Delhi High Court
Sh Mukand Swarup vs Smt Manisha Swarup on 25 November, 2014
Author: Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: November 25, 2014
+ FAO 421/2013 & C.M.No.17985/2013
SH MUKAND SWARUP ..... Appellant
Through: Mr. Jatin Sehgal & Mr. Harish
Malik, Advocates
versus
SMT MANISHA SWARUP ..... Respondent
Through: Mr. Ajay Kumar Chopra, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% ORAL
Impugned judgment of 30th September, 2013 grants permanent
custody of children Master Shubham, aged about eleven years and
Kumari Radhika, aged about fourteen years to respondent-wife on
application under Section 25 of The Guardians and Wards Act, 1890.
The facts of this case find mention in the impugned judgment and needs
no reiteration.
It would suffice to note that parties got married on 31st October,
1998 and their marriage ran into rough weather resulting in proceedings
under the Protection of Women from Domestic Violence Act, 2005 and
filing of application under this enactment. Whether it would be in the
welfare and interest of children to handover their custody to their mother
is the question which has been considered by the trial court in the context
FAO NO.421/2013 Page 1
of evidence led by the parties. The parties are well qualified
professionals, who are earning well. The comparative financial
superiority of father is no ground to deny the custody of children to
mother. However, conduct of the parties is to be seen while determining
as to whether custody of children should be with the father or mother.
At the hearing, learned counsel for petitioner had drawn attention
of this Court to paragraph No. 27 of the impugned judgment to point out
that the conduct of respondent-wife has been found to be objectionable
and not only the evidence of petitioner, but even evidence of the child-
Ms. Radhika (RW-2) clearly establishes that it was not in the interest of
the children to live with the respondent-mother. It was submitted that
although aforesaid evidence has been noticed by the trial court in the
impugned judgment, but in the operative portion of the impugned
judgment, the aforesaid evidence has not been dealt with and so, the
impugned judgment deserves to be set aside and custody of children
ought to be with the petitioner- husband, who is having the custody of
children from the beginning.
Reliance was placed upon decisions in Bimla Vs. Daya Ram & ors.
116 (2005) DLT 208; Sheila B. Das Vs. P.R. Sugasree (2006) 3 SCC 62;
Ravi Dadu Vs. Seema Gupta 2006 (132) DLT 524; Nil Ratan Kundu &
anr. Vs. Abhijit Kundu (2008) 9 SCC 413; Raj Roshini Vs. Surinder
Kumar 2009 (6) AD (Delhi) 59; Gaytri Bajaj Vs. Jiten Bhalla (2012) 12
SCC 471 & Shaleen Kabra Vs. Shiwani Kabra (2012) 5 SCC 355 in
support of the above submissions.
To support the impugned judgment, learned counsel for
respondent-wife had submitted that the allegation of illicit relations
FAO NO.421/2013 Page 2
leveled against respondent-wife are strongly refuted and leveling such
reckless allegations is the worst form of insult and cruelty inflicted upon
respondent-wife. Naturally mother of children is in good position to take
care of the children. It was also submitted that if the children are denied
company of their mother, it will thwart their development and so, they
should be allowed to remain with their mother. Thus, rejection of this
petition is sought.
Upon hearing and on perusal of impugned order, the evidence on
record and the decisions cited, I find that Sub-Section (3) of Section 17 of
The Guardians and Wards Act, 1890 mandates that the preference of the
minor child, who is old enough to form intelligent preferences, should be
considered. To do so, judicial notice can be taken of judgment of 24th
May, 2008 (Annexure A-5) in a complaint under Section 12 of the
Protection of Women from Domestic Violence Act, 2005 wherein the
concerned court had personally interacted with the children of the parties
for thirty minutes and it has been clearly recorded in the aforesaid
judgment of 24th May, 2008 that both the children want to live with their
father and they are not ready to go with their mother.
Apart from this, during pendency of this appeal, there was an
interaction with the children of the parties and in the order of 28 th May,
2014, it is clearly recorded that the children can clearly discern and
articulate their preferences and that they have not shown any willingness
to be with their mother. The deposition of minor children Ms. Radhika
(RW-2) is categorical. She has deposed in no uncertain terms that she
does not want to be in custody of her mother, as her future will not be
secured. She has also pointedly stated that her brother is scared of their
FAO NO.421/2013 Page 3
mother. The deposition of this material witness (RW-2) cannot be
discarded because she has clearly stated in her evidence that she was not
at all told by her father as to what questions may be asked. This rules out
the possibility of tutoring the witness.
Apex Court in Nil Ratan Kundu Vs. Abhijit Kundu (2008) 9 SCC
413 has reiterated that in selection of a proper guardian of a minor, the
paramount consideration should be welfare and well being of the child
and if the minor is old enough to form an intelligent preference, the court
must consider such preference.
In the considered opinion of this Court, impugned judgment has
taken note of the deposition of minor child- Radhika (RW-2) but has not
dealt with it. The deposition of this child- Radhika (RW-2) militates
against grant of custody of both the minor children to their mother.
In view of aforesaid, impugned judgment declining custody of
children to petitioner-father is held to be unsustainable and is hereby set
aside. However, so far as the visitation rights are concerned, respondent-
wife shall have it in terms of paragraph no.35 of the impugned judgment.
Accordingly, it is directed that custody of both the minor children shall
remain with petitioner-father till they attain the age of majority. With
aforesaid directions, this appeal and applications are disposed of.
(SUNIL GAUR)
JUDGE
NOVEMBER 25, 2014
r
FAO NO.421/2013 Page 4
