Tarun Pullani v. Shilpa Pullani

1. This is an appeal under Section 19 of the Family Court Act against the order dated 07.06.2018 and order dated 23.07.2018 seeks review passed by the family court. The appellant is aggrieved by the interim order vide which the custody of the minor girl child (4 years old) born on 16.09.2014 has been handed over to the mother. 2018:DHC:5428-DB

2. The learned counsel for the appellant submits that the Family Court has failed to take into account the fact that the respondent is not physically and mentally fit to look after the child. It is submitted that the respondent is mentally sick and sometimes behaves in an abnormal manner. It is further submitted that the violent behavior of the respondent may have an adverse impact on the well being of the child. Additionally, learned counsel for the appellant contends that the mother had left the matrimonial home on 12.09.2016 and thereafter did not bother about her daughter.

3. We have heard the learned counsel for the appellant and carefully examined the order dated 07.06.2018 passed by the Family Court and the order dated 23.07.2018 passed in the review petition.

4. In this case, the marriage between the parties was solemnized on 12.12.2013. A girl child was born from this wedlock on 16.09.2014. As per the submissions made, the parties separated on 12.09.2016 when the child was with the father. Allegations and counter allegations have been made. According to the appellant, the mother is not a fit person to look after the minor as she suffers from a psychological problem and she is under treatment. Copy of the prescription has been annexed with the appeal. It is also contended that the wife behaves in a violent manner and thus is unfit to look after the child. The order shows that the wife has alleged that the husband is a habitual drunkard and uses abusive language. She has also alleged that she was often beaten by her husband and she was forced to call the police on 25.05.2015 when she was thrown out of the matrimonial home. Reading of the impugned order would show that the Family Court has carefully analyzed the submissions made. The Family Court has taken into account that the respondent/wife is a B.Com. and has a qualification in Computer Applications. She is working as a senior manager with a private firm, has a monthly income of Rs.25,000/- per month. Family Court has also assessed the income of the husband which is almost the same. The Family Court has correctly taken note of Section 6 of the Hindu Minority and Guardianship Act (HMG), 1956, which we reproduce below wherein it has been provided that custody of a minor who has not completed the age of five year shall ordinarily be with the mother. Section 6 reads as follows:-

6. Natural guardians of a Hindu minor.—The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are— (a) in the case of a boy or an unmarried girl—the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in case of an illegitimate boy or an illegitimate unmarried girl—the mother, and after her, the father;

(c) in the case of a married girl—the husband: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section— (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.—In this section, the expression “father” and “mother” do not include a step-father and a step-mother. [emphasis added]”

5. The Hon’ble Supreme Court in Gaytri Bajaj vs. Jiten Bhalla, (2012) 12 SCC 471, categorically held that while dealing with an application for custody of a minor child, the interest and welfare of the minor should be of paramount importance. The conducive and appropriate environment along with the desirability of the child are some of the relevant factors that have to be kept in mind while deciding the custody of the child. The Court while explaining the importance of the abovementioned factor held in paragraph 12- 14 as under:-

not the rights of the parents which is the determining factor for deciding the question of custody. It was the further view of this Court that the question of welfare of the child has to be considered in the context of the facts of each case and decided cases on the issue may not be appropriate to be considered as binding precedents. Similar observations of this Court contained in para 30 of the Report in Sheila B. Das v. P.R. Sugasree, (2006) 3 SCC 62 would also require a special mention.,

14. From the above it follows that an order of custody of minor children either under the provisions of The Guardians and Wards Act, 1890 or Hindu Minority and Guardianship Act, 1956 is required to be made by the Court treating the interest and welfare of the minor to be of paramount importance. It is not the better right of the either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the concerned parent to take care of the child are some of the relevant factors that have to be taken into account by the Court while deciding the issue of custody of a minor. What must be emphasized is that while all other factors are undoubtedly relevant, it is the desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the Court.”

6. In Roxann Sharma Vs. Arun Sharma, (2015) 8 SCC 318,the Supreme Court held as under:-