being maternal uncle of minor Harsirjan Kaur for being appointed as a guardian of the minor under the Hindu Minority and Guardianship and Wards Act (for short the Act). Paramjit Kaur sister of the respondent was married with the petitioner in the year 1989 and she died on 21.4.2002. From the wedlock of Paramjit Kaur and Avtar Singh, petitioner, two children namely Kirat Preet Singh and Harsirjan Kaur were born. Mother of the minor children had died by consuming some poison as she was subjected to torture and harassment by her husband i.e. the Avtar Singh petitioner. Allegation in the petition was that Avtar Singh, petitioner thereafter contracted second marriage who also left the society of the petitioner due to his misbehavior and torture. Thereafter, he performed third marriage who also left him because of same reason and now he got married fourth time with one Amanpreet Kaur, who has already two children both of whom have been left by her with the previous husband. The petitioner, however, denied the averments and stand taken was, that it was only his second marriage. The case of the respondent, that after the death of the mother of children, wife Amarnpreet Kaur would beat and torture the children and they were kept without food several times and the petitioner was in the habit of taking liquor and had other bad vices and CR No.6079 of 2010 3 habits, was denied. Kiratpreet Singh attained majority, whereas Harsirjan Kaur was still minor. Case of the respondent was that the petitioner left the minor daughter to her maternal aunt Surinder Kaur at Delhi where she provided education to the minor daughter from her own funds and all the expenses of the minor were borne by her maternal aunt, whereas the petitioner did not spend even a single penny. On 24.4.2010, petitioner by giving beating to the minor and his brother turned them out of house and both brother and sister came to the house of the respondent on their motorcycle of their own free will and also lodged report with the police. On 27.4.2010, in the evening when the respondent along with two children was going to purchase medicines then the petitioner along with his associates stopped and showed them knife in order to take the children with him but they resisted, the children were beaten up with foot and danda blows and the petitioner even threatened to kill them. When the children raised hue and cry then Gurcharan Singh and Joginder Singh son of Harbans Lal came and rescued them. The case of the respondent was, that the petitioner was not providing maintenance to the children and had created such a atmosphere in his family where overall development of the children was not possible and therefore, the custody of minor was said not to be safe in the hands of the petitioner. Minor Harsirjan Kaur along with her brother Kiratpreet Singh was now residing with the petitioner at Jagadhari. Along with the petition, an application for ad interim injunction CR No.6079 of 2010 4 restraining the petitioner from taking custody of minor children was also filed. The petition and application were contested on the ground of jurisdiction and that the respondent being maternal uncle was not entitled to custody of children in the presence of father of the minor who was competent to look after the children and that the children were also happy with the father and that a false report was filed. Other allegations were denied. Averments made with regard to the death of the mother of the minor by consuming poison and that of the petitioner's marriage fourth time was denied. Plea raised was that Amarnpreet Kaur was his second wife but it was denied that the children were treated with cruelty. It was the case of the petitioner that filing of application with the police was part of pre- planned conspiracy to keep the children with him, as the petitioner had got issued the warrant under section 97 of the Code of Criminal Procedure for search of his minor daughter. Petitioner in order to avoid the execution of warrant obtained stay from the court. First question raised was with regard to the jurisdiction on the plea, that the jurisdiction vested in the District Judge, Jagadhri, under the Act. This plea was rejected in view of the delegation of powers of District Judge to the trial court in these matters. Second question raised was, that as the minor was living at Paonta Sahib with his parents, therefore, jurisdiction to entertain the petition for custody was with the District Court where the minor resides. CR No.6079 of 2010 5 In support of this contention reliance was placed on the school certificate where children were shown to have been admitted. The case was that mere shifting of minor to Jagadhri could not give jurisdiction to the courts at Jagadhri. Stand of the respondent was that after the death of the mother of the minor they were living with their maternal uncle at Delhi and further that the petitioner was treating the minor children with cruelty. It was also the case of the respondent that jurisdiction was with the court where the minors are staying i.e. Jagadhri. Learned Guardian Court distinguished the authorities relied by the petitioner, in view of the peculiar facts of this case, where it was shown that brother and sister had left the house of the petitioner on their own, and had come to Jagadhri with an intention to permanently stay at Jagadhri, as they had danger to their life from the petitioner and his associates. The court, therefore, rejected the plea of the jurisdiction, by accepting the stand of the respondent. Learned trial court considered the respective contentions and recorded a prima facie finding that one son of the petitioner was major, therefore, he could stay as per his own wish, whereas with regard to the minor daughter, the learned Guardian Court held, that though the girl aged 14 years was to stay with her father i.e. natural guardian. But such coercive step against her wishes would not only play havoc with the psyche of the child and also cause irreparable loss and damage in her academic career. Learned trial court recorded statement of the minor in court on

