SHASHANK GUPTA vs DIMPLE GOGNA
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 31.07.2024 Judgment delivered on: 14.08.2024
[
+ CM(M) 1966/2024 & CM APPL. 40219/2024
SHASHANK GUPTA …..Petitioner
versus
DIMPLE GOGNA …..Respondent
Memo of Appearance
For the Petitioner: Mr. Prashant Mendiratta, Mr. Prateek Chaudhary, Mr. Luv Manan Ms. Somyashree and Ms. Himani Khullar, Advocates with petitioner in person
For the Respondent: Mr. R.K. Gupta, Advocate
CORAM:
HON’BLE MR. JUSTICE MANOJ JAIN
JUDGMENT
MANOJ JAIN, J
1. Petitioner herein is defending a Guardianship Petition filed by his wife under Section 7, 9 and 25 of Guardianship and Wards Act, 1890 read with Section 4, 6 & 6A of Hindu Minority and Guardianship Act, 1956 whereby she is seeking immediate order of custody of their minor child aged 3 years.
2. The respondent herein moved an application before the learned Family Court seeking interim custody of her elder son, primarily, for the reason that the child is very young and, therefore, he requires her constant care and parenting. The father, on the other hand, contended that his such elder son is very much attached to him and was continuously living with him for more than six months and that he had also applied for his school admission in various school situated in South Delhi. He also contended that the environment of the house of the mother was not very appropriate for his upbringing as the Maternal Uncle (Mama) of their son was having criminal antecedents, being involved in various FIRs.
3. The learned Trial Court, while considering arguments on said interim application, directed that the interim custody of elder child be handed over to his mother and, simultaneously, in order to ensure that the child is not deprived of love and affection of his father, such father (petitioner herein) has also been granted overnight visitation rights. The relevant portion of the impugned order reads as under:-
5. The parties have started living separately from each other since 17.07.2023. Prior to that, the child was under the joint parenting of both the parties. Irrespective of the arguments that advanced by the respondent that the child wants to live exclusively with him ,judicial notice can be taken of the fact that the child Master Dishank is of extreme tender age – just 3 years old. Such a young child is incapable of forming an opinion as to who is a better parent/with whom he/she should live. The court in such circumstances while exercising the patriae jurisdiction has to see the welfare of the child. Undoubtedly, constant care and supervision of the child is required and he can not be deprived of the motherly touch and care. The father even otherwise cannot devote much time to the child as he has stated that he is working at a chemist shop and is busy with the work during the day time. In so far as, the apprehension of the respondent is concerned that the brother of the petitioner is a criminal which can be detrimental to the upbringing of the child, I may note that the mother of the child/petitioner can take care of the same and it cannot be treated as the sole ground for depriving the mother of the custody of her child. She has stated that her brother is even otherwise not living in Delhi but stays at Punjab and she further undertakes that, he shall not reside in her parents house where she is staying with her child.
6. Considering the totality of facts and circumstances and most importantly the age of the child – which undoubtedly demands mothers care and supervision, I deem it appropriate to handover the interim custody of the child Master Dishank to the petitioner. However, at the same time I am conscious of the fact that a child should also not be deprived of a fathers love and affection , the respondent / father is granted two overnight visitations in a month 2nd & 4th Saturday of the month. The petitioner shall handover the custody of the child to the respondent by 11:00 am on 2nd & 4th Saturdays and the respondent shall handover the child back to the petitioner latest by 08:00 Pm on the following Sunday evening. Both the parties are directed to adhere to the visitation schedule. The respondent is directed to handover the custody of the child Master Dishank to the petitioner/mother by 03:00 Pm on 23.12.2023 in Children room, Saket, New Delhi.
Alongwith the child , the respondent shall also handover the clothes, toys etc of the child to the petitioner.
With these observations, the present application for interim custody stands disposed off.
A copy of this order be given dasti to both the parties, as
Upon request, matter be listed for filing of replication/framing of issues on 16.03.2024.
4. Feeling aggrieved, the father has invoked supervisory powers of this Court by filing the instant petition under Article 227 of the Constitution of India. His prayer is that the above order may be set aside and, in alternate, it is also prayed that the frequency of the overnight visitations be increased.
5. For the sake of convenience, the petitioner herein would be referred to as father and respondent herein as the mother.
