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Joginder Singh Chauhan & Another v/s Praveen Dulta Chauhan & Others


Company & Directors' Information:- PRAVEEN INDIA LTD . [Active] CIN = L21029WB1983PLC036326

Company & Directors' Information:- PRAVEEN & COMPANY PRIVATE LIMITED [Strike Off] CIN = U99999DL1999PTC098397

    Civil Miscellaneous Petition (Main) No. 424 of 2017

    Decided On, 21 May 2019

    At, High Court of Himachal Pradesh

    By, THE HONOURABLE MR. JUSTICE CHANDER BHUSAN BAROWALIA

    For the Appearing Parties: B.C. Negi, Peeyush Verma, Neeraj Gupta, Poonam Gehlot, Advocates.



Judgment Text

The present petition, under Article 227 of the Constitution of India has been maintained by the petitioners against the order dated 24.07.2017, passed by learned Civil Judge (Sr. Div.), Shimla, H.P. in CMA No. 103-6 of 2016, whereby the application filed by the petitioners under Section 25 of the Guardian and Wards Act, read with Section 151 of the Code of Civil Procedure for interim directions with regard to the custody of minor respondent No. 4, Master Vedant, has been partly allowed and they were held entitled for visitation rights of respondent No. 4, Master Vedant once in a week, i.e. every Sunday.

2. Briefly stating facts giving rise to the present petition are that marriage between respondent No. 1 and son of the petitioners was solemnized on 09.12.2010 and out of wedlock of their son and respondent No. 1, a male child was born on 31.08.2011. After the said marriage respondent No. 1 refused to perform household chores and her behavior towards the family was not cordial. On account of disputes between the son of the petitioners and respondent No. 1, several cases were initiated and during intervening night of 01.12.2016 and 02.12.2016, their son committed suicide, leaving behind a suicide note stating details of facts and circumstances of his death. Subsequently, a case under Section 306 of the Indian Penal Code was registered against respondents No. 1 to 3, at Police Station New Shimla, H.P. and after their arrest, minor respondent No. 4, Master Vedant, has been left all alone in the custody of relatives of the respondents. Hence, the application under Section 25 of the Guardian and Wards Act, read with Section 151 CPC has been filed by the petitioners.

3. Learned trial Court vide order dated 24.07.2017, partly allowed the application of the petitioners and held them entitled for visitation rights of respondent No. 4, Master Vedant once in a week, i.e. every Sunday. However, their prayer for custody of minor has been rejected. Hence the present petition.

4. Mr. B.C. Negi, leaned Senior Counsel appearing on behalf of the petitioners has argued that paternal grand parents after loosing their son have esteem love and affection with the grand son and at this old age they wanted to have the custody of their grand son. Mr. Negi, learned Senior Counsel has further argued that though paternal grand parents are affluent enough to invest anything for the welfare of the grand son and similar is the situation with respect to maternal grand parents, however, the paternal grand parents need the custody of the child, as he is from their blood and afterall he has to inherit them.

5. On the other hand, Mr. Neeraj Gupta, learned Senior Counsel appearing on behalf of the respondents has argued that the litigation inter se the parties, after the death of the father of the child, had made the relations of parties so strained that it is difficult for the child to accept the paternal grand parents and in these circumstances, the petition is liable to be dismissed, as the paternal grand parents have visitation rights as per the order of learned Court below.

6. In rebuttal, Mr. Negi, learned Senior Counsel has argued that it is very difficult for the paternal grand parents to meet the child in the house of the respondents and the purpose of visitation rights will only be solved, if the custody of the child is given temporarily at least to the paternal grand parents. In support of his arguments, Mr. Negi, has placed reliance upon Child Access and Custody Guidelines alongwith Parenting Plan, which are adopted by this High Court.

7. To appreciate the arguments of learned counsel for the parties, this Court has gone through the records in detail.

8. It is true that minor child has been deprived of love and affection of the father due to litigation going on inter se the couple at that time on their small matters, which is yet to be adjudicated upon by the criminal Court, where those proceedings are pending. Late Mr. Nitin Chauhan, seems to have been a strong bond with the child and with his family. Which is evident from the fact that he has ended his life, as per the averments which has come on record. The child is now studying in D.A.V. Sr. Secondary School, New Shimla and as disclosed by the parties when present in the Court, the paternal grand parents are residing in New Shimla and maternal grand parents alongwith their daughter (mother of minor) and the child are residing below Khalini. Whenever child goes to school, he goes by passing near the house of his paternal grand parents.

9. It has been vehemently contended by the parties that the mediation in this case was tried many a times, however, no fruitful purpose has been achieved. Even this Court has also tried to make the parties to arrive at some compromise and though the paternal and maternal grand parents attended the Court, but maternal grand parents seems to be annoyed for getting them involved in a criminal case.

