Dr. Sonia Sahaye vs Vikramajit Singh Sahaye
2010 Latest Caselaw 1845 Del

     *            IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                         Date of Reserve: February 22, 2010
                                                              Date of Order: April 08, 2010
+ CM(M) 439/2009
%                                                                 08.04.2010
     Dr. Sonia Sahaye                                      ...Petitioner
     Through: Ms. Kamini Jaiswal, Ms. Shomila Bakashi & Mr. Divyesh Pratap Singh,
     Advocates

         Versus

         Vikramajit Singh Sahaye                                 ...Respondent
         Through: Mr. K.T.S Tulsi, Sr. Advocate with Mr. Gaurave Bhargava and Mr. R.S.
         Chauhan, Advocates


         JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the judgment?

2.       To be referred to the reporter or not?

3.       Whether judgment should be reported in Digest?


         JUDGMENT

1. By way of present petition under Article 227 of the Constitution of India, the

petitioner has assailed an order dated 7th February 2009 passed by learned

Guardianship Judge whereby he dismissed an application under Order VI Rule 17 CPC

for amendment of the petition filed by petitioner under Section 25 of the

Guardianship & Ward Act, 1890.

2. A perusal of amendment application made by the petitioner herein would show

that in the amendment application, the petitioner had given the story of her marriage

right from the date of her marriage till the parties separated and made allegations

against her husband as to what was the attitude of her husband towards her. She

stated that her husband used to torture, abuse, her etc etc. While seeking

amendment of another paragraph, she wanted to introduce as to wherefrom she got

the degree of BDS, what were the number of holidays available to her and at the time

first birthday of her minor child, what gifts were given to the minor child by her and

by her parents. She wanted to attach photographs. She also wanted to add about her

CM(M) 439/2009 Dr.Sonia Sahaye v. Vikramajit Singh Sahaye Page 1 Of 3 mother's qualification and her health and the fact that the mother has kept a maid to

do household work. Simultaneously, she wanted to amend the petition to plead that

the respondent (father) used to go to Bangkok, Singapore and Malaysia in connection

with his job. He was a hot-tampered person who used to assault, humiliate, torture

the petitioner herein and the mother of respondent was a heart patient and she used

to continuously keep aloof and was not fit for taking care of child. She wanted to say

that the minor daughter was of tender age and emotionally attached with her.

Thereafter, she wanted to amend the pleadings to bring on record that on the

occasion of Diwali, the petitioner had sent greeting cards, diyas, diwali box to the

respondent for her daughter which were refused.

3. In reply, the allegations made against the respondent (father) were denied

and counter allegations were leveled by the respondent herein. The learned

Guardianship Judge after making observations that a guardianship court was not

concerned with the matrimonial dispute nor was concerned with the attitude of

respondent-father towards the petitioner-mother and the only thing for consideration

of guardianship court was to see as to what was in the best interest of child, he

dismissed the application for amendment. The Guardianship Judge observed that the

amendment sought were not germane or relevant for the purpose of deciding the

issue before Court. Mere purchase of flat by the mother of the petitioner and her

capacity to engage a maid servant were not factors which were going to affect the

welfare of the child.

4. In a guardianship case, it is in the interest of the parties that they should not

bring in those pleadings which are not germane to the case. The allegations of cruelty

and counter allegations of counter cruelties should be kept reserved by the parties

for divorce proceedings or other proceedings. In a guardianship case, the only thing

to be seen by guardianship court is the future and welfare of the child and what will

be in the best interest of the child. However, for this purpose, the parties can bring to

the notice of the court the past attitude of the mother or father towards the child,

CM(M) 439/2009 Dr.Sonia Sahaye v. Vikramajit Singh Sahaye Page 2 Of 3 attachment of child etc. The parties can also bring forth the financial aspect and

there were habits in the parents which were not good for the growth of the child, the

same can be brought to the notice of the Court, atmosphere of home where the child

is staying or is to stay, the school atmosphere, the distance between the school and

home, the financial incapacities etc. The Guardianship Court cannot go into

allegations or counter allegations of cruelties towards each other, misbehavior

towards each other. It is also appropriate that the court should not consider the

allegations and counter allegations against grandparents who at the most are doing

service to the child by taking care of the child, because the parents are at

loggerheads.

5. I consider that the application of the petitioner under Order VI Rule 17 CPC in

major part contains only allegations not germane and relevant for the purpose of

deciding the petition. However, the petitioner would be at liberty before the

guardianship court to depose on all those aspects which are relevant for showing that

the welfare of the child lies in giving custody of the child to her, but she would not be

at liberty to covert a petition before the guardianship court into a petition of acrimony

between the parties where the examination and cross examination is done on the

allegations against each other. The guardianship court, therefore, rightly disallowed

the application. The trial court, however, shall permit the parties to lead evidence on

the factors affecting welfare of the child.

6. The petition stands disposed of with above observations.

April 08, 2010                                              SHIV NARAYAN DHINGRA J.
rd




CM(M) 439/2009        Dr.Sonia Sahaye v. Vikramajit Singh Sahaye                 Page 3 Of 3