Sunil Kapoor vs Parul Kapoor
2012 Latest Caselaw 4733 Del

18.


*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+                   Date of Decision: 13.08.2012


%      FAO 337/2012


       SUNIL KAPOOR                                ..... Appellant
                          Through:     Ms. Priya Hingorani, Advocate.

                   versus

       PARUL KAPOOR                               ..... Respondent
                          Through:     None.


       CORAM:
       HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
       HON'BLE MR. JUSTICE VIPIN SANGHI


VIPIN SANGHI, J. (Oral)

Caveat No. 838/2012

The caveator has not entered appearance. The caveat is

accordingly discharged.

C.M. No. 13747/2012 (for exemption)

Exemption allowed, subject to all just exceptions.

C.M. No. 13750/2012 (for delay)

For the reasons mentioned in the application, delay of 8 days

in re-filing the appeal is condoned.

The application is accordingly disposed of.

FAO 337/2012

1. The appellant assails the order dated 03.05.2012 passed by

the learned Additional Principal Judge, Family Courts, Rohini, New

Delhi (hereinafter referred to as the APJ) in G.P.No. 50/2010

preferred by the appellant under Section 25 of the Guardians &

Wards Act, 1890 (hereinafter referred to as the Act). The appellant

is the husband of the respondent - his estranged wife. Out of their

wedlock, a girl child was begotten, namely Ms. Kavya Kapoor, who is

in the custody of the respondent. The marriage between the parties

took place on 26.07.2004 according to the Hindu rites & ceremonies

in Delhi. The baby girl was born on 19.02.2005.

2. The parties in their respective pleadings made various

allegations and counter-allegations with regard to the each other's

conduct, all of which are not relevant for the present purpose, for

the reason that the issue required to be considered and, in fact,

considered by the learned APJ while passing the impugned order

was whether it would be in the interest and welfare of child Kavya

Kapoor that her permanent custody is granted to the appellant

father. We are, therefore, taking note of only those facts disclosed,

averments made, and evidence led by the parties, which are

relevant for determination of the said issue.

3. The appellant claimed that after the marriage of the parties,

the behaviour of the respondent towards him and his family

members was not good, which led to shut down of his business

which he was carrying on with his brother-in-law. Consequently, he

suffered losses. His financial condition got worse with each passing

day and he had to take loans from the market for his survival.

4. The appellant claimed that the respondent was living

separately from him since 24.08.2008. She had taken the minor

daughter with her and, consequently, the minor daughter has been

deprived of his love and affection and vice versa. He claims that the

respondent changed the school of the minor daughter from Meera

Bagh (Paschim Vihar) to Sector-3, Rohini and even deleted his name

as her father. His efforts to meet the minor daughter were staved of

by the respondent and her parents. The appellant claimed that the

respondent could not look after the welfare of the minor child since

the respondent is a working lady and she has left the minor child in

the care of a maid. The appellant claimed that the respondent does

not maintain a good moral character as she is involved with her

employer/Director Mr. Atul Sinha, who gives her costly gifts such as

computers, mobile phone, perfumes, watches, and even drops her

to her house. He claimed that the respondent has taken custody of

the minor child forcibly from him with police aid.

5. On the other hand, the respondent alleged that the appellant

was a vagabond and an alcoholic. He did not disclose that he had

married twice earlier before marrying the respondent. He also did

not disclose that he was engaged to another girl named Pooja, who

broke the engagement when she came to know of his antecedents.

She claimed that the appellant was the owner of a valuable

property, wherefrom he was deriving a handsome monthly rent of

Rs.65,000/-. She claimed that the appellant was very aggressive,

violent and abusive and he beat her up after consuming liquor. He

was abusive even with the neighbours, broke windscreens of two

cars in his colony, and created a scene. The respondent claimed

that she is taking utmost care of the minor daughter by providing

her best of education and upbringing. She has employed a full-time

Nanny to attend to the minor daughter after she returns from

school. She is well-educated having obtained the degrees B.Com,

B.I.T. and M.B.A., whereas the appellant is not even a graduate. She

was residing with her parents who were well educated and were

working in a bank. The appellant was living alone in a single room

accommodation in Kanpur. She claimed that it was not in the

interest of the minor daughter to live with the appellant, whom she

claimed is an alcoholic, aggressive, violent and irresponsible person.

