Raj Rani Jain Etc. vs Harish Chand Singia And Ors.
1994 Latest Caselaw 328 Del

JUDGMENT

C.M. Nayar, J.

(1) The present judgment will dispose of C.M.(M) 9/94 (Smt.Raj Rani Jain v. Shri Harish Chand Singia and others), C.R.No. 467/93 (Smt. Raj Rani Jain v. Shri Harish Chand Singia and another) and C.R.No. 470/93 (Smt. Sandhya Bansal v. Shri Harish Chand Singia and another). The facts arising in all the petitions are common and relate to the custody of minor female child, by the name of Swati.

(2) The petitioner Smt. Sandhya Bansal (in C.R.No.470/93) was married to late Shri Vipin Singia son of respondents Shri Harish Chand Singia and Smt. Prem Lata on February 10, 1983 and a female child was born to them on February 12, 1984. The said Vipin Singia died on August 28, 1987. A petition under Section 7 of the Guardian and Wards Act and an application under Section 13 of the Hindu Minority and Guardianship Act was moved by Smt. Sandhya Singia (now known as Sandhya Bansal) in the court of District Judge, Delhi, in Guardianship Case No. 123 of 1988. The parties to the petition being Smt. Sandhya Singia, mother of the child Baby Swati, Shri Harish Chand Singia and Smt. Prem Lata Gupta wife of Shri Harish Singla entered into a compromise, which was recorded by an order dated April 12, 1989. The same reads as follows: "Parties have entered into compromise and their statements in this regard have been recorded. Written compromise Ex.C-1 has also been filed. In terms of the compromise Ex.C-1, petitioner is appointed as guardian of the person and property of minor female child Miss Swati alias Khusbu. Parties shall be bound by the terms of the compromise. File be consigned to the record room."

Statements of the parties were recorded and the same read as follows: "STATEMENT of Shri Harish Chander and Prem Lata, respondent nos. 1 and 2 on SA: We have compromised with the petitioner and the settlement of compromise is Ex.C-l. We have no objection if the custody of the minor child namely Swati alias Khusbu is given to mother petitioner Smt. Sandhya. We have also no objection to her appointed as guardian of the person and property of the said minor. We shall be bound by the terms of the said compromise Ex.C-1. Orders be passed in terms of Ex.C.1. sd/- 12.4.89 D.J. Statement of petitioner Smt. Sandhya on SA: I have heard the above statement of the respondents and have also gone through the contents of Ex.C.1. It is correct and it bears my signatures. The orders be passed in terms of the above compromise. sd/- 12.4.89 D.J."

(3) The Dead of Compromise, as a consequence, was settled between the parties and was filed in the trial court as Exhibit C.1. It may not be necessary for me to reproduce the entire document. The portions, which are relevant for the purposes of present controversy between the parties may be reproduced as follows:

"SETTLEMENT and Compromise The parties submit as below:- 6. The parties have hereto settled their dispute and differences and compromised on the following terms and conditions recited herein below: i) That Smt. Sandhya Singla wife of Mr. Vipin Singia admits and accepts that Smt. Prem Lata wife of Mr. Harish Chand is the holder of valid will of all rights, assets, and properties movable and immovable left by Mr. Vipin Singia vide his last Will dated 23.8.87. ii) That Smt. Sandhya Singla has agreed and admitted that Smt. Prem Lata is entitled to grant of probate in her favor in respect of estate and all assets and properties left by Mr. Vipin Singia. iii) That Smt. Prem Lata and her husband Mr. Harish Chand had Chopra (now Jain), (petitioner in C.R.No. 467/93 and C.M.(M)9/94) vide Deed to Adoption dated September 30, 1991. The said Deed was entered into between Smt. Raj Rani of the First Part and Smt. Sandhya Singla of the Second Part. It may be interesting to reproduce the following clauses of the Deed: "WHERE as the First Party was cheated in her life and has pot a son from a person who was already married and has attained the age of 37 years and has no hope of petting married and is desirous to have a daughter also and as such desires to adopt baby Swati Singla aged 7 1 /2 years bearing distinctive mark Lahsun on the left hip,daughter of the Second Party as the daughter of the First Party. And Where as the Second Party is only aged 31 years and is a widow, whose husband died in 1987, and who has pot no source of income and who is the mother of Baby Swati Singla and is incapable of bringing up her daughter Swati Sinpla in a manner in which the daughter has been accustomed to, and is desirous to give her daughter in adoption to a person who can look after the child properly and as such is willing to allow his daughter Swati Singia to be adopted by the First PARTY. And Where as there is neither any legal impediment to such adoption nor any sort of consideration in any form what so ever has passed between the Parties for such adoption. Henceforth the daughter Swati will be known as Baby Swati Chopra, but she will be known in the school records as Swati Singla till the present school session."

