Sheetu Kaul @APPELLANT@Hash Major Anirudh Singh

Appellant through the medium of instant appeal is seeking quashment of order dated 24.04.2018 passed by the learned Additional District Judge

(Matrimonial Cases), Jammu in case titled Sheetu Kaul v. Anirudh Singh (hereinafter for short as “impugned orderâ€) by virtue of which, prayer

of the appellant for interim relief has been declined, and allowing the appellant to continue with the custody of the minor daughter till final decision

of the case before the trial Court.Â

From the appeal, it emerges that appellant and respondent married on 31.10.2009 as per Hindu Rites and Rituals at Kota, Rajasthan, Out of the

wedlock, a female child, namely, Kanishka Sisodia alias Kiwi was born on 07.07.2013, who is, as on today, less than 5 years of age. Respondent

herein filed petition under Section 13 of the Hindu Marriage Act before the court of learned District Judge, Family Court, Hisar. In addition, he has

also filed complaint under Section 497 of IPC alleging adulterous relation of the appellant with one Nikhil. Ultimately, when he did not produce any

evidence before the said Court, the same stands closed. It is contended that respondent by playing fraud, pressure and undue influence at Hisar over

the appellant got her agreed to sign the joint petition under Section 13B of the Hindu Marriage Act before the District Judge, Family Court, Hisar. It is

contended that as soon as she came out of the undue pressure and influence realized that fraud is being played with her by the respondent, she

withdrew the consent for mutual divorce/joint petition. Thereafter, appellant filed petition under Section 12 of the Jammu and Kashmir Protection of

Women from Domestic Violence Act, 2010 and learned City Judge, Jammu vide order dated 01.06.2017 directed respondent to handover the custody

of the minor daughter to the motherappellant herein. Respondent filed objections but did not produce the minor daughter. Feeling aggrieved of order

dated 01.06.2017, respondent filed Revision Petition before the Principal District Judge, Jammu. Appellant appeared before the learned Distt. Judge ,

Jammu and apprised about the legal and factual position and ultimately a compromise was reduced into writing by the parties in which custody of the

minor daughter was mutually settled on rotational basis and pursuant to said compromise minor daughter was handed over to the appellant mother on

03.10.2017. It is contended that since 03.10.2017, minor is living with mother-appellant. It is also contended that as per the compromise deed

entered between the parties, the respondent herein had to take her back on 03.01.2018 but he did not come forward because of job in the army and

during her stay with the minor, the minor made number of such revelation that the appellant or for that any mother would have not returned the minor

girl back to respondent/father of the minor keeping in view the welfare of the minor child and in the meanwhile, respondent filed petition under Section

13 of the Hindu Marriage Act before the Family Court at Hisar. Due to number of revelation made by the minor, appellant was compelled to file

petition under Section 25 read with Section 7 and 10 of the J&K Guardian and Wards Act in the Court of Learned Additional District Judge,

Matrimonial Cases, Jammu for permanently appointing her as the Guardian of the minor daughter. Â

Vide order dated 25.01.2018, learned Additional District Judge (Matrimonial Cases), Jammu restrained respondent from taking the custody of the

minor forcibly. However, learned Matrimonial Court after hearing both the sides vide order dated 24.04.2018 has vacated the adinterim injunction and

dismissed the application of the appellant for grant of interim relief. Hence, this appeal on the ground that the welfare of the child is of paramount

consideration which is now settled law, yet the trial Court has failed to appreciate the said settled law and even the choice of the minor is important if

she is capable of making choice which the trial Court has not looked into and the revelation which she disclosed to her mother have not looked into by

the trial Court and has simply rejected the application that in the compromise deed the parties have settled all the conditions of the welfare of the child

so there appears nothing to give fresh look to the contentions and apprehensions of the petitioner which is not legally sustainable under law. More so,

the trial Court has not given any finding with respect to the changed circumstances which the appellant has brought on record. Learned trial court has

not given any finding qua the allegations leveled and material placed on record by the appellant; that order of interim custody or custody made by any

court is temporary in nature and that as per the mandate of law minor below the age of five years shall always remain with the mother is a statutory

right and learned trial Court has not given any finding with respect to said right of the appellant.

Respondent has filed objections and resisted the appeal. It is contended that the compromise deed has settled everything with regard to the custody

and welfare of the child and both the parties have agreed to the terms and conditions in which the welfare of the child could be secured and the

monthly maintenance therefore being paid by the respondent, the petitioner is legally stopped from asserting to the contrary by way of present appeal.

The appellant has played a mischief. He further contends that once custody/welfare of the minor was finally settled in terms of order dated

03.10.2017, he cannot seek review of the matter that has attained finality.

