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2023:PHHC:154638
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

CR-7808-2018(O&M)
Date of Decision: December 04, 2023

...Petitioner

Versus

...Respondent

CORAM: HON'BLE MRS. JUSTICE ARCHANA PURI

Present: Mr.Kanwaljit Singh, Senior Advocate with

Mr.Abhishek Sharma, Advocate

****

ARCHANA PURI, J.

The petitioner has invoked the jurisdiction of this Court under

Article 226/227 of the Constitution of India, thereby seeking

quashing/modification of the order dated 01.11.2018 (Annexure P-10) for

grant of appropriate visitation rights of the minor and also for the interim

custody to the petitioner and his parents.

Initially, petitioner- had filed a petition under

Section 25 of the Guardians and Wards Act for seeking custody of the minor

daughter. Therein, an application for interim custody was disposed of vide

impugned order, wherein, it was held that no ground is made out for

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handing over the custody of the minor child to the petitioner, but however,

visitation rights were granted to the petitioner-father.

Feeling aggrieved by the order passed by the Court below for

not handing over the custody of the minor child to the father and also

granting only visitation rights, has filed the present revision

petition.

In pursuance of notice issued, respondent made appearance.

Learned counsel for the parties heard.

The facts, as culled from the paperbook, are as follows:-

That, marriage between the petitioner and respondent was solemnized

on 23.11.2008 and the girl child was born from their wedlock in the year

2012. However, matrimonial dispute arose between the parties, as a result

whereof, the petitioner and the respondent parted ways and the girl child

continued to be in the custody of the mother. Amidst the matrimonial

discord, there is unfortunate dispute between the petitioner-husband and

respondent-wife, with regard to handing over of the custody of the minor

child.

In a custody tussle, the matter is to be decided, not on

consideration of the legal rights of the parties, but on the sole and

predominant criterion of what would be best to serve the interest and

welfare of the child. The various provisions of the Guardians and Wards

Act, makes it manifestly clear that the paramount consideration, is the

welfare of the minor child and not the statutory rights of the parents.

What is 'w
welfare of the child' depends upon several factors. It

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has to be measured not only in terms of money and physical comfort, but

also in view of the age of the child and the manner, in which, 'n
needs' can be

fulfilled, more particularly, moral and ethical aspects of the shaping of the

minor's personality. The welfare of the child depends upon the facts and

circumstances of each particular case. The legal right or the financial

affluence is not decisive, but the welfare of the minor is decisive for the

claim of the custody.

In a matter involving the question of custody of a child, it has

to be borne in mind that the question ‘w

different and distinct from the question ‘w

of the child’. Certainly, the wish/desire of the child can be ascertained

through interaction but then, the question as to ‘w

interest of the child’ is a matter to be decided by the Court, while taking into

account, all the relevant circumstances. When the couples are at loggerheads

and want to part ways, they may level extreme allegations against each

other, so as to depict the other unworthy, to have the custody of the child. In

the circumstances, unless and until, there is proven bad conduct of one of

the parent, which makes him/her unworthy to claim the custody of the child

concerned, the question can and shall be decided, solely looking into the

question as to, ‘w
what would be the best interest of the child concerned’.

A custody dispute involves human issues, which are always

complex and complicated. There can never be a straight jacket formula,

even to adjudicate the question of interim custody. However, it is fact

dependent exercise to be conducted by the Courts in the backdrop of the

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welfare of the child, while observing how the child’s interest can be

protected while custody being given to either parent.

In the pleadings, the parties to the lis have raised allegations

and counter allegations regarding bad behaviour and conduct of each other.

However, at this stage, there is no need to dilate upon the same. It should

be always kept in mind that the girl child in question was five and half years

old, at the time when the petition was filed in the year 2018. As such, it is

evident that the child is now 10-11 years old. Welfare of the child is of

utmost importance and consideration, but however, to work upon the well-

being of the child, the aspect of age of the child also weighs in the mind of

the Court. Keeping in view the same, a conscious attempt is made by the

Court not to dilate on the allegations and counter allegations, against each

other by father and mother, lest it may hamper not only the case build up by

the parents, but also, shall not be in the interest of the child. Considering

the same, also it is pertinent to mention that a compromise has been effected

between the parties and the compromise deed, coming on record is

Annexure P-2. On the basis of the same, it was pleaded at the instance of

the petitioner that the petitioner had not willingly reached the said

compromise. Rather, he was made to sign the same under constrained

circumstances and one of the recitals of the said compromise is that the

petitioner, who is father, will not claim the custody of the minor child, at a

later stage. However, this clause of compromise is not acceptable to the

father. However, at this stage, there is no need to go into the genuineness of

the settlement of terms of the said compromise, or about the compliance by

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either parent. However, the same can be appraised only at appropriate stage

of decision by learned Family Court.

