Harish Kumar vs Anu Priya
2013 Latest Caselaw 4578 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                         Decided on: 03.10.2013
+                      MAT. APP. (F.C.) 38 OF 2013

       HARISH KUMAR                               ..... Appellant
                            Through:    Mr.P.K.Srinivasan,
                            Advocate.

                            versus

       ANU PRIYA                                 ..... Respondent

                            Through:    Nemo


       CORAM:
       HON'BLE MR. JUSTICE S. RAVINDRA BHAT
       HON'BLE MR. JUSTICE NAJMI WAZIRI


%      MR.JUSTICE S. RAVINDRA BHAT(Open Court)

1. This is an appeal directed against the judgment and order

of the Family Court delivered on 13.03.2013 dismissing the

petition under section 25 of Guardian and Wards Act, 1890 (the

'Act').

2. The brief facts of the case are that the appellant preferred

a petition for custody and guardianship of his children. The

marriage of petitioner and respondent was solemnized on

13.01.1996. The two children i.e. a daughter (Shubhangi) and a

MAT.APP.(FC) 38/2013 Page 1 son (Sagar) were born on 27.12.1996 and 10.04.1999

respectively. On account of differences, the wife started living

separately with the children from 03.05.2005 in her parental

home. She did not join her matrimonial home at any stage

thereafter. It is the common case of the parties that on

04.04.2011, the marriage of the parties was dissolved by a

decree of divorce. It is in this background of circumstances i.e.

the husband / appellant moved a petition under Section 25 of the

Act. It was alleged during the proceedings by the appellant

that the respondent interfered with his right to custody and

visitation of the children and that it was in the best interest of

the children that an order in his favour towards custody be

made. The appellant alleged that the respondent neglected to

take care of the health of his son who was suffering from a

'neuro problem'.

3. Trial court taking into consideration the evidence in the

case, held that the respondent / wife be granted custody. In the

course of the evidence, the petitioner examined himself in his

affidavit, Exh.PW.1/1. He also relied upon certain documents

MAT.APP.(FC) 38/2013 Page 2 i.e. Exh.PW.1/A to Exh.PW.1/E. Trial court after considering

the submissions was of the opinion that it is in the best interest

of the children that the custody and guardianship be stayed by

the respondent.

4. After discussing the evidence, the impugned order

observed as follows:

"In the present case, the respondent left the matrimonial home with minor children on 03.05.2005 on account of some disputes and temperamental differences and went to her parental home. Thereafter, the respondent did not join the company of the petitioner. Both the children have been living in the care and custody of the respondent since 03.05.2005. It is worth noting petitioner has deposed that the minor son Sagar is having some Neuro problem. However, he has not placed on record any document in this regard. It is further significant to note that petitioner has also not placed on record any document to show that the respondent is not taking care of both the children and he is in a better position to take care of children. It is further significant to note that petitioner has categorically deposed that the respondent is a qualified lady as she is MA, B.eD. He has also deposed that being a teacher, she is getting handsome salary and is also working as an insurance agent.

Since the respondent is a qualified lady and getting handsome salary, in these circumstances, it cannot be said that respondent is not taking care of children and is not worried about the welfare of the

MAT.APP.(FC) 38/2013 Page 3 children. No evidence has been brought on record by the petitioner that the respondent is not providing proper treatment to the son. Since, both the minor children are in the care and custody of the respondent, since 200,. I am of the considered view that the custody of both the children should not be disturbed only on the ground that the petitioner is praying maintenance regularly and is earning a handsome salary. I am also of the view that any disturbance, by changing the custody of the children would traumatize them and will not be conducive to the welfare of children. It will certainly affect the balance of mind who have developed love and affection for their mother as they have been living with her since May, 2005."

5. The appellant reiterated that the Trial court failed to

consider the grant of visitation rights. It was submitted that the

impugned order failed to take note of the health problem of the

son and financial capability of the appellant to provide better for

the welfare of the minor children.

6. Apart from asserting that son is suffering from a neuro

problem, the appellant appears to have made no other

allegations. During the course of hearing, Ld. Counsel

conceded that no order was sought for discovery of the medical

record nor was any doctor summoned. It was submitted that the

respondent / wife did not care for her children for more than 8

MAT.APP.(FC) 38/2013 Page 4 years i.e. 03.05.2005. In the testimony under oath, the petitioner

/ appellant was unable to establish how many times he had

approached the respondent seeking visitation rights and for

guardianship. The respondent lived separately for more than 6

years after which the divorce was granted. This court is

conscious of the fact that while granting custody, the Court is

guided only by the welfare and overall interest of the children

and not by the opinion or desires of the parents. Having regard

to the totality and circumstances present before it, this court is

not in a position, to differ with the conclusion arrived at by the

Family Court.

7. In view of the above discussion, the appellant's appeal

being devoid of merits, is dismissed.

S. RAVINDRA BHAT (JUDGE)

NAJMI WAZIRI (JUDGE) OCTOBER 03, 2013 VG

MAT.APP.(FC) 38/2013 Page 5