FAO No. 3374 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- FAO No. 3374 of 2009 Date of decision: October , 2009 Jaswinder Singh another ........ Appellant Versus Surjit Singh .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr.S D Sharma, Sr. Advocate with Ms Bindu Goel, Advocate for the appellants Mr. B R Mahajan, Advocate for the respondent -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. This is an appeal against the judgement/order dated 13.06.2009 passed by the Guardian Judge, Amritsar, vide which the petition filed by the respondent-grand father under Sections 7, 8 and 25 of the Guardian and Wards Act, 1890, claiming custody of the minor female child, namely, Asleen Kaur, was allowed. The present petition has, therefore, been filed by the maternal grand parents of the minor child, challenging the aforesaid judgement/order. FAO No. 3374 of 2009 2 The facts in short are that on 30.05.2002, marriage between the son of the respondent and the daughter of the appellants took place at Amritsar. As per the allegations, the son of the respondent was alcoholic and used to take excessive liquor and while under the influence of liquor, he used to abuse the daughter of the appellants. Subsequently, he died on 02.11.2006. After the death, the behaviour of the respondent as well as the family members, forced the daughter of the appellants to leave her in-laws house i.e. the respondent, along with her minor female child on 13.12.2006. Thereafter, she also died on 13.08.2008 due to electric shock because of rainy water that entered into the house on account of heavy rain. While challenging the impugned order, learned counsel for the appellants submitted:- a) That immediately after the death of Surpreet Singh son of the respondent, the mother of the son namely Smt. Pushpinder Kaur wife of respondent moved an application to L.I.C. Hall Bazaar Unit-II, claiming the amount of three insurance policies nos. 130562743, 022748753 and 470268092. In the form, Ex. RW 10, she falsely stated that she being the mother of Surpreet Singh is the only surviving claimant as the deceased had left no Will, no widow and no child as the deceased was unmarried. The surety/indemnity bond Ex. RW 10/1 was executed by Shri Arminder Singh son in law of the respondent in this behalf. The above named Pushpinder Kaur, wife of the respondent i.e. paternal grand mother got the money of the insurance claim of the above three policies by defrauding the L.I.C., as well as Sumeet Kaur and her child. Sumeet Kaur wife of Surpreet Singh, who was alive at that time, made her claim of these policies before the L.I.C. When the FAO No. 3374 of 2009 3 fraud was revealed, a criminal case u/s 420/463/464/465/468/471 IPC was registered vide FIR No. 27 of 2008 in the Court at Amritsar against the respondent-paternal grand father, grand mother and son in law. The L.I.C. has also filed civil suit No. 113 dated 23.02.2008 against Smt. Pushpinder Kaur mother and Arminder Singh, brother-in-law of Surpreet Singh deceased, for recovery of Rs.5,75,882.00 with interest of Rs.12672/- @ 18% per annum. The ground pleaded in the aforesaid suit by the L.I.C. for the said recovery is that the above named Pushpinder Kaur and her son-in-law Arminder Singh fraudulently took L.I.C. amount of the policies but later on when Sumeet Kaur wife of Surpreet Singh learnt about the fraud, she also submitted her claim of the policies being widow of Surpreet Singh. The above suit is pending in the Court of Shri Roshan Lal Chohan, Civil Judge (Senior Division), Amritsar. From the demonstration of the above facts, the respondent has no moral right to claim the custody of the child because fraud and justice never dwell together. b) That the respondent is in the habit of not stating truth. For example, in the petition, he has falsely stated that his son Surpreet Singh died because of misbehaviour of Sumeet Kaur whereas the respondent has filed a suit against ICICI Bank and in the said suit he has stated that his son died due to blockage of food pipe and could not be saved due to timely medical treatment. The fact is that he died due to intoxication. Still further, in a letter dated 14.05.2007, written by Pushpinder Kaur mother of Surpreet Singh and the wife of the respondent to the Branch Manager LIC Office Unit No. 11, Amritsar, as EX RW10/5, the cause of death of Surpreet Singh was written as 'due to food poisoning'. FAO No. 3374 of 2009 4 c) In the suit filed by the respondent paternal grand father against the ICICI Bank, he filed replication, stating therein that he is a heart patient and is suffering from Parkinson disease. His wife has got arthritis problem. There is no one to look after the plaintiff and his wife in this old age. d) The respondent has further been taken a contradictory stand qua his and his wife's health. It is his own case in the suit filed by the respondent against ICICI Bank Prudential Life Insurance Co. Ltd., he has admitted that they both i.e, he and his wife are totally helpless and suffering from serious diseases whereas, in the petition under Section 7, 8 and 25 of the Guardian and Wards Act, it is mentioned that the respondent and his wife are perfectly well with no disease. e) The respondents and his family members