State Of H.P. And Ors vs Hem Singh

The appellant and the respondent tied matrimonial chord on November 25, 2007 as per Hindu rights and ceremonies. The appellant is an army officer posted in Meerut and the respondent is a teacher in Kendriya Vidyala-3, INA Colony, New Delhi. This, so-called sacrosanct alliance, alluded the couple, inasmuch as soon after the marriage, matrimonial discord surfaced, which has loosened the said knot. Both the parties blam each other for this sordid state of affairs. Over a period of time, relationship between the parties has been ruined, which is unfortunate. It is more so, as they have not been able to move on in their respective lives as well. But, what is more unfortunate is that the acrimony between the two of them, because of which they are living separately for quite some time, life of their only daughter Saesha Singh, who was born from their wedlock on October 29, 2008, is becoming more and more miserable. In the instant appeal, we are concerned with most delicate and difficult problem, namely, who should be given the custody of Saesha Singh.

It was on August 04, 2010, when the fight between the appellant and the respondent took an ugly turn forcing the respondent to leave the matrimonial house and the custody battle started from that date itself, when Saesha was not even two years of age. While leaving the matrimonial house, though the respondent wanted to take the child along, the appellant did not allow her to do so. After making certain peaceful efforts in this behalf, the respondent filed petition being GS No. 43 of 2010 under Section 25 read with Sections 10 and 12 of the Guardians and Wards Act, 1980 (hereinafter referred to as the 'Act') on August 26, 2010 for the custody and appointment of the Guardian of the minor daughter, Saesha Singh before the Principal Judge of the Family Court at Delhi at Dwarka, New Delhi. She stated in this petition that she had been in continuous possession, care and protection of the child since her birth and the respondent had no love and affection for the child. In his absence, when he is away for duty, his Orderly looks after the girl child. She also alleged that the appellant leaves for his office at 8.30 a.m. and returns back late in the evening and, therefore, he is not in a position to look after the basic needs of the child. On the other hand, the respondent had been devoting all her time to the child after coming from the school and during her duties in the school, the child is being looked after by her parents who had been frequently visiting the matrimonial house. She pleaded that for the mental well-being and proper upbringing of the child, her custody should be given to the respondent, being her natural mother and she be also appointed as her guardian. The appellant herein contested the said petition by filing the written statement wherein he took the stand that the respondent was not in a position to look after the child as there is nobody to look after her when the respondent goes for work. He also mentioned that respondent's parents are residing at NOIDA whereas she is working and living in Delhi. On the contrary, it is the appellant who had provided all necessary expenses for the maintenance of the child, and even the respondent. He even accused the respondent for invariably getting drunk on their visits to Army Officers Mess in the parties. The trial court framed the issue which touches upon the dispute that is whether the petitioner (the respondent herein) is entitled to custody of the child. Evidence was led by both the parties who examined themselves as PW-1 and RW-1 respectively. The Principal Judge, Family Court was of the opinion that the appellant is fit person to retain the custody of the child and, therefore, dismissed the petition filed by the respondent herein. The respondent challenged the order of the Family Court by filing the appeal, i.e. FOA No. 39 of 2012 in the High Court which has been allowed by the High Court. The High Court has found it appropriate to handover the custody of the child to the respondent/mother. In the opinion of the High Court, the respondent, being mother of a girl child who was even less than five years' of age at the relevant time, was better suited to take care of the child and this course of action is in the best interest of the child. The High Court, in the process, found fault with the approach adopted by the Family Judge, which had mainly relied upon the incident of August 07, 2010 to deny the custody of the child to the respondent on the ground that she had herself abandoned the child on the said date. According to the High Court, the incident as narrated by the appellant was not believable and the version of the respondent, on the contrary, inspired confidence. The respondent had stated that though she wanted to take the child with her, the appellant had snatched her from the respondent. According to the High Court, if the intention of the respondent was to abandon the child she would not have taken her clothes with her. The High Court also observed that the Family Judge had failed to consider that from the birth of the child, i.e., October 29, 2008 till the separation of the parties on August 04, 2010 (for a period of 21 months) the child remained through out with the respondent who had been attending her school as well as taking care of the child after the school hours and there was nothing on record to show that the respondent had neglected the child for a single day during that period and it was not even the case of the appellant.

We may also mention, at this stage, that since the petition of the respondent herein had been dismissed by the trial court, because of this reason, custody of the child remained with the appellant, during the pendency of the appeal in the High Court, though by interim arrangement visitation rights were given to the respondent. Since the appeal stood allowed by the High Court as per which custody of the child was to be handed over to the respondent, the High Court in turn granted visitation rights to the appellant, father of the child, in the following manner:

The instant appeal came up for arguments on November 22, 2016 when this Court directed that the child be brought to the court on November 23, 2016 so that the Court is able to interact with her. On November 23, 2016, after some interaction, it was felt that since Saesha has remained in the company of her father for all these years, influence of the appellant on the child is predominant. She had even expressed her desire to remain with the appellant. In order to have proper psychological and sociological analysis of the desires of the child, this Court deemed it appropriate to take the services of Ms. Iti Kanungo, who is Principal Counsellor attached to the Family Court, Patiala House, New Delhi. She was also requested to come to the Court on that day. As Ms. Iti Kanungo was also present, she interacted with the child for quite some time and, thereafter, informed the Court that some more interaction was needed. For this purpose, a meeting on November 26, 2016 was fixed when the child was to be produced before her at the Family Court, Patiala House, New Delhi. After interaction with the child, Ms. Kanungo has submitted her report dated December 12, 2016 stating that the child is more interested in living with her father as she does not want to change her present living environment. The report also indicates that bitter relationship between her parents discomforts her and she wants to sleep, play and study as per her own desire like any normal kid. At the same time, the report also observes that the child is in a very sensitive phase of mental and physical growth.

