Raja Singh v. Nasib Kaur

Judgment

1. The present appeal has been filed under Section 47 of the Guardian and Wards Act, 1890 (hereinafter referred to as “the Act”) by the appellant, who is aggrieved against the order dated 3.11.2009 passed by the Civil Judge (Senior Division), Faridkot by which the petition under Sections 8 and 25 of the Act for the custody of minor girl child Amandeep Kaur had been dismissed.

2. The case pleaded in the petition filed by the appellant was that he was married to Amarjit Kaur, resident of village Dohak about 20 years back as per Sikh rites and they had lived and cohabited as husband and wife and one male child Raninder Singh was born from the said wedlock, who was aged about 19 years and was doing the work of agriculture after completing the studies. The marriage of the appellant with Amarjit Kaur was still subsisting as she was still alive. The respondent Nasib Kaur was a married woman and her husband's name was Ranjit Singh. Nasib Kaur FAO No.7287 of 2010 -2- had started living in the house of the appellant as his keep and from their illicit relations one daughter namely Amandeep Kaur was born, who is now about eight years old and her custody is with the respondent. Nasib Kaur had started alleging herself to be the wife of the appellant and filed an application under Section 125 of the Code of Criminal Procedure for grant of maintenance for herself and her minor child Amandeep Kaur. The said application was dismissed by the Chief Judicial Magistrate, Faridkot on

23.7.2003 and in revision the Addl. Sessions Judge, Fast Track Court, Mukatsar vide order dated 22.4.2005 directed the appellant to pay maintenance allowance at the rate of ` 500/- per month to Amandeep Kaur and rejected the claim of the respondent. The said order had been

confirmed by this Court and the petitioner was making the payment of maintenance allowance to Amandeep Kaur. The respondent had filed an application for enhancement of maintenance allowance from ` 500/- to ` 3000/- per month under Section 127 of the Code of Criminal Procedure. The respondent had no love and affection towards Amandeep Kaur rather out of greed was acting against her interest and using the entire maintenance amount for her own use and necessities and was not providing even a single paisa to the minor and the minor had been kept by her just like a servant. The respondent had no source of income and in such circumstances, she was not in a position to keep and maintain the minor, who had not been brought up well. The future of the minor Amandeep Kaur was in dark and no body was in the house of the respondent to properly look after the minor Amandeep Kaur, therefore, her studies were being neglected. The appellant-father being a natural guardian has great love and affection towards her and had sufficient source of income and doing the agriculture work owning seven-eight acres of FAO No.7287 of 2010 -3- superior quality agricultural land. He was also selling the milk of buffaloes and had sufficient income and could properly watch the interest of the minor Amandeep Kaur and provide better education and all facilities of modern life to her. The custody of the minor child in the hands of the respondent was not safe and not for the benefit of the minor and she would remain uneducated and simpleton lady and would not be able to marry, therefore, custody of the minor child should be given to him.

3. The respondent-wife in her written statement opposed the said claim and pleaded that the parties were married on 18.3.1998 according to Sikh rites as she was a widow but the appellant was not satisfied with the dowry given and gave her beatings and turned her out of the house. At that point of time she was pregnant and from this wedlock Amandeep Kaur was born on 8.8.1999. A sum of ` 500/- per month had been granted as maintenance allowance by the Addl. Sessions Judge, Fast Track Court, Muktsar vide order dated 22.4.2005. The appellant filed a petition under Section 9 of the Hindu Marriage Act, 1955 which was decided on 22.2.1999 and now he could not turn around and deny that the respondent was not his wife. The respondent was spending all the amount for the welfare of the minor girl child and looking after her with full attention and care and she had great love and affection for the minor child from the core of her heart, who was studying in New Model Senior Secondary School, (English Medium), Faridkot. The minor child hated the appellant-her father and had full love and affection for the respondent who was watching all her interest, and custody of the minor child would not be safe in the hands of the appellant and it was not for the benefit of the minor girl child.