are interested to do away the share of the minor child which she is having in the estate of her father deceased Surpreet Singh and her mother Sumeet Kaur and also which she got from the appellants i.e., maternal grand parents. The grand mother namely Pushpinder Kaur withdrew Rs.2,86,000/- of the insurance policies of Surpreet Singh, father of the child by falsely stating that Surpreet Singh left no will, no wife and no child. In this regard, FIR under Section 420 etc. IPC is pending against Pushpinder Kaur, her husband and her son in law for conniving with each other to defraud the insurance Company. The LIC has also filed suit for the recovery of this amount along with interest by pleading that Pushpinder Kaur with the connivance of her husband and son in law withdrew the above said amount by defrauding the LIC. Pushpinder Kaur mother in law has filed written statement in this suit in which she till today is claiming that she is the only one who is entitled to the above entire amount of FAO No. 3374 of 2009 5 Insurance of Surpreet Singh. f) A will of the deceased, who was 27 years of old at the time of death, has been alleged to have been executed in favour of the respondent. It is a strange piece of document. The deceased was a young man at the time of execution of will and a young man of that age does not make a will and that also in favour of a person, who is much much older than him. It is surrounded by suspicion and has been obviously fabricated to deny the minor child of her property. Learned counsel for the respondent, on the other hand, denied the above allegations and submitted that the paternal grand parents continued to pay fee even when the child was removed from their custody. It was further stated that the minor child has been duly insured by the respondent and in fact had taken insurance policies in the name of minor child as well as they have deposited the amount in various schemes in the name of the minor child, as the respondent's family was worried about the minor child and referred to various Fixed Deposit Receipt in the name of the minor. Learned counsel for the appellants, on the other hand submitted that Rs.80,000/- was deposited by the appellant in the Punjab and Sind Bank for 10 years in the name of Asleen Kaur. Appellant No. 1 deposited yet another amount of Rs.59,000/- in FDR A/c for 30 months in the name of Asleen Kaur vide receipt in the ICICI Home Finance Ltd., Rs.60,000/- was deposited in Oriental Bank of Commerce, Amritsar in the name of Asleen Kaur for 3 years. Yet another amount of Rs.25,000/- was deposited in the name of Asleen Kaur by the appellant for 15 years in the post office Amritsar. Similarly, another amount of Rs.85,000/- was deposited in the name of Asleen FAO No. 3374 of 2009 6 Kaur by the appellant in ICICI Prudential Insurance Company for 3 years in FDR. It is further stated that appellant No. 1 got insurance policy of Rs.3,60,000/- and Asleen Kaur has been made as nominee in the policy. Further, appellant No. 2, the maternal grand mother of the child, got Life Insurance Policy of Rs.1 lac in which Asleen Kaur is the nominee. Still further, maternal grand mother appellant No. 2 of the child got another insurance policy of Rs.3 lacs in which Asleen Kaur is the nominee. Learned counsel for the appellants further submitted that vide order dated 16.07.2009, the Consumer Court, Amritsar granted Rs.960,000/- as compensation of the death of the mother of the child and the appellant has challenged the said order claiming the enhancement of the amount because the mother of the child was doing BDS. This amount exclusively belongs to the child and as soon as the appellant gets the said amount which will be deposited in FDR a/c in the name of Asleen Kaur on the next day. It is unfortunate that a news appeared in the Dainik Bhaskar dated 19.07.2009 to the extent that the respondent had made a claim by saying that since the custody of the child has been given to him by the trial court, therefore, he is entitled for the said amount. Learned counsel for the parties were heard at length. The voluminous record has been gone into as pointed out by the learned counsel for the parties. From the entire evidence, the following few facts have emerged:- i) presently, the child is living happily with the appellants, who are the maternal grand parents; ii) the respondent and his wife do not keep good health. Although the factum of their not keeping good health was FAO No. 3374 of 2009 7 denied, learned counsel for the respondent was not able to deny the replication filed by the respondent in the suit filed the ICICI Bank, wherein a specific plea was taken that he is suffering from Parkinson diseases and his wife had Arthritis problem. iii) The wife of the respondent i.e. paternal grand mother submitted an application to the Manager LIC and filled a form wherein she stated that her son was not survived by any other legal heir and concealed the details of 'relations' against a specific column provided for the same in the Form. Even the column of widow or widows was left blank. iv) Criminal case is pending against the respondent. Even, LIC has filed a suit for the recovery of the amount which was allegedly withdrawn by the respondent by misleading. The Hon'ble