(b) The respondent was forcibly deprived by the custody of Saesha from August 04, 2010 when she was forced to leave the matrimonial house. As per the respondent, on that date the appellant in a drunken state gave beatings to her and threw her out of the house. The respondent had called the police. The police personnel called the military police and a complaint was lodged. The respondent had also called her parents who had come to her house from NOIDA. Her parents took hold of the child and the appellant and when they were about to leave, the appellant pulled out the child from the hands of her mother and went inside the house and locked himself. He was drunk at that time. The police suggested not to do anything otherwise appellant would harm the child. It was assured that the child would be returned to her in the morning. In any case, the respondent and the appellant were instructed to come to the police along with the child, next morning. The appellant did not bring the child and threatened that he would not give the child to her. Since then, she had been running from pillar to post to get the child back but respondent had been refusing.

(c) Within the few days, i.e. on August 26, 2010, the respondent filed the petition seeking custody of the child and for appointment of her guardian. She did not lose any time making her intentions clear that as a natural mother she wanted to have the custody of the child. It was her mis- fortune that the trial court vide its judgment dated December 07, 2011 dismissed her petition. Though, she filed the appeal against the said judgment immediately, but during the pendency of the appeal, the custody remained with the appellant because of the dismissal of the petition by the Family Court. The High Court has, by impugned judgment dated April 02, 2013 granted the custody to the respondent. However, the respondent has not been able to reap the benefit thereof because of the interim orders passed in the instant appeal. It is in these circumstances that child Saesha from the tender age of 21 months has remained with the appellant and today she is 8 years and 3 months. Obviously, because of this reason, as of today, she is very much attached to the father and she thinks that she should remain in the present environment. A child, who has not seen, experienced or lived the comfort of the company of the mother is, naturally, not in a position to comprehend that the grass on the other side may turn out to be greener. Only when she is exposed to that environment of living with her mother, that she would be in a position to properly evaluate as to whether her welfare lies more in the company of her mother or in the company of her father. As of today, the assessment and perception are one sided. Few years ago, when the High Court passed the impugned judgment, the ground realities were different.

The respondent, therefore, cannot be blamed at all, if the custody of the child remained with the appellant, after the separation of the parties.

One parent is presented as being totally to blame for all problems, and as someone who is devoid of any positive characteristics. Both of these assertions represent one parent's distortions of reality. The aforesaid discussion leads us to feel that continuous company of the mother with Saesha, for some time, is absolutely essential. It may also be underlying that the notion that a child's primary need is for the care and love of its mother, where she has been its primary care giving parent, is supported by a vast body of psychological literature. Empirical studies show that mother infant “bonding” begins at the child's birth and that infants as young as two months old frequently show signs of distress when the mother is replaced by a substitute caregiver. An infant typically responds preferentially to the sound of its mother's voice by four weeks, actively demands her presence and protests her absence by eight months, and within the first year has formed a profound and enduring attachment to her. Psychological theory hypothesizes that the mother is the center of an infant's small world, his psychological homebase, and that she “must continue to be so for some years to come.” Developmental psychologists believe that the quality and strength of this original bond largely determines the child's later capacity to fulfill her individual potential and to form attachments to other individuals and to the human community.

We, thus, find that the factors in favour of respondent are weightier than those in favour of the appellant which have been noted above. It is a fit case where respondent deserves a chance to have the custody of child Saesha for the time being, i.e., at least for one year, and not merely visitation rights.

New academic session would start in April, 2017. At this time, the process of fresh admissions in schools is underway. We are confident that the respondent shall be able to have Saesha admitted in her school where she is teaching inasmuch as wards of the teachers are accorded such preferences. Therefore, the respondent is allowed to process the case of admission of Saesha in Kendriya Vidyala, INA Colony, New Delhi and for this purpose appellant shall fully cooperate. In case she is able to secure the admission, custody of Saesha shall be handed over to the respondent by the appellant one week before the next academic session starts. Custody shall remain with the respondent for full academic year. The matter shall be listed in the month of March, 2018 for further directions when this Court would assess as to how the arrangement devised above has worked out. We, however, give liberty to both the parties to move application for variation of the aforesaid arrangement, in case consequences of the aforesaid arrangements turn out to be such which necessitate alteration or modification in the aforesaid arrangement.

It is ordered accordingly.

FEBRUARY 13, 2017.