Lekhraj Kukreja v. Raymon (Smt)

Mahesh Chandra, J. (Oral):— By this order, I propose to dispose of Civil Revision Petition Nos. 121 of 1989 and 136 of 1989 filed by Lekh Raj Kukreja and Ms Raymon Kukreja respectively challenging the order dated 19-1-1989 passed by Ms Usha Mehra, Addl. District Judge, Delhi under Section 12 of the Guardians and Wards Act, 1890 (hereinafter called ‘the Act’).

Facts giving rise to these revision petitions are that Lekh Raj Kukreja, petitioner-husband and Ms Raymon, respondent-wife were married way back in April, 1977 and thereafter they had three children of their wedlock, son Gaurav, being the eldest of three and other two being daughter. One of daughters was given in adoption to other sister of Ms Raymon. It appears from the statement of the counsel for the parties that some Habeas Corpus petition was filed in respect of daughter Neha and son Gaurav, which was disposed of vide orders dated 10-8-1988 by a Division Bench of this court. In the said Criminal Writ Petition No. 350 of 1988 it was agreed between the parties that “the custody of Ms Neha, who is aged about 5 years will continue to be with her mother. Ms Raymon Kukreja. Shri Lekh Raj Kukreja will have right to visit the daughter. The son of the parties, Master Gaurav, who is a student of Convent of Jesus & Mary, Hampton Court, Mussoorie will be sent to that school on its re-opening so as to continue his studies. Both Shri Lekh Raj and Ms Raymon Kukreja will be free to visit him at Mussoorie in accordance with the rules of the school. They undertake not to remove their son from that school till orders from the appropriate court are obtained”. On the basis of this arrangement between the parties the said writ petition was disposed of. Apart therefrom a petition under Section 7 read with Section 25 of the Act is stated to have been filed by the husband Lekh Raj Kukreja on 13-9-1988 which was pending in the court of Ms Usha Mehra. Addl. District Judge, Delhi. Along with that petition an application under Section 12 of the Act had also been moved in which notice had been issued. It so transpired that the school was closing for winter vacations for a period of 3½ months with effect from 18-11-1988 and both the parties are stated to have gone to the school authorities and claimed custody of the child during vacation period. The custody of the child was given to the husband Lekh Raj Kukreja. Thereafter another petition under Section 12 of the Act filed by Lekh Raj Kukreja before Ms Usha Mehra, Addl. District Judge, Delhi in which notice was ordered to be issued. Against that order of notice C.M (M) under Article 227 of the Constitution of India was filed which was disposed of vide my orders dated 19-1-1989 with the directions that as per agreement between counsel for the parties the question of custody and right of respondent to take Gaurav with her for the period of vacations may be left to be determined by the lower court and accordingly the parties appeared before the lower court and the impugned order was passed after hearing the counsel for the parties.

I have been taken through the order of the lower court. The submission of the learned counsel for the husband is that father is the natural guardian of the child Gaurav, he being the male child of about 11 years of age, and as such he was entitled to the custody thereof. It is also alleged that wife is living in adultery and as such not fit to be handed over the custody of the son. As against this it is submitted by the learned counsel for the respondent-wife that for purposes of disposal of Section 12 application it is the interest of the minor which has to be supreme rather than the alleged legal right as natural guardian of the father. It has further been submitted that because of the conduct of the father he is not entitled to the custody of the child altogether more so, because he is Afghan national. It is also submitted that the father has obtained the custody of the child from school authorities in violation of the orders and undertaking incorporated in order dated 10-8-1988 of the Division Bench. It is not necessary to go into the question as to whether orders dated 10-8-1988 have been violated by the father, more so, in view of the fact that the learned counsel for the petitioner-husband had drawn by attention to a certificate issued by the hostel Superintendent of St. Zavier Hostel of the school of Master Gaurav which shows that the wife had also agreed to the child being taken by the father, as the boy had insisted upon going with the father, although of course, the correctness of this statement of fact in the certificate is disputed by the learned counsel for the wife. From the perusal of order of learned Addl. District Judge, I find that she has rightly held that it was not possible for her to go into the allegations and counter-allegations with regard to characters of both husband and wife at that stage and that she has primarily considered the welfare of the child while disposing of the application under Section 12 of the Act.