6. The parties got married on 28.12.2016 as per Hindu rites and ceremonies. They were blessed with two children. The date of birth of the elder son is 16.08.2020 and the date of birth of the younger son is 03.04.2023. The younger son is already with his mother.
7. The Guardianship Petition in question is with respect to the elder son, who is soon going to turn four.
8. During course of the arguments, the prime concerns raised by the father can be enumerated as under: –
(i) The Maternal Uncle of their son, who is involved in 12 criminal cases, is also residing in the same house despite there being an undertaking to the contrary and, therefore, it would affect the welfare and upbringing of the child, if he is permitted to stay in the same household.
(ii) The mother has no love or affection for her such elder son. Had it been so, she would not have left him with his father when she, all by herself, left the matrimonial home on 17.07.2023.
(iii) The mother is residing in the area of Nangloi where there are no good schools whereas he (father) is residing in Yusuf Sarai area where there are better public schools and, therefore, it will be in the fitness of the things, if the custody is restored to him.
9. All such conditions have been refuted.
10. According to learned counsel for the mother, keeping in mind the tender age of the child, who is less than four, the custody should remain with her, particularly, keeping in mind the fact that the welfare of the child is the paramount consideration and being mother, she is in a better position to contribute for his proper welfare and upbringing.
11. Indubitably, in any such custody battle pertaining to a young child, the emotions run high and the endeavour of each side is to ensure that child does not go to the other spouse. Little do they realize that any child needs to be groomed by both his parents and would like their love and affection in equal proportion. This is, even otherwise, imperative to ensure the overall development and welfare of the child but since the matrimonial life of the parents herein is in disarray and has taken unpleasant turn and they are not able to live together, only one parent eventually can be given interim custody while the other needs to be compensated, other things being equal, by providing requisite visitation rights, including overnight wherever so necessary, so that the child keeps on getting the requisite love, care and affection from both the parents.
12. In the instant case, the learned Trial Court has, evidently, tried to strike much needed equilibrium by passing a very balanced order.
13. There is no dispute with respect to the fact that as per the settled legal position, between the two natural guardians, the mother is to be, usually, preferred in case of a child below five years of age.
14. Needless to say, each case has to be tested while keeping in mind its peculiar factual matrix and, therefore, any Court, while dealing with any such custody battle, should not generally feel bound by statute or by strict rule of evidence or procedure or even by precedents and the paramount consideration should be the welfare and well-being of the child1.
15. Thus, as a general rule, any such child below the age of 5 years, the custody, including interim one, has to be with the mother, unless there is a serious adverse and exceptional circumstance, disentitling her from having such interim custody or which runs contrary to the universally-accepted principle of welfare of the child.
16. In the case in hand, the concern expressed by the father is two-fold.
17. Firstly, the mother is residing in Nangloi where there are no good schools and, secondly, the Maternal Uncle of the child is having criminal antecedents.
18. Of course, the mother is presently residing in Nangloi area situated in West Delhi but there is nothing to hold that there are no good schools in West Delhi.
19. During course of the arguments, it was apprised by the learned counsel for the mother that she is trying to get her son admitted in Shah International School, which is a school of repute, situated in Paschim Vihar.
20. There may be matching or better schools in South Delhi but that cannot be said to be a governing factor and, therefore, the interim custody cannot be denied merely because of the aforesaid reason.
21. Of course, during course of the arguments, it was re-asserted that the brother of the respondent herein was involved in criminal cases, the details of which were provided to the learned Trial Court. These are mentioned in para No.31 of his written statement and would show that there are several cases of theft registered against him. It is contended that since he is the bad character (BC) of the area, his association would cause hindrance in the overall growth and welfare of the child.
22. The learned Trial Court, however, observed that such apprehension was taken care of as the mother had stated that her such brother was not living in Delhi but was staying at Punjab and also undertook that he would not reside at her parental home with her child.
23. As per the learned counsel for the father, there is apprehension that such brother continues to live with them as when one application was filed by Sh. Ravinder Gogna (father of Ms. Dimple Gogna) before a Criminal Court on 05.03.2024, it was clearly mentioned therein that his son Sh. Ankit Gogna was resident of same house i.e. House No.74, Block RZU, Nihal Vihar, Nangloi, Delhi-110041.
