Kashmir Kaur v. Gurtej Singh & Anr.

Mr.Rajesh Girdhar,Advocate,for the appellant Mr.Amit Sharma,Advocate, for the respondents Rakesh Kumar Jain, J, This appeal arises out of an order passed by Addl.Civil Judge (Senior Division), Muktsar, dated 21.7.2009, allowing an application filed by the respondents under Section 25 of Guardians and Wards Act,1890 (for short, 'the Act'), for restoring the custody of minor Amandeep Kaur to them, being her natural parents. This is a case of a tussle between natural parents of minor Amandeep Kaur, who have given her birth and her foster mother who has brought her up. In brief, the case set up by the natural parents/respondents herein is that respondent No2. Baljit Kaur wife of respondent No.1.Gurtej Singh got pregnant in the year 1995 and was having treatment from FAO No.4228 of 2009 (O&M) 2 Bansal Nursing Home (Usha Gupta Hospital), Kotkapura Road, Muktsar. On 27.12.1985, the doctor attending respondent No.2, revealed that she was carrying twins. She delivered two identcal girls on 9.1.1996 at about 11.30 p.m. The staff nurse took both the babies on the pretext of routine check up. On 10.1.1996 at about 9.10 a.m. the doctor sent one girl child out of twins explaining the absence of other child to the respondents that she is not keeping good health, therefore, she has been kept separately in another room. Respondent No.2. was discharged from the hospital after seven days but when they demanded the other girl child, the doctor told them that the other girl child had died two days earlier and was cremated. Although, they were not much satisfied with the doctor's explanation as he could not show the place of cremation of the other girl child, but relying upon his version , they left the hospital. In August, 2007, the respondents came to know about minor Amandeep Kaur from the sister of respondent No.1, who is a resident of Muktsar that she is in custody of the appellant. Ultimately, the respondents demanded the custody of their child from the appellant, but she refused and rather filed a suit for permanent injunction against the respondents in which she (the appellant) admitted that the respondents are the natural parents of Amandeep Kaur, who had given the minor voluntarily in adoption to her in the presence of the witnesses. But since she belongs to a lower caste and the respondents belong to upper caste, therefore, due to pressure built up by their caste, the respondents have filed the present litigation for claiming the custody of the minor. It was also averred that the minor Amandeep Kaur is living with the appellant from the last 13 years with whom she has developed great FAO No.4228 of 2009 (O&M) 3 love and affection. On the pleadings of the parties, following issues were framed :-

1. Whether the petitioners are natural parents of Amandeep Kaur ? OPP

2. Whether the petitioners are entitled to the custody of minor Amandeep Kaur ? OPP

3. Whether this Court lacks jurisdiction to entertain and try the petition ? OPR

4. Whether this petition is bad under Order 2 Rule 2 read with Section 11 C.P.C. ? OPR

5. Whether the petitioners have concealed the material facts from the Court ? OPR

6. Whether the minor Amandeep Kaur has been taken under lawful adoption by the respondent ? OPR

7. Whether the petition is filed within statutory period of limitation ? OPR

8. Relief: Both the parties led their respective evidence in order to prove their case. Learned trial Court decided issue Nos. 1 to 6 and 7 together in which it was held that the respondents are the natural parents of the minor Amandeep Kaur and the case set up by the appellant that the respondents had given the minor to her by way of adoption,was false and unfounded. It was held that nothing has been proved on record that the respondents cannot act as guardians or that they being the natural parents will not exercise good care in respect of the welfare of the minor Amandeep Kaur. FAO No.4228 of 2009 (O&M) 4 The learned Court below was only concerned with the welfare of the minor and not the rights claimed by the respective parties and held that it would be in the welfare of the minor if her custody is restored to the natural parents. Learned counsel for the appellant has argued that the Court should have taken into consideration the wishes of the minor who wanted to stay with the appellant. It is also submitted that at the age of 14 years, the Court should not have decided in resettling the minor in an unknown atmosphere. On the other hand, learned counsel for the respondents argued that the appellant is not entitled to retain the custody of the minor as she did not come to the Court with clean hands and has painted a false picture to earn equities in her favour. She had claimed custody of the minor on the basis of oral adoption which she has miserably failed to prove before the Court below, meaning thereby that the child was frisked away by her from the hospital where the appellant was working as a Sweeper. Learned counsel for the respondents has referred to various decisions in the cases of Madhubala and others Vs.Arun Khanna,AIR 1987 Delhi 81; Smt.Nirmala Jain Vs. The State and others AIR 1983 Delhi 120 and Surinder Kaur Vs. Harbax Singh AIR 1984 Supreme Court 1224. I have heard learned counsel for the parties and have perused the record with their assistance. In deciding a case about the custody of a minor, the Court is required to see the welfare of the minor as also the attending circumstances. In this case, the appellant has admitted that the respondents are the natural parents of the minor who has another identical twin sister at their home and it has not been proved by the appellant that the minor was ever given in adoption to her by the natural parents. Thus the question arises as to how FAO No.4228 of 2009 (O&M) 5 the appellant is having the custody of the minor. Answer is very obvious because the appellant was working in the hospital where respondent No.2 had delivered twin daughters, out of which one daughter was frisked away by the appellant and the doctor attending respondent No.2, in order to save his own skin cooked up a story of the demise of the second child of respondent No.2. Otherwise, the doctor attending respondent No.2. had no right to cremate the second daughter/minor without the consent of the respondents/natural parents who was unable to satisfactorily reply even to the question put to him about the place of cremation of the other child. Since the appellant had taken away the minor child of the respondents without their consent, she cannot be allowed to claim the custody of the minor child even on the pretext that she has brought her up for about 13/14 years. In my view, there is no welfare of the said minor child with such a lady who has practically stolen the child of the natural parents. Insofar as wish of the minor is concerned, as she has been living continuously with the appellant, therefore, she is under her great influence and could not form an intelligent preference in favour of her natural parents. Thus, in my view, the appellant has no case at all to claim custody of the minor whose act was unethical and immoral. In view of my above discussion, I do not find any merit in this appeal and the same is hereby dismissed. No costs. July 07.2010 RR (Rakesh Kumar Jain) Judge FAO No.4228 of 2009 (O&M) 6