IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (GWA) No. 386 of 2003. Judgement reserved on: 29.5.2008. Date of decision: 30.5.2008. Parbhat Singh ….. Appellant. Vs. Rita Devi …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ajay Sharma, Advocate. For the Respondent : None. Kuldip Singh, Judge. The father of minor daughter Diksha has filed this appeal against the order dated 15.1.2003 passed by the learned District Judge, Kangra at Dharamshala in GWA Petition No. 4-K/XXIV-2001 dismissing the petition of the appellant for custody of daughter Diksha. 2. The facts in brief are that Diksha was born to respondent on 14.9.1994 from the wedlock of the parties. The marriage was dissolved on 7.12.1996. In the divorce proceedings, compromise was effected between the appellant and respondent according to which the appellant would be entitled to the custody of daughter Diksha on attaining the age of five years, but respondent had agreed to hand Whether the reporters of the local papers may be allowed to see the Judgment? …2… over the custody of the child to the appellant earlier in case of her remarriage. It has been alleged that respondent contracted second marriage on 27.5.1997 prior to attaining the age of five years by the daughter Diksha and had refused to handover the custody of the child even after her second marriage on the ground that the child was too small. It appears the appellant again approached the court to obtain the custody of Diksha on the basis of compromise. The matter was again compromised on 19.9.1998 and respondent had agreed not to receive balance Rs.11,000/- towards permanent alimony as agreed between the parties at the time of divorce. The appellant has alleged that Diksha had attained the age of five years and he wanted to maintain her as respondent was not looking after the child properly. The respondent has no source of income and custody of Diksha is not safe in the hands of her maternal grand father with whom she was living. The appellant is in a position to maintain the child. In these circumstances, the appellant filed petition under Section 25 of the Guardians and Wards Act, 1890, for the custody of daughter Diksha, however the petition in the cause title has been wrongly shown under Section 25 of the Hindu Minority & Guardianship Act, 1956. 3. The petition was contested by the respondent and she controverted the claim of the appellant for the custody of child. The appellant filed rejoinder in which he reiterated his case. On the pleadings of the parties, following issues were framed:- 1. Whether the petitioner is entitled to the custody of minor child Deeksha, as alleged? OPP. …3… 2. Whether the petition is legally and factually not maintainable? OPR 3. Whether the petition is barred by the principle of res-judicata, as alleged? OPR. 4. Whether the petitioner is estopped by his act, conduct and acquiescence from claiming the custody of minor child? OPR. 5. Relief. The learned District Judge dismissed the petition on 15.1.2003, hence this appeal by appellant- petitioner. 4. I have heard Sh. Ajay Sharma, learned counsel for the appellant and gone through the record. None appeared on behalf of the respondent. 5. The marriage of the parties was dissolved on 7.12.1996. It appears that appellant had filed an execution petition for the custody of the child on the ground that in the divorce petition the respondent had agreed to handover the custody of the child to the appellant in case she would contract second marriage before attaining the age of five years by the child. The appellant at the time of divorce had agreed to pay permanent alimony of Rs.23,000/- to the respondent and out of which Rs.11,000/- remained due payable to the respondent. The parties entered into an agreement Ex. RA on 19.9.1998. In Ex. RW the appellant agreed not to take the custody of Diksha in view of the fact that respondent had agreed not to take balance amount of Rs.11,000/- from the appellant. The parties in the agreement Ex. RW had consented for the dismissal of execution …4… petition in view of said agreement. It is thus clear that a fresh agreement Ex. RW was executed between the parties and under that agreement Diksha was agreed to be left in the custody of respondent- mother. Therefore, respondent-mother has a right to retain the custody of Diksha. 6. PW 1 Prabhat Singh in his statement has stated that despite the order of the court he has not given any maintenance to Diksha. He has also admitted that earlier also he filed petition for the custody of Diksha, which was dismissed by the court. RW 1 Rita Devi has stated that the court has allowed maintenance of Rs.300/- per month to Diksha but that was not paid by the appellant, who has married and has two children from the second wife. Diksha is living with her mother since her birth. She is now about 13½ years old. The appellant has contracted second marriage, so also the respondent. In the total facts and circumstances of the case, the welfare of Diksha is with her mother. The learned District Judge has rightly appreciated the material on record and no fault can be found with the impugned order. No case for interference is made out. 7. No other point was urged. 8. As a result of above discussion, the appeal fails and the same is accordingly dismissed. May 30, 2008. ( Kuldip Singh ) (Hem) Judge.