FAO No. 2155 of 2010 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 2155 of 2010 (O&M) Date of decision: May 06, 2011 Naveen Neb and others ... Appellants v. Rishu Arora alias Rishu Neb .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Sudershan Goel, Advocate for the appellants. Mr. Deepak Sibal, Advocate for the respondent. ... Rajesh Bindal J. The father and paternal grand parents of the child, namely, Aditya Partap Neb, whose custody is involved, have filed the present appeal challenging judgment dated 22.3.2010, of the learned Civil Judge (Senior Division), Gurdaspur in an application filed by the respondent- mother under the Guardians and Wards Act, 1890 (for short, `the Act'). Briefly, the facts are that marriage of appellant No. 1 was solemnised with the respondent on 9.12.2001. A male child, namely, Aditya Partap Neb was born out of the wedlock on 15.1.2004. Initially, the parties lived at Ludhiana. The parents of the father are based at Batala. Later on, parents of the child shifted to London in June/July, 2006. The child at that time remained with the grand parents. He was taken to London on 27.6.2008 by the mother, but was brought back by the father on 21.8.2008. Almost since then, both the husband and wife are residing separate, though in London. It is claimed by the mother that after the child was brought back by the father from London, though she visited India number of times but the paternal grand parents of the child did not allow FAO No. 2155 of 2010 [2] her to meet him. She filed a Habeas Corpus petition in July, 2009, which was disposed of with liberty to her to file petition under the Act. The same was filed in August 2009, which was decided in favour of the mother by the learned court below vide judgment dated 22.3.2010. It is this judgment which is impugned in the present appeal by the father and paternal grand parents of the child, the respondent being the mother. Learned counsel for the appellants submitted that paramount consideration in any case regarding custody of a child is always his welfare. The learned court below has totally ignored these principles. Without recording any finding thereon, it directed the appellants to hand over the custody of the child to the respondent. The child is happily residing with the appellants. It is not a case where the custody of the child was to remain with the party which has approached the court. Rather, it was a case where the custody was to be transferred. The child mentally has adjusted with the grand parents as almost from the very beginning he is living there. The court as such has not found any fault in the manner the child was being brought up by the appellants. He further submitted that the mother now is seeking custody of the child, but she has in fact never spent any quality time with the child. During the period when the parents of the child were residing in London, the mother had been visiting India but she never stayed with the child. However, he did not dispute the facts, as narrated by the mother in her affidavit dated 6.12.2010 filed vide CM No. 31216-CII of 2010 showing the period during which the respondent visited India. He further submitted that though the child had been brought back to India on 21.8.2008, but a petition for Habeas Corpus was filed by the mother only in July, 2009 about one year later. The mother did not come to India immediately. Till such time the petition for custody was filed, she made no efforts to even see the child what to talk of seeking his custody. Psychological evaluation of the child as well as parents and grand parents may be got done to see, where the welfare of the child lies and where he wants to live. He further argued that in case the custody of the child is given to the mother, she would definitely take him to London. FAO No. 2155 of 2010 [3] The father even if granted visiting rights will not be able to enforce the same in London, as there is no reciprocity for enforcement of the decree between the two countries. Even in London, the mother is not having any permanent home. On account of her job requirement, she has to regularly go to various other foreign countries and in her absence, there would be none to take care of the child. In support of his submissions, reliance was placed upon Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112 and Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673. On the other hand, learned counsel for the respondent submitted that from the very beginning, the case of the father was not that he was seeking custody of the child. He only claimed that custody of the child be given to his parents. It is a case where though parents of the child are alive, the mother is crying hard to seek custody of the child and is in a position to groom him in a proper environment, but still the claim is sought to be made that his custody be retained only with the grand parents. The mother does not want to state that grand parents are not bringing up the child in a proper environment or not providing him good education, but on the other hand is the natural mother who is crying hard for his custody. Considering the fact that grand parents are old; the grand mother having suffered a heart-attack; there is no other lady member in the family and the environment there is not conducive for all around growth of the child, the custody be given to the mother. Though initially the stand of the father was that custody of the child should remain with his parents, however, after the decision of the petition by the learned court below, the father filed affidavit dated 30.8.2010 before this court and also an application seeking permission to lead additional evidence submitting that he will shift to India with his bag and baggage in August, 2010 and is planning to settle in Gurgaon. He will keep the child and get him admitted in a good school at Gurgaon. He has even made a survey for residential accommodation as well as the school in which the child is to be admitted. Referring to the aforesaid stand sought to be taken by the father, learned counsel for the respondent submitted that it was a false plea sought to be raised. Nine months have passed even after FAO No. 2155 of 2010 [4] the cut-off date suggested by the father, but till date he has not shifted. All efforts are being made to delay the decision of the present appeal only with a motive that during the interregnum, the child grows up and then a plea could be taken that the child having lived for quite long with the grand parents, he should not be disturbed now, whereas presently he is merely seven years plus. Even during the pendency of appeal before this court, during vacations/holidays, the child had been living with the mother and he was quite happy as any child would be in the company of his mother. Further submission was that efforts were made to settle the matter in the Lok Adalat in the court below for which the mother readily agreed for the sake of the child, but the father flatly refused. Rebutting the contention regarding the place where the child had been living ever since his birth, it was submitted that after the child was born, he lived at Ludhiana where his parents were working. He was left at Batala only in the year 2006 when the parties went to England. Till June, 2008, when the child was taken to England, the mother visited India seven times and remained with the child. During this period, there were no differences in the family. When the child was taken to London in June, 2008, it was