Gaurav Nagpal vs Sumedha Nagpal

3. A brief reference to the factual aspects leaving out the maize of unnecessary facts would suffice.

The parties got married on 14.10.1996 and the child from their wedlock was born on 15.11.1997. According to the appellant, respondent abandoned the child on 8.8.1999 but she filed a Habeas Corpus Petition before the Delhi High Court on 25.8.1999. The High Court dismissed the petition on the ground of territorial jurisdiction. Respondent filed a Special Leave Petition against the High Court's order dated 14.1.2000 and also 3 filed a Writ Petition under Article 32 of the Constitution of India, 1950 (in short the `Constitution'). This Court permitted interim custody of the 20 months old child with the appellant. The respondent filed a maintenance petition before the Delhi High Court and also a petition for guardianship before a learned Additional District Judge, Jhajjar. The same was later withdrawn and the petition was filed in the District Court, Gurgaon. Appellant filed his reply opposing the application on the ground that the respondent had deserted the child. By order dated 2.5.2002, learned Civil Judge dismissed the application for interim custody holding that any disturbance by changing the custody of the child would traumatize him and shall not be conducive to the welfare of the child and it would affect the mental balance of the child who had developed love and affection for his father and his family members. A Revision Petition was filed by the respondent before the High Court. The High Court granted the visitation rights to the respondent by order 30.9.2002 but continued the interim custody with the appellant. The visitation rights fixed by the Court were in the following terms:

The learned District Judge, Gurgaon allowed the petition of the respondent and granted custody of the child to the respondent. Appellant preferred an appeal before the High Court against the order dated 6.1.2007. The High Court passed an interim order staying the order of custody to the respondent but continued the order with respect to visitation rights. By order dated 13.7.2007 the appeal filed by the appellant was dismissed. Though the initial order of the High Court was stayed, subsequently by order dated 29.10.2007 the visitation rights were continued.

4. According to the appellant, the order of the High Court is clearly wrong on several counts. The order passed by the High Court dated 9.3.2005 convicting the appellant for contempt of court has also been assailed in Criminal Appeal No.491 of 2006. The Trial Court came to hold that since the child had remained with the appellant for a period of 7 years, he appears to have made every possible effort to obtain the custody of a minor. The learned District Judge took note of the fact that taking of the 5 child from his father's custody may adversely affect the sentiments and upbringing of the child, but at the same time the child should not be deprived the mother's home.

5. Stand of the appellant before the High Court was that the court below had not held that he suffers from any disability in his role as a father and, therefore, there was no comprehensive reason for the Court to direct custody of the child to be entrusted to the respondent. The fact that the respondent was the mother cannot be the sole basis for allowing the petition. While considering the prayer for the custody of the child, several factors including the relationship between the parties and the minor are secondary. It was submitted that the minor was abandoned when he was about one year and nine months old. Thereafter, in the garb of seeking custody several rounds of litigation were unleashed.

7. It was further pointed out that the primary focus being the welfare of the child, the respondent should have brought on record as to how with her meagre income she would be able to provide good education to the child. It was pointed out that the child is afraid of his mother and wrenching him from the custody of the father would lead to irreparable mental trauma.

8. So far as the contempt proceedings were concerned it was submitted that the appellant is not a criminal and though certain cases have been lodged against him they are related to some technical violations.

16. It is pointed out by the respondent that she was not aware that the appellant was a divorcee. The first wife was ill treated by the appellant and his relatives on account of alleged meagre dowry. She was eventually ousted from the matrimonial home alongwith a minor child. Since the appellant demanded custody of the child and threatened the respondent, information was lodged at the Police Station. On 1.8.1999 while the respondent was attending to household chores, the appellant whisked away their minor child and sent him to some unknown place at Delhi. The respondent was bundled into a car and kept in illegal confinement at the house of one Sh. Bal Kishan Dang from where she escaped on 8.8.1999. She sent telegrams to various authorities and a formal complaint was lodged with the Police Station, Sarai Rohilla alleging wrongful confinement and kidnapping of the child. In the meanwhile, the respondent's father lodged a complaint with the police at Bahadurgarh. The appellant was arrested and produced before the Court at Bahadurgarh. An application was filed before the Sub-Divisional Judicial Magistrate, Bahadurgarh, requesting the court to hold an inquiry, as to the whereabouts of the minor child. The Magistrate passed an order directing the appellant to produce the child on the next date of hearing. However, as the respondent could not reach the court in time, the 12 Magistrate granted bail to the appellant and declined the prayer for production of the minor child. Thereafter, the respondent, filed an application for issuance of a writ in the nature of Habeas Corpus before the High Court at Delhi. Despite issuance of notice, the appellant failed to produce the child. Eventually on 11.1.2000, the petition was dismissed for want of territorial jurisdiction. The respondent, thereafter, filed a Special Leave Petition before this Court, as also a writ petition under Article 32 of the Constitution. Both these petitions were dismissed by this Court, directing the respondent, to avail her remedy before the Guardian Court. The respondent, thereafter filed a petition under Section 6 of the Act, praying for the custody of the minor child. The respondent, prayed before the Trial Court that as she was the mother of a minor child and as she did not suffer from any disability, the appellant be directed to hand over the custody of the minor child. It was averred in the petition that though the appellant claimed to be the owner of various companies, he had committed various frauds.

(emphasis supplied)

(b) in the case of an illegitimate boy or an illegitimate unmarried girl--the mother, and after her, the father.

(emphasis supplied)

(emphasis supplied)

48. The appeal is dismissed subject to aforesaid modifications. Costs fixed at Rs.25,000/-.

CRIMINAL APPEAL NO. 491 OF 2006

49. Though we find that the order of the High Court does not suffer from any infirmity but taking into account the fact that we have dismissed the connected Civil appeal relating to the custody of the child, while upholding the finding of guilt for disobeying the Court's order and committing contempt of Court, we restrict the sentence to the period already undergone. 29

51. The appeals are dismissed subject to the aforesaid modifications.