4. The appellant filed replication denying all the averments made in the written statement and reiterated his plea in the petition. FAO No.7287 of 2010 -4-

5. On the basis of the pleadings, the Guardian Court framed the following issues:- “1. Whether the petitioner is entitled to get custody of minor Amandeep Kaur from the respondent?OPA

2. Whether the petitioner has no locus standi to file this petition?OPR

3. Whether petitioner has no cause of action against the respondent?OPR

4. Relief.”

6. After examining the appellant, who had appeared as PW-1 and respondent-Nasib Kaur and perusing the record, the Guardian Court dismissed the petition by holding that the petitioner was not a credible person and as per the provisions of Section 6(b) of the Hindu Minority and Guardianship Act, 1956, the mother was natural guardian in preference to the petitioner. It was also noticed that the petitioner had denied in the proceedings under Section 125 of the Code of Criminal Procedure that Amandeep Kaur was his daughter. The maintenance had been denied by the Chief Judicial Magistrate, Faridkot vide order dated 23.7.2003 and it was only in revision proceedings that the minor was granted maintenance allowance. The case had been further contested upto the High Court and, therefore, the petition had been filed only as a counter blast to avoid fixation of maintenance and recovery. The respondent had filed a suit for maintenance allowance to the tune of ` 5000/- per month under Hindu Adoption and Maintenance Act, 1956 and for recovery of ` 1,80,000/- as arrears of maintenance from 9.6.2004 to 8.6.2007 and, therefore, the petition was only a counter blast to avoid the recovery. The Guardian Court also noticed that Nasib Kaur was a graudate and the father was an FAO No.7287 of 2010 -5- illiterate person and that the minor child had been living for the last more than eight years with her mother and uprooting the minor child could create an emotional upheaval. Under Issues No.2 and 3, it was held that petitioner has no locus standi to file the petition and has no cause of action against the respondent. Accordingly, relief was declined to the petitioner.

7. Resultantly, the present appeal has been filed along with an application for condonation of delay which was allowed on 6.3.2012.

8. Counsel for the appellant has submitted that to test the bonafides of the appellant a sum of ` 50,000/- have been paid under orders of this Court to the respondent. Efforts for compromise had also failed and resultantly it is submitted that the father was in a better position to look after the minor child and the Court below had erred in holding that the welfare of the child lay with the mother which had been taken into consideration while denying the custody to the father.

9. After hearing the counsel for the parties, this Court is of the opinion that the submission made by the counsel for the appellant is without any substance. A perusal of the record shows that the appellant initially had filed a petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. In the said case, it had been pleaded by the husband that he was a divorcee and the respondent was also a divorcee. They had married on 8.3.1998 in village Kingra. Further in the petition filed under Section 125 of the Code of Criminal Procedure for maintenance by the respondent for herself and her minor daughter Amandeep Kaur, it was pleaded that Nasib Kaur respondent was the present appellant's mother's sister's daughter of his present wife Amarjit Kaur. Appellant was married to Nasib Kaur daughter of Bishan Singh r/o Dohak, Tehsil and District Muktsar in the year 1986 and from this wedlock FAO No.7287 of 2010 -6- a male child was born on 23.4.1988 and no legal and valid marriage took place between the appellant and respondent. The factum of the child from the wedlock was also denied. The factum of having sufficient income was also denied. In the evidence also, the appellant Raja Singh had stated that he is having a legally wedded wife namely Nasib Kaur and later on she was named as Amarjit Kaur and the present respondent is not his legally wedded wife. The father's name of his wife is Bishan Singh and he was married about 16/17 years back and from this wedlock a male child namely Rajinder Singh was born, who was now studying in 8th class. Amarjit Kaur was still residing with him as his wife and the marriage with the present respondent had never taken place and she was married to one Ranjit Singh and was known to him as she was mother's sister's daughter of his wife Amarjit Kaur. Mother of the appellant and mother of his wife Amarjit Kaur were real sisters. At the time of his marriage with Amarjit Kaur, the present respondent had joined the Barat and she was present at the time of Anand Karaj. He had no connection with the present respondent and Amandeep Kaur was not his daughter and he did not know who was father of this child and the present respondent was not entitled to take any maintenance from him. It was on the basis of the said evidence, the Chief Judicial Magistrate had declined to grant maintenance. Finding was also recorded that the child was born after 10-1/2 months when her mother left the matrimonial home. However, in appeal, the Addl. District Judge, Fast Track Court, Muktsar came to the conclusion that though Raja Singh had a living wife and no valid marriage could take place and the evidence showed that the Raja Singh had married the respondent and from this wedlock Amandeep Kaur was born. The child was entitled to maintenance and accordingly, ` 500/- per month was granted as FAO No.7287 of 2010 -7- maintenance.

