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The appeals were dismissed subject to the partial modifications

Sudiksha Gupta ,
  28 September 2020       Share Bookmark

Court :
Delhi High Court
Brief :
The appeals were dismissed subject to the partial modification of the order passed by the District Judge and High Court.
Citation :
Appellant:Gaurav Nagpal Respondent: Sumedha Nagpal Citation:AIR2009SC 557, 2009 (74) ALR 474, 2009(1)ALT1(SC ), 2009 (1) AWC 281 (SC ), 2009(57)BLJR795, 2009(1)BomC R58,

Guardians and Wards Act, 1890 - Section 25 & Hindu Minority and Guardianship Act, 1956- Sections 6 and 13

Bench:

Dr. Arijit Pasayat and G.S. Singhvi, JJ

Issue:

• Should the child be permitted to stay with a father, who inculcates fear and apprehension in the mind of minor, against his motherand thwarts court orders with impunity?

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Facts:

• The parties got married and the child from their wedlock was born on. according to the appellant, respondent abandoned the child but she filed a Habeas Corpus Petition before the Delhi High Court.

• The High Court dismissed the petition on the ground of territorial jurisdiction. Respondent filed a Special Leave Petition against the High Court's order dated and also filed a Writ Petition.

• This Court permitted interim custody of the 20 months old child with the appellant. The respondent filed a maintenance petition before the Delhi HighCourt and also a petition for guardianship before the District Judge

• Appellant filed his reply opposing the application on the ground that the respondent had deserted the child. The District Judge dismissed the application for interim custody holding that it would not be conducive tothe welfare of the child.

• A Revision Petition was filed by the respondent before the High Court. The High Court granted the visitation rights to the respondent but continued the interimcustody with the appellant.A contempt petition was filed for violation of the terms by the appellant.

• The District Judge, Gurgaon allowed the petition of the respondent and granted custody of the child to the respondent. Appellant preferred an appeal before the High Court on which The High Court passed an interim order staying the order of custody to the respondent but continued the order with respect to visitationrights. The appeal filed by the appellant was dismissed.

• Though the initial order of the High Court was stayed, subsequently by orderthe visitation rights were continued.

Appellant's contentions:

• The order of the High Court is clearly wrong on severalcounts.

• That the court below had not held that he suffers from any disability in his role as a father and, therefore, there was no comprehensive reason for the Court to direct custody of the child to be entrusted tothe respondent. The fact that the respondent was the mother cannot be the sole basis.

• With reference to Section 6 of the Act it was submitted that the father was the legal guardian and the welfare of the minor child lies with the appellant. He has alarge income and resides in a joint family where the minor is taken care of.

• He pointed out that the child is afraid of his mother and wrenching him from the custody of the father wouldlead to irreparable mental trauma.

Respondent's contentions:

• The child was snatched from her custody and since that date she has approached various courts toseek custody of the child and for redressal of her grievances.

The respondent got order relating to interim custody. For failure to comply with the orders of interim custody, the appellant was convicted by the High Court and sentenced to one month's imprisonment and though the order of sentence has been stayed, the order ofconviction still continues to be in force.

• The appellant's conduct in disobeying the orders passed by the courts discloses that he has no respect or any regard for therule of law.

• Negative facts have been fed into the child's mind against the respondent. It was further submitted that if sufficient time is given the child would overcome any tutored prejudice. Though, there was a claim that the relatives would provide healthy environment to the child, none of them stepped into the witness box and affidavits filed much later cannot be a substitute for the evidence in Court. The High Court took note of Section 13 of the Act which is the foundation for the custody of the child.

• It is also pointed out that the criminal cases involving offences punishable under Sections 498A, 406, 323, 506, 343 and 109 IPC are pending in the CBI Court, Patiala against the appellant and his family members. The conduct of the appellant was noted by the Local Commissioner of Police in his report who committed repeated defaults in bringing the child on various dates.

• The High Court noted that fact and came to a conclusion that the appellant had willfully disobeyed the orders of this Court and had poisoned the mind of the child against the mother.

Final Decision:

The conclusions arrived at and reasons indicated by the High Court to grant custody to the mother did not suffer from any infirmity. It was true thattaking the child out of the father's custody may cause some problems, but that isbound to be neutralized. The Court said,

"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."

The appeals were dismissed subject to the partial modification of the order passed by the District Judge and High Court.

 
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Published in Family Law
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