6. The appellant examined himself as PW-1; his sister

Smt.Kanchan Sethi as PW-2; his brother-in-law Sh. Kamal Kohi as

PW-3. The respondent examined herself as RW-1 and her father

Sh.Raj Kumar as RW-2. The appellant testified that he was not

working before his separation from the respondent. He testified

that he owned a building bearing No. 24/5, Tilak Nagar, Delhi and

had rental income therefrom. He testified that the shop/building

was earlier leased to M/s City Mega Mart on monthly rent of

Rs.28,000/- and thereafter, was leased out to M/s Priknit at a

monthly rent of Rs.65,000/-. He claimed that he had sold the said

property for Rs.23 Lakhs, even though the market value of the same

was assessed at Rs.2.69 Crores. After initially denying the fact, he

admitted that he had sold his property to his own sister, namely

Meena Mahana vide sale deed dated 26.02.2009 Ex. PW-1/D1. He

stated that he is residing in a rented accommodation in Kanpur at a

monthly rent of Rs.1,800/- comprising of one room with a common

bathroom. He stated that the accommodation does not have a

separate kitchen. He disclosed that he had taken loans from Satpal

Babbar, Rajiv Dutta, Vinod Chopra and Harvinder Kohli, etc. on

interest @ 2 to 2½ per cent per annum, whereas a part of the loan

is interest free. He did not have any documentary evidence to show

that he was carrying on business such as sales tax number, license,

TIN, or any other account books. He stated that he is residing alone

at Kanpur and working as Supervisor with M/s Dhanna Enterprises at

a salary of Rs.5,500/- per month. The firm has given him a scooter

make LML Vespa, as he has to do field work. He testified that he

spends Rs.12/- per day on transportation to his office and takes food

once a day spending Rs.15-20 for the same. He stated that he is

leading a hand to mouth life and can hardly save any amount out of

his salary. When the respondent and his daughter were staying

with him, the school fees of the child was Rs.10,000/-

(approximately) annually in the year 2008. He stated that he was

spending Rs.4,000/- to Rs.5,000/- per month on his minor daughter's

expenses such as food, clothing, etc. He admitted that the quarterly

fees of the minor daughter including transportation is Rs.15,000/-.

He admitted that the child is studying in Laurel High School,

Pitampura and a Nanny has been hired to look after her at a salary

of Rs.5,000/- per month. He admitted that the daughter is attending

dance classes and her expenses are to the tune of Rs.2,000/- per

month. Maintenance @ Rs.5,000/- per month for the minor

daughter and Rs.5,000/- per month for the alternative

accommodation had been granted by Ms. Jyoti Kler, Metropolitan

Magistrate, Tis Hazari Courts, payable w.e.f. January 2009, against

him, which has been challenged by him without success. However,

he has paid Rs.18,000/- only till the date of his statement, which

was recorded on 14.09.2011 and that too, when he set meeting

rights with her minor daughter on the occasion of her birthday.

7. PW-2 Smt. Kanchan Sethi, sister of the appellant admitted that

the appellant used to take liquor earlier but he had stopped taking

drinks now. She supported the appellant's case that he lives alone

in the house at Kanpur. She admitted that the appellant had never

tried to meet the minor child Kavya, except in the Court on the

occasion of her birthday. She admitted that the minor daughter

Kavya has been looked after by the respondent very well and she is

being well-groomed.

8. PW-3 Sh. Kamal Kohli, brother-in-law of the appellant admitted

that there is none to look after the child, if she is given in custody to

the appellant.

9. In the backdrop of the aforesaid pleadings and evidence of the

parties, the learned APJ came to the conclusion that it was not in the

interest of the child Ms. Kavya Kapoor that she should permanently

remain in the custody of the appellant. The learned APJ observed

that it had emerged from the testimony of the appellant, his sister

PW-2 and brother-in-law PW-3 that the appellant was not working at

the time the respondent left or was made to leave her matrimonial

home. His only source of income was the property which earned

rent. Even this property had been sold for a consideration of Rs.23

Lakhs to one of his sisters, namely Ms. Meena Mahana by the

appellant though the value of the property was assessed at Rs.2.69

Crores at the time of sale. The appellant had stated that a part of

the sale consideration of Rs.23 Lakhs was utilized to repay the

outstanding loans. He was residing in a single room accommodation

in Kanpur with no kitchen and using a common bathroom. He was

drawing a monthly salary of Rs.5,500/- per month from M/s Dhanna

Enterprises, where he worked in the field as Supervisor. He was

practically hand to mouth and had no savings. It had also come on

record that the appellant had twice earlier got married. It was

admitted by the appellant's sister that he used to consume liquor.