10. The appellant is claiming the custody of the girl child and his case is based upon the allegation that the respondent was his keep. As noticed above, the appellant himself had initially filed a petition under Section 9 on 22.1.1999 of the Hindu Marriage Act, 1955 in which he had admitted that respondent was his wife and that he was a divorcee from his first wife. Thereafter, in the proceedings under Section 125 Code of Criminal Procedure he took a total somersault and denied that the child was born from the wedlock and that he had sufficient income to maintain the child, rather total denial of the marriage was made. The Court's concern is the welfare of the child which is the paramount consideration and such a father cannot be considered to be entitled for the custody of a minor girl child. The respondent mother admittedly had initiated proceedings on 13.6.2007 for fixation of maintenance to the tune of ` 5000/- under the Hindu Adoption and Maintenance Act, 1956 and for the recovery of ` 1,80,000/- as arrears of maintenance from 9.6.2004 to

8.6.2007 and for creating a charge on 1/3rd share of the land measuring 200 kanals 10 marlas. A perusal of the petition shows that even an application for injunction was filed since the respondent was apprehending that the appellant would alienate the land to avoid the payment of maintenance. The present petition filed on 19.9.2007 as correctly recorded by the Guardian Court is nothing but a counter blast to put pressure upon the respondent to withdraw the petition and an effort to get the custody of the child in order to avoid any claim for maintenance.

11. Had the appellant any love and affection for the minor child, he would not level such serious allegations against the mother of the child regarding her status and relegating her matrimonial status to a keep. The FAO No.7287 of 2010 -8- appellant had made no effort to initiate any proceeding from 8.8.1999 when the child was born till 19.9.2007 which shows his conduct. This Court under the provisions of Guardians and Wards Act, 1890 while granting custody has to see the welfare of the minor child and in the present case no effort had been made by the petitioner at any stage to contribute towards the welfare of the child and rather initially he had even denied that the child was born from any relationship between the parties. The Guardian Court had noticed that the respondent is a graduate whereas the appellant is an illiterate. A perusal of the record shows that the respondent was awarded a degree of Bachelor of Arts by the Punjabi University, Patiala on her having passed three year course in September, 1989. Record also shows that the minor is studying in a school.

12. The Hon'ble Apex Court in Mausami Moitra Ganguli Vs. Jayant Ganguli 2008(4) RCR (Civil) 551 has observed that welfare of the child would be sole consideration for determining the question of custody. In Gaurav Nagpal Vs. Sumedha Nagpal (2009) 1 SCC 42, the Hon'ble Apex Court observed that due protection of the rights of wards health, maintenance and education and the concern for the child have to be taken into consideration. Relevant paragraphs reads as under:- “35. The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the `welfare of the child' and not rights of the parents under a statute for the time being in force.

43. The word `welfare' used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The FAO No.7287 of 2010 -9- moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases.”

13. The Guardian Court has also rightly observed that under Section 6 of the Hindu Minority & Guardianship Act, 1956 in case of illegitimate unmarried girl, the natural guardian would be the mother and after her the father. In the present case, since the mother is alive and is in position to look after the interest of the minor child, it would not be in the interest of the minor that her custody should be handed over to her father who is already having a male child from his earlier marriage. The specific case of the appellant in proceedings under Section 125 Cr.P.C. was that he has no income to maintain the child and now for him to plead that he is in a position to maintain the child only goes on to show that his version changes according to the circumstances which suit him and, therefore, he cannot be taken to be a reliable person who can be given the custody of a minor girl child.

14. Accordingly, keeping in view the above facts and circumstances, finding no merit in the appeal, the same is dismissed. (G.S.SANDHAWALIA) JUDGE

18.10.2012 Pka (RAJIVE BHALLA) JUDGE