Narinder Kumar v. Shalu

Present : Mr. R. P. Singh Ahluwalia, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 28377-C-II of 2010 : Allowed as prayed for. C. M. No. 28378-C-II of 2010 : This is application under Sections 5 and 14 of the Limitation Act read with Section 151 of the Code of Civil Procedure (in short – CPC) for condonation of delay of 281 days in filing the instant appeal. This appeal has been preferred against judgment dated

26.10.2009 passed by learned Guardian Judge, Ambala. It is alleged in the application that initially the appellant filed Civil Revision against the F. A. O. No. 6500 of 2010 (O&M) 2 impugned judgment. Notice was issued in the said Civil Revision vide order dated 09.04.2010. After appearance of respondent, it transpired that the impugned judgment is appealable. Accordingly, the Court, vide order dated 14.09.2010, granted liberty to the appellant to amend the `Memo of Revision' to that of `Memo of Appeal' and to make other necessary amendments. The case was adjourned to 25.10.2010. However, the appellant failed to take necessary steps nor anybody appeared for the appellant on 25.10.2010 in the revision petition and consequently, the revision petition was dismissed as not maintainable. Thereafter, the instant appeal has been preferred. It is alleged that amended `Memo of Appeal' could not be filed in the revision petition on account of Dussehra Vacation. I have heard learned counsel for the applicant-appellant and perused the case file. Learned counsel for the applicant-appellant reiterated the stand taken in the application. The applicant-appellant has miserably failed to make out a ground for condonation of delay of 281 days in filing the appeal. Under Section 14 of the Limitation Act, period actually spent in pursuing any other litigation can be excluded. In the instant case, however, the applicant-appellant has neither mentioned the number of Civil Revision filed by him nor has mentioned the date of filing of the said revision petition. Without said information, the benefit of Section 14 of the Limitation Act cannot be extended as the period actually spent in pursuing F. A. O. No. 6500 of 2010 (O&M) 3 the Civil Revision cannot be calculated. In addition to the aforesaid, in the revision petition, the appellant was granted liberty to convert it into appeal vide order dated

14.09.2010, but the appellant failed to avail of the said liberty. Learned counsel for the appellant repeatedly and emphatically contended that the appellant could not file the amended `Memo of Appeal' in the revision petition on account of Dussehra Vacations of the Court. The contention is completely absurd and frivolous and deserves to be rejected. This Court was closed for Dussehra Vacations since 16.10.2010 till 22.10.2010. However, the appellant had been permitted to file the amended `Grounds of Appeal' in the revision petition vide order dated 14.09.2010 and therefore, the applicant-appellant had five weeks at his disposal to file the amended `Memo of Appeal” before the Court closed for Dussehra Vacations. In addition to it, the applicant-appellant could not file the amended `Memo of Appeal' in the Court on 25.10.2010 – the date fixed in the revision petition because the amended `Memo of Appeal' was required to be filed in the Registry and not in the Court itself. It is thus manifest that entire act and conduct of the applicant-appellant is mala fide and dishonest. For the reasons aforesaid, I find no merit in the instant application for condonation of delay of 281 days in filing the appeal. The application is accordingly dismissed. Main Case : F. A. O. No. 6500 of 2010 (O&M) 4 Since application for condonation of delay in filing the appeal has been dismissed, the appeal is liable to dismissal as time barred. However, even on merits, the appeal cannot be accepted. Respondent Smt. Shalu is wife of the appellant. The dispute is regarding custody of the minor child Harsh born out of the wedlock of the parties. Respondent herein filed petition under Section 3 read with Section 6 of the Hindu Minority and Guardianship Act, 1956 and Section 25 of the Guardians and Wards Act, 1890 in the Court of Guardian Judge, Ambala claiming custody of the minor child from the appellant herein. It was pleaded by the respondent that the child was snatched from her and she was thrown out of the matrimonial home. She was also not provided proper diet during pregnancy resulting in premature delivery of the child with seven months' pregnancy only. Various other allegations were also raised. The appellant herein controverted the allegations of the respondent and pleaded that the respondent did not look after the child properly and did not give breast feeding despite medical advice. The respondent is mentally sick and has no source of income and cannot maintain the child. The appellant also alleged that the child was entrusted to him by the police because the health of the child had deteriorated while in the custody of the respondent. Various other pleas were also raised. Learned Guardian Judge, vide impugned judgment dated

26.10.2009, allowed the petition filed by the respondent herein and directed F. A. O. No. 6500 of 2010 (O&M) 5 the appellant herein to hand over the custody of the minor child to the respondent. Appellant has been given visiting rights to meet the child. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant contended that the medical report depicts that the respondent, despite counseling, did not give breast feeding to the child resulting in deterioration of his health and the said medical report has not been taken into consideration by the Guardian Judge. I have carefully considered the contention, but find no merit therein. It has been found by learned Guardian Judge that the respondent and the child were not provided proper nutrition by the appellant himself. The respondent was also suffering from bad health on account thereof. Admittedly, the child was delivered after seven months' pregnancy and it would depict the poor state of health of the respondent as she was not provided proper nutrition during pregnancy by the appellant. At that time, the question of breast feeding the child was not involved as the child was in the womb. Since the respondent was not provided proper nutritious diet during pregnancy, the child also had weak health, for which the appellant himself and not the respondent has to be blamed. The appellant has also pleaded that the child was given to him by the police as health of the child deteriorated while in the custody of the respondent, whereas the respondent has pleaded that the child was snatched F. A. O. No. 6500 of 2010 (O&M) 6 from her. In this regard, plea of the appellant has been falsified by his own evidence and stand of the respondent has been proved. The appellant himself stated in cross-examination that he had removed the child from the custody of the respondent herein. It is thus manifest that the appellant snatched the child from the respondent and that the child had not been given to the appellant by the police. The very fact that the appellant forcibly snatched the child from the respondent disentitles the appellant to retain custody of the child. If the appellant was interested in the custody of the child, the appellant should have approached the Guardian Court for proper orders, as has been done by the respondent. However, the appellant resorted to extra-constitutional and illegal method of snatching the child from the respondent. This conduct of the appellant disentitles him to retain the custody of the child. The appellant also stated in cross-examination that they i.e. appellant and his family members had kicked out the respondent herein from the matrimonial home on 20.04.2007, when the child was one year old. It shows what type of person the appellant is. Custody of the minor child cannot be entrusted to the appellant in view of his aforesaid conduct. The appellant deprived the minor child of the company of his mother, when the child needed the same most. The appellant not only kicked out the respondent from the matrimonial home, but also snatched the minor child from her. F. A. O. No. 6500 of 2010 (O&M) 7 The appellant also does not have adequate income to maintain himself, much less the child. The appellant admitted that he is handicapped person and is seasonal labourer being unemployed. On the other hand, the appellant stated that the respondent herein is earning Rs.150/- to Rs.200/- per day by making envelopes. Thus, respondent herein is in a better position to maintain the child properly. Welfare of the minor is the paramount consideration in such cases. In the instant case, welfare of the minor child lies in his custody with the respondent mother and not with the appellant father. Learned Guardian Judge has taken into consideration all pros and cons while adjudicating upon the petition filed by the respondent and has arrived at correct and considered conclusion, which is supported by cogent reasons. There is no illegality in the impugned judgment of the Guardian Judge. The appeal is completely devoid of any merit and is frivolous. The appeal is accordingly dismissed in limine. November 09, 2010 monika ( L. N. MITTAL ) JUDGE