In the High Court of Punjab and Haryana at Chandigarh ...... CM No.15204-CII of 2011 and F.A.O. No.7423 of 2010 (O&M) ..... Date of decision:25.8.2011 Nidhi Jindal and others .....Appellants v. Hem Raj Jindal .....Respondent .... CORAM : HON'BLE MR. JUSTICE MOHINDER PAL ..... 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? ...... Present: Mr. Madan Gupta, Advocate for the appellants. Mr. Mandeep Kaushik, Advocate for the respondent. ..... Mohinder Pal, J. The appellants have preferred this appeal against the judgment dated 6.10.2010 passed by the learned Civil Judge (Senior Division), Patiala (exercising the powers of District Judge), Patiala, whereby the petition filed by respondent-Hem Raj Jindal under Sections 5 and 7 of Hindu Minority & Guardianship Act (for short - `the Act') read with the provisions of Guardian and Wards Act, 1890 for custody of the minor child Piyush alias Mohit, who was born on 11.3.1999 out of the wedlock between appellant No.1 and the respondent, was allowed. F.A.O. No.7423 of 2010 (O&M) [2] The marriage between the appellant No.1 and the respondent was solemnized on 17.4.1988. It is the case of the parties that due to differences between them, the marriage could not pull on. Ultimately, they parted ways after decree of divorce by mutual consent under Section 13-B of the Hindu Marriage Act was granted in their favour vide judgment dated 15.12.2001 passed by the learned Additional District Judge. The appellant No.1 left her matrimonial home along with the minor child. Respondent-Hem Raj contracted second marriage on 30.12.2001 and is having two male children from his second marriage. Appellant No.1 being the mother and natural guardian had given minor child Piyush alias Mohit in adoption vide adoption deed dated 19.1.2002 to her cousin-Arun Gupta (appellant No.2) and his wife Smt. Manju Gupta (appellant No.3) as they were having no child from their marriage. Thereafter, appellant No.1 also contracted second marriage with one Gaurav Arora who is having a child from his first marriage and appellant No.1 from her second marriage with Gaurav Arora do not have any child. The respondent did not bother to meet the minor son Piyush alias Mohit after their divorce in the year 2001. In order to harass the appellants, the respondent filed a civil suit for declaration challenging the adoption deed dated 19.1.2002 against the appellants No.1 and 2 which was later on dismissed as withdrawn on the statement of the respondent. The respondent filed petition for custody of minor son on 15.3.2007 which was allowed in his favour despite the fact that the minor son was interviewed by the Court in the presence of both the parties and their respective counsels. Piyush was 12 years old at the time of interview on 29.9.2010 and he refused to identify the respondent as his real F.A.O. No.7423 of 2010 (O&M) [3] father and showed his inclination to remain with appellants No.2 and 3 by referring them as his real parents. The trial Court allowed the custody of the minor child Piyush to the respondent and further set aside the adoption deed by declaring it null and void in spite of the fact that civil suit challenging the adoption deed filed by the respondent was dismissed as withdrawn on his statement dated 8.5.2006 (Ex.R.2). The respondent did not take any permission or liberty from the Court to file the petition and in this way the learned trial Court has wrongly assumed the jurisdiction of civil Court in granting a declaration that the adoption deed is null and void especially in view of the fact that there was no such prayer made by the respondent in the petition under Sections 5 and 7 of the Act. Even there was no pleading in this regard in the petition. Secondly, as per the definition in the Act, power and jurisdiction of the Court under the Guardian and Wards Act is limited to the extent of appointing a person to be a guardian of a minor within the scope of Section 7 of the Act. Therefore, the impugned order is patently illegal. Otherwise also, the paramount consideration with regard to the custody of a minor child is his welfare and it is in the best interest of the child that his custody is provided to his mother. But the mother has also contracted second marriage and had given the minor son vide duly registered adoption deed to appellants No.2 and 3, with whom he has been living for the last about 9 years. In the facts and circumstances of the case, appellants No.2 and 3 are the best guardian being the adoptive parents and they are properly looking after the upbringing and welfare of the minor child. He is studying in a very good school. F.A.O. No.7423 of 2010 (O&M) [4] Taking into consideration all the facts and circumstances of the case and the fact that the paramount consideration with regard to the custody of the minor child is his welfare, it is in the best interest of the minor child that his custody is allowed to remain with his adopted parents i.e. appellants No.2 and 3 as the respondent has contracted second marriage and he is having two children from that marriage, who are with him and he has also not taken the consent of his second wife to have the custody of minor child Piyush alias Mohit. In view of the above, the appeal is allowed and the impugned judgment of the learned trial Court is set aside. However, the respondent- applicant is granted visitation rights and he is free to meet the child on holidays and Sunday. August 25, 2011. (Mohinder Pal) Judge *hsp*