with an intention to provide him education there. He was even admitted in a school, but abruptly the father brought him back to India and left with the grand parents. This was one of the major cause for differences and from the end of August, 2008, the parties are living separate. Initially instead of going to the court, the mother made all efforts to settle the dispute within the family, but when there was no result, the doors of the court had to be knocked twice, firstly Habeas Corpus petition was filed and thereafter petition for custody was filed under the Act, which has been decided in favour of the mother. The child is of tender age. It is not a case where from the very beginning he has not seen the mother, rather, initially he was with the mother. From June to August, 2008 also, he remained with the mother. Even during the pendency of appeal before this court, on account of interim custody having been granted to the mother, the child happily lived with her. Even if the mother takes the child to London, there would be no problem considering the fact that the father FAO No. 2155 of 2010 [5] is already living in London. He can meet the child there. The mother shall abide by any direction given by this court in that regard. Even during vacations there, the child will be coming to India where he can even meet his grand parents. In support of his submissions, reliance was placed upon Vikram Vir Vohra v. Shalini Bhalla, (2010) 4 SCC 409. Heard learned counsel for the parties and perused the relevant referred record. As is evident from the facts of the case, as noticed above, it is a case where primarily the dispute regarding custody of the child is between the paternal grand parents and the natural mother. There is no doubt that both will shower their full love and affection on the child and will not compromise in any manner for providing him good education. The bonafides of both cannot be disputed at all considering their relation with the child. However, still this court is to consider whether in the given facts, the mother is entitled to the custody of the child in comparison to the grand parents. In fact, the learned court below has already found the claim made by the mother to be more genuine as compared to that of the grand parents. A fact, which is required to be noticed is that though during evidence before the learned court below, the stand of the father of the child was that welfare of the child is very safe in his custody through his parents, however, after the learned court below directed that custody of the child be handed over to the mother, an affidavit was filed by the father on 10.5.2010 stating therein that he is employed as Wholesale Import Merchandiser in a company known as Innocence Clothing Ltd. in UK. This company is having operations in several countries including India. In terms of the arrangement with the employer, the father will be shifting to India towards the end of August, 2010. From the session commencing 2011, the father proposed to shift to Gurgaon along with the child and get him admitted in a good school there for which even certain preliminary enquiries had also been made. In addition to that, an application under Order 41 Rule 27 CPC was also filed by the father, inter-alia, seeking to bring the aforesaid facts on record as additional evidence. FAO No. 2155 of 2010 [6] The fact, which is not in dispute, is that till date the father has not shifted to India. Meaning thereby it was merely a stand sought to be taken by him on papers to justify his case for retaining the custody of the child. Another fact which is not in dispute, is that both the parties were having cordial relations till such time they started living separate towards the end of August, 2008. They had shifted to London in June/July, 2006. The child was taken to London in June, 2008 by the mother. He was even got admitted in a school there. Though his visa was for a period of six months but the stand sought to be taken by the mother was that in fact he was to live with the family in UK and for that they would have got the formalities completed. The stand of the appellants is that the mother had no love and affection for the child as she did not take care of him while they were living in India till June/July, 2006; when they shifted to London or even thereafter till such time Habeas Corpus petition was filed. The factum of various visits of the mother to India from October, 2006 onwards, as stated by her in affidavit dated 6.12.2010 is not disputed by the appellants. It clearly shows that after the mother of the child left for London in June/July, 2006, she visited India seven times in a span of two years. As is evident from the affidavit of the father dated 23.11.2010, on three occasions even he was also in India during that period. To state that the mother would not have lived with her son during this period cannot be believed as such unless otherwise proved and there is no material on record except the oral submissions made by learned counsel for the appellants to record any such finding. In fact, during the period when the parents of the child were in India, they must have lived together as a family. Considering the age of the child, in my opinion, it will not be difficult for him to adjust in a changed atmosphere, if any. The contention raised by learned counsel for the appellants that the child is disturbed whenever he comes back after brief stay with the mother is merely to be noticed and rejected. As far as welfare of the child is concerned, in my opinion, it FAO No. 2155 of 2010 [7] would be more appropriate in case he lives with the mother. Getting education at any good place as compared to Batala, especially in London, where the mother is residing, will certainly be much better. It is generally seen that people go abroad for the purpose of education. Another reason therefor is that paternal grand parents are old. In competitive world, a child may have to be involved in many extra curricular activities as well in addition to education after school time, which may or may not be available at Batala. Fortunately, in the present case, the mother as well as father of the child, though at present are living in England on account of their job requirements but have roots in India. Parents and other family members of both of them are residing here. They will certainly be visiting India. Merely because there are certain differences between the parents of the child, his natural growth should not be made to suffer. He should have love and affection not only of the mother but even of the father and also his grand parents. Whenever the mother visits India and brings the child with her, it would be appropriate if he is permitted to spend some time with his grand parents as well. The father should also spend time with the child, may be in London but depending on schedule and convenience of the child, considering his school timing or other extra curricular activities. Both the parties being well educated have not indulged each other in any other litigation on account of their matrimonial dispute except fighting for custody of the child. This court can hope and expect that in case the father meets the child in a cordial atmosphere, it may bridge the gap between the parents and unite the family again. For the reasons mentioned above, I do not find any merit in the present appeal. Accordingly, the same is dismissed. The accompanying applications also stand disposed of. ( Rajesh Bindal ) Judge May 06, 2011 mk