24. It is, therefore, contended that despite the fact that there is an undertaking, there is no intention to ensure that such child is kept away from his such Mama.
25. During course of the arguments, learned counsel for the mother contended that never ever, after the above said undertaking, the Maternal Uncle resided with them and during course of the arguments before this Court also, it was undertaken that there would not be any question of such Maternal Uncle residing with them under the same roof and in the same house. Moreover, she is now residing at Plot No. 8, Second floor, Arjun Nagar, Chander Vihar, Opposite Guru Harkishan Public School, Nihal Vihar, Delhi-110041and, there is no chance for her bother staying there.
26. There is one more important aspect of the case. If the impugned order is upset, it would create unwarranted distance between the two siblings which is not good for either of them.
27. In terms of the specific directions contained in the impugned order, the custody of the child was handed over by the father to the mother on 23.12.2023. It is claimed that there was never any intention to disobey the order and keeping in mind the specific directions, the interim custody was handed over but fact remains that despite there being express directions regarding overnight visitation, it is the mother, who has retracted and has virtually committed contempt of the Court as she has not complied with the directions regarding overnight visitations which reveals that her intentions are other than bonafide.
28. It is argued that the access of the child has completely been blocked by such mother and only one visitation took place on 14.01.2024 and thereafter no visitation has happened.
29. According to father, when the child was with him on 14.01.2024, while playing, he had a fall and, therefore, he was immediately taken to Safdarjung Hospital for first aid. It is contended that such type of incident of accidental fall can happen with any child anywhere but herein, the mother has blown such incident out of proportion and she has stopped the subsequent visitation, while being unnecessarily apprehensive. She, for her own fanciful reasons, feels that its a case of causing deliberate injury to her son by his father and, therefore, she has even moved an application before the learned Trial Court seeking modification in visitation rights. Though, the learned Trial Court is yet to take a call on such modification application, fact remains that visitation is not happening despite specific order. This, somehow, does not seem to be appropriate on the part of the mother as such visitation has neither been suspended nor modified.
30. Leaving the above aspect qua stoppage of visitation, there is nothing which can disentitle the mother from seeking interim custody. The welfare of any such child of tender age is not dependent on material resources. If father feels that he can be admitted in a better school, situated in West Delhi itself, he is most welcome to put forth a proposal. However, it will be absurd and illogical to make child travel for hours merely because father wants him to be admitted in some school in South Delhi. It need not be emphasized that fathers right, or should I say, legal right has also to give way to welfare of the child. There is nothing bigger than that and any court while exercising parens patriae jurisdiction cannot afford to sideline the same. The financial affluence and even strong emotional bonding with the other parent would not matter much in such type of matters when the child is of such tender age.
31. There is also nothing to show that such maternal uncle, who is allegedly having involvement in criminal cases, is hostile to child. He is yet to be convicted, it seems. Moreover, the mother has assured that his brother would not be staying with them and such undertaking should be enough to repel the apprehension expressed.
32. It really does not matter as to under what circumstances, such mother had to leave her matrimonial home on 17.07.2023. As already noticed above, keeping in mind the tender age of the child, his mother
becomes entitled to her primary custody and, therefore, to that extent, I do not find any reason to interfere with the order.
33. The father has been given overnight custody every alternate Saturday i.e. second and fourth Saturday of every month.
34. Keeping in mind the overall facts of the case and to ensure that the bonding between the father and his such son gets further stronger, he is also permitted visitation on every 3rd Saturday. However, such visitation would happen in day time only and the mother would drop the child at the residence of her husband at 11:00 a.m. and the father would drop back his such son at the residence of his mother by 5:00 p.m. same day.
35. This Court sincerely expects that the mother (respondent herein) would make earnest endeavor to ensure that the above said directions regarding visitations are scrupulously followed.
36. It is also made clear that if it is brought to the notice of the learned Trial Court that the directions have not been followed, the learned Trial Court would be at full liberty to modify the order and would not even hesitate in reversing the arrangement.
37. The present petition stands disposed of in aforesaid terms.
(MANOJ JAIN)
JUDGE
AUGUST 14, 2024/st
1 Nil Ratan Kundu & Anr. vs. Abhijeet Kundu: 2008 9 SCC 413
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