Learned counsel for the petitioner has drawn my attention to principles of law enunciated in Om Parkash v. Pushpa 1975 Raj Law Reporter 29(1). It has been observed as under:

“The provisions of the Guardian and Wards Act, and the Hindi Minority and Guardianship Act clearly point in one direction and it is this. Of a male child of 10½ years the father is the natural guardian. He does not require an appointment by any court. His personal law gives him that right. He is entitled to the custody of the child and he can enforce his right to that custody at any time. It is true that the rules regarding guardianship and custody of the minor are not rigid and inflexible. These are also subordinate to the paramount considerations of the welfare of the minor”.

It has further been observed in Smt. Sarla Shyamsunder Purohit v. Anandrai Harishanker Trivedi, 1976 HLR 731(2) as under:

“Before turning to the facts of this case, it will be appropriate to reflect upon the considerations required to be kept before the mental eye in deciding a question as regards the custody of a minor child. The overriding consideration, it can scarcely be doubted, must be the welfare of the child. Every other consideration must be subordinated to this paramount consideration for the very jurisdiction which is entrusted to the court by the society is with an eye on the welfare of the child. So often the expression “the right of the father or right of the mother” is employed. The expression ‘right’ is altogether out of place in considerations relating to the custody of a minor child unless one were to proceed on the assumption that the child is a chattel or a property of the parents”.

Ordinarily custody should go to natural guardian. However, there may be cases where is a conflict in claim of father as natural guardian of the male child and welfare of the child. Such cases are far and few. It is only in extreme case of illiteracy, poverty or delinquency of the father that his claim to the custody of child can be disregarded. Otherwise the courts would strain to reconcile the claim of the father based on his right as natural guardian of the male child with the welfare of the child, the balance tilting in favour of the welfare of the child, it being of paramount of supreme importance.

In this case, in addition to the fact that father is the natural guardian of Master Gaurav, the welfare of the child also demands that he should continue to be in the custody of his father. On my talks with Master Gaurav in my chamber, I have found that he appears to have attained discretion and he has desired to stay with the father. The child has been with the father since 18-11-1988 and it would not be appropriate to disrupt the continuity of the child even if it were for a short period of two weeks. From the perusal of the order of the Addl. District Judge, I find that sole consideration in her passing the order of giving custody of Master Gaurav to Ms Raymon for two weeks was that he would be in the company of his sister Neha. On this aspect, learned Addl. District Judge appears to have erred. Considering all these facts, I do not think it would be appropriate to give custody of Master Gaurav to the mother, as if he was chattel. It has been observed in Om Parkash (supra) as under:

“A child is not a pawn in the game of litigation between parents to be tossed from one side to another like a chattel”.

From my discussion above, the order dated 19-1-1988 of the Additional District Judge is modified to the limited extent that the custody of the child Gaurav would continue to be with the husband till the termination of the vacations.

In view of my findings above, Civil Revision No. 121 of 1989 filed by the husband is allowed while Civil Revision No. 136 of 1989 filed by the wife is dismissed.

It is submitted by the counsel for the wife that the wife should be permitted to visit the child. I consider it appropriate to grant the request and accordingly it is directed that the father would permit mother to visit the child between 4 p.m and 6 p.m in the house of Shri R.K Makhija, Sr. Advocate at W-26, Greater Kailash-II, New Delhi on 12-2-1989 and on 19-2-1989 at the house of Ms Rani Jethamalani at 28, Ferozeshah Road, New Delhi while on 26-2-1989 in the house of R.K Makhija and again on 5-3-1989 in the house of Ms Jethamalani. On 8-3-1989 the child will be returned to school.

C.P.H Petitioner allowed