17.8.2010, wherein she flatly refused to live in the company of her father. CR No.6079 of 2010 6 She also stated that she was very happy with her maternal aunt, because her father on provocation of her step-mother, used to beat and torture her. Judgment relied upon by the petitioner was, therefore, distinguished by recording positive finding that in selecting proper guardian of minor, the paramount consideration was to be welfare and well being of the child. The court, while giving custody of child should consider child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. The learned court further held, that from the statement of the minor, it appeared that the child was quite intelligent and therefore, was capable of making intelligent choice. In view of the findings recorded above and specially, keeping in view the welfare of the child, by way of interim measure, learned Guardian Court held, that it would be proper to give temporary custody of minor child to Jagmohan Singh, respondent, where she is living happily living, without any pressure. Directions were also issued to the school authorities at Paonta Sahib, to issue the school leaving certificate so that she can be allowed to study at a place of her choice. Mr. Sanjeev Gupta, learned counsel appearing on behalf of the petitioner challenged the impugned order, firstly on the ground, that the court at Jagadhri had no territorial jurisdiction to entertain and try the petition, as the minor was ordinarily residing at Paonta Sahib and temporary stay at Jagadhri could not give jurisdiction to the court. In support of this contention learned counsel for the petitioner placed reliance on the judgment of this court in the case of Parshant Chanana Vs. Mrs.Seema alias Priya 2010 (1) RCR (Civil) 400, wherein CR No.6079 of 2010 7 this court was pleased to hold, that where child was staying at present being not her permanent place but temporary one, the courts at Chandigarh, therefore, had jurisdiction to entertain the application for interim relief, as the child was ordinarily residing at Chandigarh. This contention of the learned counsel for the petitioner cannot be accepted for the reason, that in the present case the minor along with her brother had not come to temporarily reside at Jagadhri, but had come there with an intention to permanently settle, to avoid torture of the petitioner and her step-mother. Once an intention of permanent settlement at Jagadhri was shown, it could not be said, that her stay with the respondent was only temporary, so as to oust the jurisdiction of court at Jagadhri, to entertain and try the application. Learned counsel for the petitioner thereafter contended, that as per the provisions of the Act, father being the natural guardian was entitled to custody of child, in preference to the minor's maternal uncle. In support of this contention, learned counsel for the petitioner placed reliance on the judgment of this court in the case of Tarsem Singh Vs. M/s Kissan Commission Agents, Mamdot (2007-1) PLR 288, wherein it was held, that minor's grand-father had no right of custody in the presence of natural guardian i.e. mother. There can be no dispute with the settled proposition of law. However, in order to determine the custody, besides the statutory provisions, the paramount consideration is the welfare of the child. Prima facie finding recorded by the learned Guardian Court is, that the minor would not be safe with the petitioner as she was subjected to torture and CR No.6079 of 2010 8 beating by the petitioner and her step-mother. Child is of 14 years of age and was found to be quite intelligent. She deposed about her welfare, and had declined to go with the father, by alleging that she was subjected to torture and harassment. Therefore, it was not safe for her to live with the petitioner. It was, keeping in view the welfare of the minor, that the learned court ordered the temporary custody with the respondent. The learned counsel for the petitioner placed reliance on the judgment of this court in the case of Rulda Singh Vs. Gurdip Singh 2009 (1) RCR (Civil) 953, to contend, that the custody of the child after the death of the mother is to be given to the father, as the opinion of the child could not be the only criteria to consider the welfare of the minor. The impugned order being based on the opinion of the child, therefore, cannot be sustained. This contention again is misconceived. The guardian court besides seeing the opinion of the child has also taken into consideration the welfare and interest of the child by directing the school to give transfer certificate so that she could study better, in good atmosphere free of any fear. Nothing was pleaded or brought on record by the petitioner to claim that the financial status of the respondent was not good or that the interest of the minor was not safe in the hands of the respondent. The only plea was, that he being father was entitled to custody. This general proposition cannot be accepted though under the statute, the natural guardian has right to claim custody of minor, but this has to give CR No.6079 of 2010 9 way to welfare of the minor. Hon'ble Supreme Court in number of judgments has held, that paramount consideration is welfare of the child. In view of the serious allegations about the character of the petitioner, his conduct of marrying time and again and also his habit of beating and torturing the children, were rightly held it to be sufficient to disentitle the petitioner to claim custody of the child. The impugned order of custody is only by way of temporary arrangement. The final decision would be taken by the court after parties are allowed to lead evidence in support of their respective stands. There is no ground made out to interfere with the interim arrangement ordered by the learned court, as the order passed is keeping in view the welfare of the child. No merit. Dismissed. However, keeping in view the fact, that under the normal circumstances the custody is to be with the natural guardian and that the petitioner has been denied custody of child on the allegations which are yet to be proved, it is directed, that hearing of the case be expedited and the case be decided preferable within 6 months of the receipt of the certified copy of this order.

21.09.2010 (Vinod K.Sharma) Judge