(4) Thereafter, the position took another turn. The said Smt. Raj Rani Jain married the father of Smt. Sandhya Bansal, Shri Rikhab Chand Jain on April 27, 1992. Therefore, in a way the grand father of the minor child Swati became her adoptive father. The learned Guardian Judge, vide order dated April 21, 1993, disposed of the applications of the respondents Shri Harish Chand Singla and Smt. Prem Lata and directed the petitioners to restore the custody of the minor child. The relevant portion of the orders reads as follows: "THE fact remains that Smt. Sandhya Singla has remarried and now she is known as Smt. Sandhva Bansal and so as per the term sand conditions of the compromise Ex.C 1, she is bound to restore the custody of the child to the applicants/respondents. Consequently, I also find no merits in the application of Smt Raj Rani wherein she has pleaded that she had taken the child in adoption from Smt. Sandhya Singla, so the applicants/respondents have no right to meet the child or have the custody of the child. Summing up I find that the applicants/ respondents Shri Harish Chand Singla and Smt. Prem Lata have been able to establish that they are entitled for the restoration of the custody of the minor child named Swati singla alias Khusbu d/o Late Shri Vipin Singla from Smt. Sandhya Singia now known as Smt. Sandhya Bansal. Accordingly Smt.Sandhya Singla now known as Smt. Sandhya Bansal w/o Shri Vipin Bansal is hereby directed to restore the custody of the minor child baby Swati Singla alias Khusbu d/o late Shri Vipin Singia to the applicants/respondents on or before 22.5.1993. File be consigned to record room."

(5) The learned Judge further disposed of the other applications by order dated September 25, 1993, and rejected the prayer of Smt. Sandhya Bansal that the child has been given in adoption to Smt. Raj Rani and, therefore, she has no control over the child and,as such,she was unable to comply with the order of the Court. The respondents also moved an application under section 151 Civil Procedure Code .alleging that the first order made on April 21, 1993, granting them custody had not been complied with and, therefore, warrants of custody be issued for taking the custody of the child from Smt. Sandhya Bansal and her father Shri Rikhab Chand Jain or her alleged step-mother Smt. Raj Rani Jain. The third application was also moved by the respondents for similar relief. The learned Judge considered the matter and came to the conclusion that it would be appropriate for the Court to issue warrants for the custody of the minor child Baby Swati against Smt. Raj Rani Jain @ Raj Rani Chopra for taking the custody of the child from her and restoring the same to Smt. Prem Lata and Shri Harish Chand Singia who are the grand parents of the minor child. These two orders have been impugned before me by the mother of the minor child as well as by Smt. Raj Rani Jain, the alleged adoptive mother.

(6) I have heard learned counsel for the respondents. No one appears for the petitioner.

(7) The facts are not in dispute. The petitioner Smt.Sandhya Bansal did enter into a compromise with the respondents by a deed of compromise by which the custody of the child had to be restored to the respondents who are the grand parents of the minor child on her remarriage. It is also not denied that the said lady has already remarried a person who has two children aged 16 and 15 years respectively from an earlier marriage. The natural mother Smt. Sandhya S (Bansal) has tried to get over the settlement by entering into an alleged arrangement with a stranger by the name of Ms. Raj Rani so that she could defeat the spirit behind the compromise between the parties. The said lady has clearly been defined in the alleged deed of adoption as the one who was cheated in her life and has got a son from a person who was already married and has attained the age of 37 years and has no hope of getting married and is desirous to have a daughter also and, as such, desires to adopt Baby Swati Singia aged 7 1 /2 years. The petitioner, Raj Rani thereafter got married to the father of the natural mother by the name of Shri Rikhab Chand Jain and,therefore,the grand father of the minor child has now become the adoptive father. The conduct of the natural mother cannot beappreciated. The same seems to be indicative of vindictive attitude towards her parents-in-law without Realizing that the said attitude will damage the child emotionally and will not be in the interest and welfare of the child, which in such cases has to be a prime consideration. The lady has not behaved in a manner which deserves any appreciation for the simple reason that she has created relations in a short span without even caring that the mind of the child, who is innocent, will face unnecessary turmoil. There is no harm in getting remarried and the custody of the child could still remain with the natural mother although it has been clearly stated in the deed of compromise that in such a situation the custody will pass on to the respondents who are the grand parents of the minor child. I may have ignored this clause in case I felt convinced that the welfare of the child required so. I am afraid there is total lack of bonafide on the part of the petitioners and particularly the attitude of the natural mother, in the facts and circumstances of the present case, cannot be held to be in the best interest of the child. The learned Judge is not in error to hold that Smt. Sandhya Singla having remarried, is bound to restore the custody of the child to the respondents. Despite this finding I have carefully analysed the conduct of the parties. I did not consider it necessary to meet the child, as she is a young girl of tender age who has faced trauma in her life, first by the death of her natural father then by the remarriage of her mother and subsequently by the alleged act of giving in adoption to a stranger, which is totally an act of vindictive and unreasonable behavior only to deprive grand parents of their right of custody, which to me seems to be in the best interest of the child. The wishes of the child may be taken into consideration, but I am not convinced that she is old enough to form an intelligent preference which may be considered in deciding her welfare. The welfare of the minor is the paramount and dominant consideration in deciding the question of custody and I do not find any infirmity and illegality in the order of the learned Guardian Judge.

(8) All the three petitions are, accordingly dismissed with costs. The respondents shall be handed over custody of the child without any further delay and within one week from the date of this order. The costs of these petitions shall also be paid to them and the same are quantified at a lump sum figure of Rs.5,000.00 .