Whereas the appellant was not even a Graduate, the respondent

had acquired higher education by completing B.Com., B.I.T. and

M.B.A. She was working and drawing a handsome salary of

Rs.25,000/- a month. She was sending the child to a good school

and had employed a full time Nanny on a monthly salary of

Rs.5,000/- to take care of the child when she and her parents were

not at home and are out for work. The girl child had also joined

dancing classes on a monthly fee of Rs.2,000/-. The appellant's lack

of concern for the child was demonstrated by the fact that despite

an order of the learned Metropolitan Magistrate awarding

maintenance @ Rs.5,000/- per month and a further sum of

Rs.5,000/- for alternate accommodation w.e.f. January 2009, the

appellant had paid only an amount of Rs.18,000/- till September

2011 (when his statement was recorded on 14.09.2011), and that

too, when he wanted to celebrate the minor daughter's birthday.

The financial condition of the appellant and his circumstances,

namely the fact that he was residing all alone in Kanpur in a one

room accommodation with no kitchen and a common bathroom and

drawing a monthly salary of Rs.5,500/- was also taken note of. Even

according to the appellant's witness PW-3 Sh. Kamal Kohli, there

was no one else to take care of the minor child in case her custody

is given to the appellant. On the other hand, the respondent had

not only employed a full time Nanny but the child's maternal

grandparents were also there to take care of her and they were

holding respectable positions in banks.

10. The submission of learned counsel for the appellant is that the

learned APJ has dealt with the evidence in a one-sided manner by

ignoring the evidence led by the appellant, particularly to

demonstrate her immoral character. As rightly observed by the

learned APJ, the appellant could not take advantage of the fact that

the respondent established physical relationship with him even prior

to their marriage. The appellant was held to be more responsible

for the said conduct as he had already been married twice and

divorced. According to the respondent, she was not conscious when

the appellant established physical relationship with her.

11. So far as the relationship between the respondent and

Sh.Navin Dhamija, her college time friend is concerned, the learned

APJ has referred to the evidence of the respondent's father Sh. Raj

Kumar RW-2. Since Sh. Navin Dhamija is in the business of sale &

purchase of properties and an Interior Designer by profession, the

respondent was in touch with him regarding the renovation of her

father's house. The fact that she was in touch with Sh. Dhamija was

even known to her father and there is nothing clandestine about it.

12. Learned counsel for the appellant has sought to place reliance

on Annexures A-3 & A-4, the transaction enquiry regarding the bank

account of the respondent and the details of the phone calls and

SMS record of the respondent's mobile phone and that of Sh. Navin

Dhamija. These documents have not been duly proved on record

and it appears that the learned APJ has, therefore, not relied upon

the same and, in our view as well, these documents not having been

duly proved on record could not be looked into. In any event, as

aforesaid, they do not cast any doubt on the character of the

respondent.

13. Lastly, it is argued that the appellant is being denied visitation

rights qua the child. Visitation and custody normally stand on a

different footing. The issue decided by the learned APJ is qua

custody and not visitation. If the appellant has any issues with

regard to visitation rights qua the child, it is for him to pursue the

same before an appropriate forum. In our view, the learned APJ has

correctly applied the principles applicable to determine the issue

with regard to the custody of the minor child by taking note of the

views of various authors as well as the decisions of the Hon'ble

Supreme Court in Nil Ratan Kundu and Another Vs. Abhijit

Kundu, (2008) 9 SCC 413, and Gaurav Nagpal Vs. Sumedha

Nagpal, (2009) 1 SCC 42. In our view, no other conclusion could

have been drawn by the learned APJ in the light of the evidence

which was brought on record of this case.

14. Accordingly, we find no merit in this appeal and dismiss the

same, leaving the appellant to bear his own Costs.

C.M. Nos. 13748-49/2012

In view of the aforesaid orders, the present applications are

dismissed.

VIPIN SANGHI, J

SANJAY KISHAN KAUL, J

AUGUST 13, 2012 'BSR'