10. This Court has considered the aspect that the child who has to get the love and affection of both grand parents, has been deprived of getting love and affection of paternal grand parents. At this stage, this Court has also considered the aspect that it is Smt. Praveen Dulta Chauhan, the mother, who is to be granted custody of the minor child, but, at the same point of time, the emotions of paternal grand parents are also required to be considered for granting the visitation rights and especially in the circumstance when they see their son in the grand child.

11. The grand son of the petitioners is eight years of age and studying in first class. This Court has taken into consideration the Child Access and Custody Guidelines alongwith Parenting Plan as adopted by this High Court and as per these guidelines, the basic principles of the Courts are to ensure that the child/children get(s) to spend equal or substantial and significant time to be showered with love and affection from both the parents irrespective of parent's conflict and efforts should be made by parties and if necessary Court should direct parties to mutually agree upon a visitation schedule to be drawn up alongwith Marriage Counselor within a maximum period of 60 days. Pending, finalization of mutual final overnight visitation agreement, an interim access has to be worked out immediately. In the present case inspite of various conciliatory/ mediatory proceedings nothing has come up, so it is now for the Court to decide about the visitation rights.

12. Now coming to the visitation rights of non-custodial parents for children above 36 months and older. The guidelines provides that, the non-custodial parent shall be entitled to weekend visitation every other weekend or every weekend one night every week. Every other weekend visitation shall begin Friday at 6:00 p.m. and end at 6:00 p.m. on Sunday. If every weekend visitation is opted then every week overnight visitation shall begin either from every Friday at 6:00 p.m., and end on Saturday 6:00 p.m. Or from every Saturday 6:00 p.m. and end at 6:00 p.m. on Sunday. It is not the responsibility of the custodial parent to provide food or shelter for the child during the non-custodial parent parent's visitation.

13. This Court has taken into consideration all the material which has come on record and the factum of pendency of the criminal proceedings against maternal grand parents and mother and taking into consideration the welfare of the child, this Court concludes that the custody of the child should remain with the mother and she should bring up the child with due care, love and emotions. She should give so much love to the child and her maternal parents should also shover so much blessings on the child that he should never feel the loss of his father in his life throughout and always see till he gets mature, his maternal grand father as his father. So, the custody of the child is required to be given to the mother, living with her parents.

14. As far as maternal grand parents are concerned taking into consideration the fact that they are prosperous enough to bestow any monitory favour to the minor child, but the paternal grand parents who had lost their son and have hopes on the grand son to come and inherit them one day, are also required to be given visitation rights to the child. Now once holding that visitation rights are required to be given to the paternal grand parents, whether granting them visitation rights in the house of maternal grand parents will meet the ends of justice? The answer is "no", because there will be a stress and atmosphere of negativism, as maternal grand parents are facing criminal trial for the allegations with respect to the death of their son-in-law.

15. In these circumstances, this Court finds that paternal grand parents are required to be given visitation rights in such a manner that they can take away the minor who is eight years of age once in a week on holiday for eight hours from morning to evening to have a feeling of oneness with their grand son. When the holidays will come, this Court leave it to the parties to decide exact time of week among themselves that in the first year the custody of the child be given to the paternal grand parents at least for seven days intermediately or continuously to get acquainted with the grand paternal parents.

16. This Court having failed to get the parties mediated, even though the mediator has made many efforts, has now to bound the parties as under:

(i) That on every weekend for eight hours grand maternal parents and mother of the child will hand over the custody of the minor to paternal grand parents, who will return the child in the evening to the maternal grand parents and mother at their residence.

(ii) Whenever there will be vacation in the school, the custody of the child will be given for one week, which mutually the parties will decide, i.e. with breaks or continuously to the paternal grand parents for the first year and for increase or decrease of the same, if need be, the parties are at liberty to approach this Court.

(iii) It is expected from the parties that they should love the

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child. Loving the child does not mean that they should do something to make the child comfortable, it means that they should do something with which the child develops and progress to become a very able, competent, smart person in the times to come. Afterall the mother, maternal grand parents and paternal grand parents have a vital role to play throughout the life of the child and till the time he gets mature enough to understand his well-being. This Court expects the parties to do best as per their intellectual, physical and monitory capacities for the welfare of the child. (iv) It is also expected that the interest of the child should be acquainted with the activities, when taken on weekends making the physical and mental growth by providing him sports articles and good books to read and to be taught, including religious epics. This Court is making these observations, as the custody of the child has been decided by the order of the Court and the parties have failed to mediate themselves. 17. With the aforesaid direction, the petition, so also pending application(s), if any, stands disposed of.
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