Vide the impugned order, the custody of the girl child was

ordered to remain with the mother only, who is a qualified doctor. Even

though, it has been alleged that father is dependent upon the chemicals and

it was observed in the impugned order that rehabilitation as per the

certificate, coming on record, for treatment, is incomplete and therefore, no

ground is made for handing over the custody of the minor child to the father,

but however, these observations so made ipso facto, do not make the father

to be a bad man and no conclusive opinion can be made about his being

dependent upon chemicals. A man or a woman may be bad for someone in

a contextual relationship, the same does not necessarily mean that the

person is bad for his/her child. A mother or father, may be morally bad in

the societal sense, but that parent may be good for the child. The so called

morality is created by society, based on their own ethos and norms and

should not necessarily reflect in a contextual relationship between the parent

and child.

However, in this backdrop, further it is necessary to mention

that vide impugned order the custody of the child was ordered to remain

with the mother, who is a qualified doctor. Considering her avocation, it is

quite obvious that she is having independent source of earning and can very

well protect the interest of the minor child, more particularly, when the child

being of 10-11 years, is passing through the formative stage of life. It is a

matter of common knowledge that at this stage, the mother can be the best

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friend, guide and mentor for the growing daughter. Considering the same,

the girl child, at this stage, requires the assistance of her mother, more than

that of a father. Not that, the father is not having any love and affection for

the minor, but however, considering the age of the child, she is bound to

have more attachment with the mother, more particularly, when she is

already residing with the mother and therefore, no further change in the

arrangement, already existing, shall be beneficial to the child.

Also, as pointed out by learned counsel for the petitioner in the

order dated 11.12.2020 passed by the Coordinate Bench, there was some

arrangement made to facilitate interaction, between the father and the

daughter, but however, it should be noted that as observed in the order itself,

it was only a temporary arrangement, which was to be reviewed after four

weeks. In the light of the same, from the aforesaid order, no sustenance, as

such, can be drawn to assert about the custody or the visitation rights.

In the light of the aforesaid observations, the custody of the girl

child, as such, shall remain with the mother only, but however, the visitation

rights are to be considered. Vide the impugned order, petitioner-father was

given visitation rights on every 3rd Saturday of the month, to visit the Court

from 3.00 pm to 4.00 pm, in the presence of the respondent or her family

members. As now pointed out by learned counsel for the petitioner, this

arrangement was made in the Court premises, which was alleged to be not

that comfortable interaction. Subsequently, some changes were made to

make the child interact with the petitioner, while remaining away from the

Court premises. Now, the petitioner has also sought the visitation rights of

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the child to his house for having lunch etc. Even, the petitioner has asked

for more frequent visits i.e. one hour interaction with the child everyday,

which, this Court is not inclined to do so, as it is not appropriate for the girl

child. All the time, the child shall be struck between shuffling of the

custody between her parents, which will dilute the purpose of having

interaction with both parents. However, the mother, as such, has no

objection, to the minor child’s interaction with the father.

In the given circumstances, in the fitness of circumstances, it

shall be appropriate, if the girl child is allowed to meet the petitioner, her

father, twice a month. Once in fortnight, the child may visit in the company

of her mother or maternal grand-parents to some settled place like restaurant

or park, to have interaction with the father, for a period of two hours, on a

day decided by mutual consent and the arrangement for the said visit shall

be made to operate between 10.00 am to 4.00 pm. However, during the

course of interaction for these two hours, the mother or maternal grand-

parents of the child, though, shall remain at the place, where the child is

having interaction, but shall remain away from the audible limits of

interaction between the petitioner and the minor child. Apart from above,

there shall be another visit in a month in the subsequent fortnight, on the day

settled between the parties mutually for a period of two hours, to be

operative between 10.00 am to 4.00 pm, wherein, the petitioner shall visit

the house of the respondent and the respondent shall facilitate the meeting

of the child with the petitioner, for two hours, without any obstruction in

their conversation, though, she may remain, at the place of interaction.

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However, during the course of such meetings, it is expected and

desired from both the parties to extend cooperation to each other and create

congenial atmosphere for the child to have healthy interaction with the

petitioner.

In the light of the aforesaid observations, the revision petition

stands allowed and consequently, the impugned order is modified, to the

extent of the aforesaid terms.

December 04, 2023 (ARCHANA PURI)

Whether speaking/reasoned Yes

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