of age, then, it would be appropriate to hand over the custody of
such minor to her mother except for the reason that mother is not
capable to ensure the welfare of the minor. It is an admitted
position on record that there is no evidence available on record to
prove that mother is otherwise unable to support the minor or to
ensure her welfare. With regard to the education of the minor girl,
the reasonings by the Family Court is not proper inasmuch as the
father is residing in a small village, namely, Jetpur-Pavi from
where minor has to travel for 30 kms. on one side to attend the
school. Thereby, total 60 kms. in a day in public transport bus, and
therefore, petitioner is right in submitting that welfare of the child
even on the count of her studies are well within the control of the
mother, who is residing in Vadodara city with her parents and they
are ready and willing to take care of the minor even in Vadodara,
where she does not need to travel for 60 Kms. in a day to attend the
school. It is also apprehended by the petitioner – wife that life of
minor - girl is in danger during such travelling to 60 Kms. per day,
as the road is crossing the river, which is dangerous and many
children had died when one such bus had fallen into the river from
the bridge. Therefore, there is substance in the petition so far as
custody of the minor is concerned, which certainly needs to be
passed on from father to the mother.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2066 of 2015
SEJAL JITENDRA BHAGAT - PATEL....Petitioner(s)
Versus
JITENDRA BABUBHAI BHAGAT - PATEL....Respondent(s)
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 23/09/2015
Citation;AIR 2016 Gujarat 13
1. Rule. Learned advocate Mr.Bhargav Hasurkar waives service of
rule for respondent.
2. Heard learned advocate Mr.Haresh Trivedi for the petitioner and
learned advocate Mr.Bhargav Hasurkar for the respondent.
3. The petitioner herein is original plaintiff - wife, whereas
respondent is her husband and defendant in H.M.P. no.1043 of
2010 pending before the Family Court, Vadodara. Such suit is
preferred by the petitioner – plaintiff being wife for restitution of
conjugal rights u/s.9 of the Hindu Marriage Act. In such suit, wife
has also prayed for several interim reliefs under the provisions of
Protection of Women from Domestic Violence Act, 2005 for
getting security and residential accommodation, whereas
maintenance u/s.24 of the Hindu Marriage Act, so also the custody
of minor daughter – Rutu, aged about 6 years at the relevant time.
4. By impugned order dated 16.10.2012 below such application at
Exh.5 for interim reliefs, the Principal Judge of Family Court,
Vadodara has while allowing the application partly, directed the
respondent to pay Rs.5000/- towards monthly maintenance to the
wife from 16.5.2009 with further direction to pay Rs.5000/-
towards cost of such application. Whereas, so far as custody of
minor daughter - Rutu of the parties is concerned, the Family Court
has by impugned order, granted temporary custody for four days
i.e. from 22.10.2012 to 23.10.2012 and again on 16.11.2012 to
17.11.2012 to the petitioner – wife with specific direction that on
the next day of such temporary custody i.e. initially on 24.10.2012
and on second occasion on 18.11.2012, the petitioner has to pass
on the custody of the minor to the respondent being her father,
since on the date of the suit, minor was with the father –
respondent.
5. If we peruse the application at Exh.5 and the impugned order, it
becomes clear that the Family Court has without application of
mind, failed to realise the basic principle of law that when there is
a question of custody of a minor girl, unless there is a specific
evidence that mother is not able to look after the welfare of the
minor girl, custody of minor girl is required to be handed over to
the mother considering the fact that the minor certainly requires the
help and support of her mother or atleast a lady, who can take care
of all type of requirements and difficulty of the minor girl, both
physical and other requirements. If we peruse the impugned
judgment, it becomes clear that the Family Court has failed to even
assign good and proper reasons for not relying upon the cited cases
before her and assigned one simple reason for handing over the
custody to the father that minor is aged about 7 years (at the time
of impugned order) and going to school, and therefore, considering
her interest and education, the custody cannot be handed over to
the mother. It is clear and obvious that this is not a cogent ground
to deny the custody of a minor girl aged about 7 years, but, now,
who is aged about 10 years to her mother, since she is in a better
position to support and ensure the welfare of the minor girl. For the
purpose, the Family Court has failed to rely upon the decision of
this High Court between Eshita, D/o.Hasmukhbhai Sitapara Vs.
Hiren Prabhudasbhai Brahmbhatt reported in 2010(2) GLR 1224.
It is pertinent to note that such principle has been approved by the
Hon’ble the Supreme Court of India in the cases of Gaytri Bajaj
Vs.Jiten Bhalla reported in (2012)12 SCC 471, Rosy Jacob Vs.
Jacob A.Chakramakkal reported in AIR 1973 SC 2090(1) and
Mohan Kumar Rayana Vs.Komal Mohan Rayana reported in AIR
2010 SC 1659. All such judgments confirm that for considering the
custody of a minor, the paramount consideration would be welfare
of the children and that more particularly, when there is a question
of custody of a minor girl, irrespective of the fact that father is a
natural guardian, the custody of minor girl is certainly required to
be handed over to the mother, who can certainly be in a better
position to maintain the daughter for her different types of
requirements. It is unfortunate that the Family Court has
considered the only issue regarding willingness of the daughter
being recorded in this case for deciding the custody and relied upon
the statement of the minor before the Family Court that she wants
to stay with her father. However, surprisingly, when this Court has
called upon the minor to ascertain her requirement and desire of
accompany between the father and mother, the minor girl - Rutu,
who is now aged about 10 years and thereby in a better position to
explain her willingness than before, has categorically disclosed
before this Court in clear terms that her father has got remarried
and living with another lady and that in fact, she does not want that
her parents to get separated, but, she wishes that they should live
together since she wants to stay with them. Wheres, so far as stay
amongst the parents is concerned, she has in categorical terms
disclosed before this Court that since she has stayed with her father
for couple of years, now, she would like to stay with her mother.