Heard learned counsel for the parties and perused the record.Â

Petitioner is precisely aggrieved of order dated 24.04.2018 passed by learned Additional District Judge, Matrimonial Cases, Jammu by virtue of

which prayer for interim custody of minor child has been declined on the ground that welfare of the child is of paramount consideration which is now

settled law, yet the trial Court has failed to appreciate the said settled law and even the choice of the minor is important if she is capable of making

choice which the trial Court has not looked into and the revelation which she disclosed to her mother have not looked into by the trial Court and has

simply rejected the application that in the compromise deed the parties have settled all the conditions of the welfare of the child so there appears

nothing to give fresh look to the contentions and apprehensions of the petitioner which is not legally sustainable under law. More so the trial Court has

not given any finding with respect to the changed circumstance which the appellant brought on record. Learned trial court has not given any finding

qua the allegations leveled and material placed on record by the appellant; that order of interim custody or custody made by any court is temporary in

nature and that as per the mandate of law minor below the age of five years shall always remain with the mother is a statutory right and learned trial

Court has not given any finding with respect to said right of the appellant.. Respondent on the contrary has objected to the claim of petitioner on

technical grounds that present appeal is not maintainable as there is no legal infirmity in the order impugned.Â

The contention of respondent that appeal is not maintainable as there is no legal infirmity in the order. The settled position of law is that petitioner is

the natural guardian of the minor daughter and she got every right to the interim custody of the minor child so that the minor child is not completely

alienated from her mother. The minor child requires the love, care and affection of both parents and for over all development, and welfare of the child,

it is always necessary that though the spouses may be fighting and litigating against each other but nonetheless the child should not be used as a tool

for satisfaction of their respective egos. The Courts are always concerned with the welfare of the minor child and the technicalities have no role to

play while adjudicating the disputes with regard to the minor child and the sole concern of the Court is to see the welfare of the minor child. The Apex

Court in case titled Tatineni Mayuri v. Edara Baldev reported in 2016 (13) SCC 377 has held that in the matters pertaining to custody of minor

welfare and interest of child to be given a paramount importance.

Having accorded consideration to the grounds on which the impugned decision has been assailed by the appellant, I find that in dealing with a

question of custody of a minor in any proceedings the first and paramount consideration for the court is the welfare and the best interest of the child

more than right of a parent. Another factor is the choice and preference of the minor if he/she, to the satisfaction of the court, is old enough to make

intelligent choice and preference.Â

Fortunately when this case was heard and reserved for orders, minor had also come with the petitioner. I have myself spoken to minor girl in my

office Chamber, without either of parents being present, in order to ascertain her preference in the matter. The child, who is a little more than 04 years

of age, is intelligent, having consistently done extremely well in her studies in school, and I was convinced that despite tussle between her parents, she

would be in a position to make an intelligent choice with regard to her being in the company of her parents. From my discussion with the minor, I have

been able to gather a lot, reflection whereof as is generally discernable from such cases is to remain in the company of father and mother. Parents

may have differences but should not have differences as differences destroy the family especially children as is seen in the present case. I had also an

occasion to interview both father and mother of minor. Both sides have rabble-rousing claims and counterclaims as also varied allegative contentions

that cannot be gone into and dealt with in this petition inasmuch as such disputatious claims require thorough trial and adducing of evidence.Â

Having regard to complexities of the situation in which I have been called upon to balance the emotional confrontation of the parents of the minor

child and the welfare of the minor, I have given anxious thought to what would be in the best for the parties at this stage, given case set up by both

sides. Germane to mention here that we are in the self-centred materialistic epoch, where a woman, girl is unsafe. But exception is always there. That

exception is of person(s), whom we call parents. A girl, it is well said by all, is safe in the hands of mother and there is no alternative in place of

mother.Â

The minor child of the parties is said to be four years old and is not denied that she is less than five. Learned City Judge has recorded cogent and

satisfactory reasons for giving the temporary custody of the minor to her mother. The parties are Hindu by religion and under the Hindu Minority and

Guardianship Act, 1957, Section 6(a), custody of a minor who has not completed the age of five years shall ordinarily be with the mother. There is no

reasonable ground for depriving the minor of her statutory right merely on the basis of allegations leveled by the father, howsoever grave and serious

they might be.Â

The contention of respondent that appellant has proved to be a bad mother cannot be considered at this stage and it would be in the fitness of

things as well as for the welfare of minor child that till the matter is finally adjudicated upon by the trial Court, the custody of the minor child shall

remain with the mother and father has a right of access of meeting with child once a fortnight at least for 2-3 hours preferably on Sunday/holiday at

the residence of appellant or at a place convenient for both the parties. In this process, appellant shall extend co-operation and respondent shall also

ensure that meeting with a child is peaceful and without any much show. It is further provided that appellant shall not take the minor outside Jammu in

order to deprive respondent to have meeting with her without prior permission from the Civil Court. It is also made clear that this Court has not gone

into the merits of the claim and counter claim of the parties and the order as regards to the temporary arrangement as to the custody of the child must

not be construed as an expression of opinion as regards the same. It is for the competent Civil Court to adjudicate the issue and pass an appropriate

order considering the welfare of the minor child in accordance with law. In that view of the matter, impugned order dated 24.04.2018 passed by the

learned Additional District Judge (Matrimonial Cases), Jammu in case titled Sheetu Kaul v. Anirudh Singh is set aside.Â

Disposed of as above along with connected MP(s). Â