Supreme Court in the case of 'Nil Ratan Kundu and another v. Abhijit Kundu' 2008(3) Apex Court Judgements 232 (SC), while granting the custody to the maternal grand parents observed:- “56. In our judgement, the law relating to custody of a child is fairly well settled and it is this. In deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a humane problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount FAO No. 3374 of 2009 8 consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens partiae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable consideration. If the minor is old enough to form an intelligent preference or judgement, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor.” The Hon'ble Supreme Court in the case of 'Gaurav Nagpal v. Semedha Nagpal'-(2009)1 SCC 42, while giving paramount importance to the welfare of the child, which should include moral and ethical values, besides ethical well-being,observed as under:- “50. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The Court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mausami Moitra Ganguli case, the Court has to give due weighage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings, but over and above physical comforts, the moral and ethical values have also be noted. They are equal if not more important than the others. 51. The word 'welfare' used in Section 13 of the Act has to FAO No. 3374 of 2009 9 be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weight with the court as well as its physical well-being. Though the provisions of the special statues 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 arising in such cases.” In view of the above, I deem it just and proper to decide the issue with respect to the custody of the minor child keeping in view her welfare and interest paramount. The appellants are maternal grand parents. Whereas, the respondent is paternal grand father. The respondent is 65 years old and his wife is 63 years old. Both stated themselves to be suffering from ill health. The conduct of the wife of the respondent i.e. paternal grand father vide which she concealed the details of the surviving widow and minor child of deceased Surpreet Singh, while filling the form for LIC and withdrew the money, speaks for itself. A criminal case is stated to be pending against paternal grand parents. The appellants, on the other hand, are still 52 and 50 years respectively. Both are educated and the appellant No. 1 was running a Hotel, besides having transport business. The appellants' only son is pursing MBA and is not married as yet. The parents of appellant No. 1, who are 72 years of age are also residing with them. Moreover, the child has been residing in the house of the maternal grand parents since the year 2006. Even the Guardian Court vide order dated 01.05.2009 has recorded as follows:- “The Court has interviewed the child yesterday and found its FAO No. 3374 of 2009 10 opinion that the child studying happily while residing with the respondents and she is being looked after properly which was clear from her health, activities and her behaviour.” The appellants are providing proper and best amenities of life as well as proper education to the child. Taking into account the entire scenario as presented and obvious from the documents, arguments, pleadings as also the child, who was present in the court looking totally content and happy in the lap of the appellant grand mother, it is best that the child is left in the company of the appellants. The court shall have to give due weighage to the favourable surroundings, the moral, ethical values and welfare of the child, besides the physical well being. It appears from above that the atmosphere and surroundings in the house of maternal grand parents are more favourable for the bringing up of the child. The maternal grand parents, who are educated, brought up their daughter, to be a BDS doctor. There is no doubt that these very parents will now bring up the off spring of their only daughter who is no more, with equal love and affection along with good education, moral and ethical values. Moreover, even age is on their side. On 01.04.2007, the child was admitted in Spring Field School, Amritsar. The child is doing well. She had obtained first position in the LKG and IInd position in Nursery. I am, therefore, of the considered view that it would be fit and proper in the present facts and circumstances of the case to allow the appellants to continue to keep the custody of child. Accordingly, the judgement dated 13.06.2009, passed by the Guardian Judge, Amritsar is set aside to the extent vide which direction has been issued to the appellants to hand over the custody of minor child to the respondent-petitioner. Now, the FAO No. 3374 of 2009 11 custody of the minor shall remain with the appellants and they are appointed as the legal guardian of the person and property of the minor. With respect to the remaining terms and conditions as imposed by the Guardian Judge, shall remain as they are and the visiting rights now shall be granted to the respondent in terms of the same order, as they were granted to the appellants vide order dated 13.06.2009. Allowed in the above terms. (Nirmaljit Kaur) Judge October 14, 2009 mohan