The most disturbing and alarming disclosure by the minor is to the
effect that if her father comes to know that she has disclosed the
fact of his second marriage or her desire to stay with her mother,
then, her father and new mother would beat her and had threatened
her emotionally that they may commit suicide and, thereafter, she
may not be able to have the benefit of getting love from her father.
This is nothing, but emotional blackmailing by respondent – father.
It cannot be ignored that minor girl is in custody of the respondent
– husband since the year 2010 and temporary custody of petitioner
– wife was only for four days in the year 2012. Thereby, minor was
brought to the Court by the father. For the purpose, there is a need
to safeguard the custody of the minor so also to keep watch upon
the father so as to avoid any unwarranted situation. For the
purpose, though this is a matrimonial dispute, copy of this order is
to be sent to the nearest police station to keep a watch upon the
family till this order is being executed.
6. It is settled legal position that when minor is a girl, below 16 years
of age, then, it would be appropriate to hand over the custody of
such minor to her mother except for the reason that mother is not
capable to ensure the welfare of the minor. It is an admitted
position on record that there is no evidence available on record to
prove that mother is otherwise unable to support the minor or to
ensure her welfare. With regard to the education of the minor girl,
the reasonings by the Family Court is not proper inasmuch as the
father is residing in a small village, namely, Jetpur-Pavi from
where minor has to travel for 30 kms. on one side to attend the
school. Thereby, total 60 kms. in a day in public transport bus, and
therefore, petitioner is right in submitting that welfare of the child
even on the count of her studies are well within the control of the
mother, who is residing in Vadodara city with her parents and they
are ready and willing to take care of the minor even in Vadodara,
where she does not need to travel for 60 Kms. in a day to attend the
school. It is also apprehended by the petitioner – wife that life of
minor - girl is in danger during such travelling to 60 Kms. per day,
as the road is crossing the river, which is dangerous and many
children had died when one such bus had fallen into the river from
the bridge. Therefore, there is substance in the petition so far as
custody of the minor is concerned, which certainly needs to be
passed on from father to the mother.
7. So far as amount of maintenance is concerned, petitioner is right in
submitting that pursuant to the decision in 1994(1) GLH 78,
husband is required to disclose his source of income and actual
income so as to enable the Court to pass appropriate orders of
maintenance of wife and minor. However, when wife has claimed
that husband is earning Rs.25000/- and when husband has failed to
rebut such evidence, it is submitted that amount of maintenance,
which would be generally the 1/3rd of the spouse income, the
impugned order of awarding maintenance of Rs.5000/- alone needs
to be modified by enhancing the amount of compensation as
Rs.6500/- p.m.
8. In answer to all such submissions, the learned advocate for the
husband Mr.Hasurkar has objected to consider the evidence
regarding second marriage as proper evidence since it is not proved
on record and not produce before the trial Court and since it is only
in the form of writing by some religious head, simply conveying
that respondent herein and one lady had been to him, with a
commitment that they would reside together forever, but it cannot
be termed as a marriage in the eye of law and even such disclosure
is not admitted unless it is properly proved on record, which
requires an opportunity to the husband to cross-examine the
person, who has issued such writing. However, at present,
irrespective of such issue regarding second marriage, considering
the overall facts and circumstances, when welfare of the child
being a minor girl, is well within the control of the mother, and
when even after specific arguments by the wife that husband has
not disclosed his correct income, and when husband is not coming
forward with proof of his income, there is substance in the petition
so as to modify the impugned order. However, it cannot be ignored
that there is specific disclosure by the minor that father is residing
in a house with some lady as husband and wife or in other terms,
father has got remarried. So far as custody of minor is concerned,
the learned advocate for the respondent – husband has fairly
disclosed that since Court has taken sense of the minor, and since
welfare of the minor is to be looked into, they will rely upon the
decision of the Court and would abide by the same.
9. In view of above facts and circumstances, the petition is allowed.
Thereby, the impugned order is modified in following manner. The
application at Exh.5 by the petitioner before the Family Court is
allowed with following directions:-
(1) The respondent – husband shall handover/pass on the
possession and custody of minor baby girl ‘Rutu’ to the petitioner
at the earliest and preferably within a week after managing to pass
on her personal belongings and with the school leaving certificate,
so as to enable the petitioner – mother to get her admission in
appropriate school in Vadodara;
(2) The respondent is directed not to harass or pressurise the
minor baby girl ‘Rutu’ emotionally in view of this order. To avoid
such a situation, copy of this order be forwarded to the nearest
police station to keep a watch upon the respondent till he pass on
the custody of minor girl to her mother. For this purpose, Registry
is directed to forward Yadi of this order to the Jetpur-Pavi police
station of Vadodara District even by fax through local Court;
(3) The amount of maintenance for the wife is now increased
from Rs.5000/- to Rs.6500/- only from the date of this order,
considering the fact that now the husband has to pay maintenance
for minor daughter also;
(4) Respondent – husband has to pay Rs.4000/- towards
maintenance of minor baby girl ‘Rutu’;
(5) Husband has also to pay Rs.5000/- towards cost of this
litigation.
10.In view of such facts and circumstances, the Special Civil
Application is partly allowed.
11.Rule is made absolute to the aforesaid extent.
(S.G.SHAH, J.)
No comments:
Post a Comment