IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 3353 of 2007 Date of Decision : April 11, 2008 Ravi Kumar .....Appellant Versus General Public and another .....Respondents CORAM : HON'BLE MR JUSTICE T.P.S. MANN Present : Mr. Balbir Singh, Advocate for the appellant. T.P.S. MANN, J. Petition filed by the appellant under Section 25 of the Guardian and Wards Act for the custody of his minor son Jaskaran Singh was dismissed by learned Guardian Judge, Nawanshahr vide order dated 9.2.2007. Aggrieved of the same, he has filed the present appeal. The appellant was married to respondent No. 2 on 14.12.2000. From this marriage, Jaskaran Singh was born on 1.3.2002. The marriage of the appellant with respondent No. 2 ended in divorce in September, 2005. Later on, respondent No. 2 got re-married. However, Jaskaran Singh had been living with his mother, i.e. F.A.O. No. 3353 of 2007 -2- respondent No. 2 before the divorce was effected and even after the latter re-married. The appellant claimed the custody of the minor child on the ground that respondent No. 2 had been disinherited by her parents from their movable and immovable properties and so also her second husband by his parents. The appellant had sufficient means of income and could provide good quality education to bring up the minor child. His family members had great love and affection towards his minor child whereas the present husband of respondent No. 2 had no such love and affection towards the child. Both of them had no source of income to maintain and take care of the child. Respondent No. 2 had pleaded that the appellant was unable to keep and maintain the child. Ever since her divorce from the appellant, neither he nor his family members had turned up to see the minor child nor they had ever enquired about his health, studies and welfare. Learned lower Court held that ever since the separation between the parties, it was respondent No. 2, who had maintaining the child and bearing all his expenses. Further that the appellant earlier had also gone abroad and again he was away to Dubai and doing work there. He had not paid even a single penny for the maintenance of the child, whereas respondent No. 2 had not claimed any maintenance, which meant that she was having sufficient resources to provide basic F.A.O. No. 3353 of 2007 -3- necessities to the child. Moreover, she being the mother was providing love and affection to the minor child. Learned counsel for the appellant submitted that the appellant has sufficient means of income and can provide good quality education to the minor child and bring him up in good society. He has his father, mother, unmarried sister and younger brother and all of them have great love and affection towards the child. Further that respondent No. 2 has no source of income to maintain and take care of the minor child. She has already re-married and her husband Harjinder Kumar has no love and affection towards the child, being his step- father. Therefore, a case was made out for giving the custody of the minor child to the appellant. When the petition was pending before the learned lower Court, it was proved on the file that the appellant had gone abroad, i.e. Dubai for the purpose of working there. The contract of employment entered into by him was produced in evidence. The appellant is still putting up in Dubai and working there. He has not cared to file the present petition in person and has, instead, authorised his brother Parveen Kumar to file the appeal. Special Power of Attorney, executed by the appellant in favour of his brother Parveen Kumar, has also been attached with the appeal and said Parveen Kumar has thereafter engaged the counsel for the purpose of filing the appeal. The Power of Attorney, does bear the signatures of appellant himself but it appears F.A.O. No. 3353 of 2007 -4- that his signatures were obtained earlier on blank Power of Attorney and after the decision of the learned lower Court, it was utilised for filing the appeal. However, as the copy of the Special Power of Attorney has also been attached and Parveen Kumar, being Attorney of the appellant, has signed the same Power of Attorney, besides their being mention in the memorandum of parties that the appeal is being presented through his Special Power of Attorney Parveen Kumar, it is clear indication of the fact that the appellant is well entrenched with his job/occupation at Dubai and is not in position to visit his native place. His visit to India could only be for the purposes of staying for a short time, i.e when being sanctioned short leaves by his employer. On April 09, 2008, this Court had enquired from learned counsel for the appellant as to whether the appellant was in Dubai or had returned to India permanently. The Court was informed that the appellant had since returned and intends to stay in India. The hearing was adjourned for today with a direction that let the appellant be present in person, besides producing his passport. Inspite of the clear directions, the appellant has not come present. It confirms the doubt in the mind of the Court that the appellant does not intend to stay in India and wants to return to Dubai where he has been working since long. As is clear from the impugned judgment, respondent No.2 has not sought any maintenance from the appellant for bringing up the minor child. Thus, it cannot be said that respondent No. 2 has no F.A.O. No. 3353 of 2007 -5- source of income to maintain and take care of the minor child. Mere fact that respondent No. 2 has re-married Harjinder Kumar is no ground to grant custody of the minor child to the appellant. She still has a better right to keep the custody of the minor child. The paramount consideration in such like cases is the welfare of the child. Balance is tilted heavily in favour of respondent No. 2, who, being natural mother of the minor child, can look-after the child in a more congenial atmosphere. In view of the above, there is no merit in the appeal and the same is, accordingly, dismissed. ( T.P.S. MANN ) APRIL 11, 2008 JUDGE satish Whether to be referred to the Reporters : YES / NO