Ajay Pall vs Chanda Pall
2015 Latest Caselaw 3123 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                         C.M. (M) No.416/2012

                                            Decided on : 20th April, 2015

       AJAY PALL                                      ..... Petitioner

                       Through:      Ms. Gurmeet Bindra & Mr. Kuber Bodh,
                                     Advocates.

                            versus


       CHANDA PALL                                           ..... Respondent

                       Through:      Mr. H.S. Sharma, Advocate.


CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This is a petition under Article 227 of the Constitution of India

against the order dated 04.04.2012.

2. By virtue of the aforesaid order, the learned Additional Senior

Civil Judge as a Guardian Judge has decided the application of the

respondent/Mrs.Chanda Pall under Section 12 of the Guardians and

Wards Act, 1890 ('The Act' for short) read with Section 151 CPC

for grant of interim custody of the child. This application was filed

by Mrs.Chanda Pall along with the main petition under Section 25

of the Act for permanent custody of the child baby Nandita Pall

born to the parties.

3. It may be pertinent here to mention that the said application was

allowed and it was observed that the petitioner was entitled to the

custody of the child during the first half of the school vacations and

the same was directed to be handed over to her at the end of the

said first part of the vacations to the respondent. The order dated

04.04.2012 is being assailed by the petitioner/ Ajay Pall before this

court.

4. The case came up before this court on 11.04.2012 for the first time

and has been pending in this court for the last more than three

years. During these three years, the court had an occasion to meet

baby Nandita Pall and it was observed by various orders that

though the custody of Baby Nandita Pall shall continue to be with

the father i.e. petitioner/Mr.Ajay Pall, but directions were given

from time to the petitioner to ensure that the child meets the mother

at specified venues.

5. I have heard the learned counsel for the petitioner as well as the

respondent. I have also gone through the record.

6. The contention of the learned counsel for the petitioner has been

that the order dated 04.04.2012 passed by the learned Guardianship

Judge is perverse in law, erroneous and disregarding the welfare of

the child. For the purpose of supporting his submission, the

learned counsel for the petitioner has drawn the attention of the

court to the orders dated 28.07.2010 passed by the High Court in a

habeas corpus petition bearing WP(Crl.) No.1072/2010 wherein

this court had observed that the custody of the child shall continue

to be with the father/petitioner herein.

7. It has been contended by the learned counsel that according to

Section 6 of the Hindu Minority and Guardianship Act, 1956, the

father is the natural guardian of an unmarried girl and the mother is

the guardian after him. Therefore, in view of the said legal position,

the fact that the respondent/mother is not mentally fit, the interim

custody of the child supervised or unsupervised may not be given

to the respondent/mother. Even during the vacations she should not

have been permitted to meet the mother. In this regard, the learned

counsel for the petitioner has referred to the opinion of the child

councillor Dr. Deepak Gupta who had met the child from time to

time where he had reported that the child is reluctant, fearful and

disinterested in meeting the mother. Therefore, it has been asserted

that the mother may not be permitted to meet the child much less to

have supervised or unsupervised custody of the child during

vacations.

8. The learned counsel for the petitioner has further contended that

the mother is having an extra marital relationship and the same will

have serious impact on the development of the child. It has been

averred that in the light of the aforesaid circumstances the interim

custody of the child should be granted to the petitioner.

9. On the other hand the learned counsel for the respondent/mother

has contended that the respondent is trying to frustrate the order

dated 04.04.2012 and in furtherance of that he has ill-informed the

school authorities against the mother and directed them to not

allow the respondent/mother to meet the daughter. It is alleged that

the respondent was not allowed to enter the school premises

beyond a certain limit. The learned counsel for the respondent has

further quoted a specific incident dated 30.04.2012, in support of

the aforesaid contentions wherein it is also alleged that the school

authorities refused to comply with the order dated 04.04.2012.

10.The learned counsel for the respondent has averred that the

petitioner misinformed the respondent as to the whereabouts of the

child so as to prevent the mother from obtaining the interim

custody in pursuance of the impugned order.

11.It has been further averred that the aforesaid actions of the

petitioner tantamount to contempt of the order dated 04.04.2012 as

the said order is not under stay. Further, the petitioner has also

failed to comply with the order of this court dated 28.05.2012

wherein he was directed to allow the meeting of the child with the

mother in his presence on every Saturday and Sunday of the

summer vacations. It is the case of the respondent that although the

meeting was arranged but the same took place in the presence of a

number of people including the mother of the petitioner and his

lawyer which was unnecessary and created a non-conducive

environment for a healthy interaction. It has been further alleged

that the petitioner did not allow the respondent to meet the child on

the last weekend and this amounts to clear defiance of the orders of

this court.

12.The learned counsel for the respondent relying on the medical

documents on record (Annexure P-S, page 66) and the Division

Bench order dated 07.02.2011 passed in W.P (CRL) 1072/2010

has denied that she suffers from bi-polar disorder.

13. It has further been averred that the contention of the petitioner that

the baby Nandita, herself does not wish to be in the company of the

mother is betrayed by the Division Bench order dated 25.01.2011

(W.P (CRL) 1072/2010) wherein the court has observed that the

child had a meaningful interaction with the petitioner in the

chamber as well as separately in the court premises. It is averred

that the same view was reiterated by the learned trial court in its

order dated 04.04.2012. It is the case of the respondent that the

child is being fed with negative thoughts against the mother as a

result of which the child has developed a sense of abhorrence

against the respondent/mother.

14. The learned counsel for the respondent has contested that it's a

fallacy to say that the order dated 25.05.11 of the Division Bench

has not been considered by the learned Trial Court as the same is

prima facie evident from the perusal of the impugned judgment.

15. It is the case of the respondent/mother that the learned trial court

has minutely observed the growth and development of the child

during her earlier childhood ages wherein she was under the care

and protection of the respondent/mother and had also interviewed

in the child in person and in the light of the aforesaid had

categorically observed that the child was growing well in the care

of the mother.

16.The present petition has been filed under Article 227 of the

Constitution of India. The object of Article 227 of the Constitution

of India is to confer on every High Court special power and

responsibility over the subordinate courts and tribunals to keep

them within their territorial jurisdiction for securing the ends of

justice and ensuring that all such institutions exercise their powers

and discharge their duties judiciously and in accordance with law.

The Hon'ble Supreme Court in Ramesh Chandra Sankla etc. vs.

Vikram Cement etc. AIR 2009 SC 713 has confirmed the aforesaid

legal position while taking strength from the observations rendered

by the Allahabad High Court in Jodhey v. State; AIR 1952 All 788,

wherein it has been held as under:

"There are no limits, fetters or restrictions placed on this power of superintendence in this clause and the purpose of this Article seems to be to make the High Court the custodian of all justice within the territorial limits of its jurisdiction and to arm it with a weapon that could be wielded for the purpose of seeing that justice is meted out fairly and properly by the bodies mentioned herein"

17. The same principle has been repeatedly re-echoed by the different

High Courts as well as by the apex court from time to time that

power under Article 227 of the Constitution of India is supervisory

in nature and it is both deep and pervasive on the administrative

and the judicial side.

18. In the instant case, this power has been invoked by the

petitioner/husband on the judicial side. The petitioner has to show

to the court that there is jurisdictional error in the exercise of the

powers by the Guardianship Judge or that there is impropriety or

any patent illegality in the said exercise of power. There is no

dispute about the fact that the High Court while disposing of the

WP(C) No.1072/2011 had passed certain observations and directed

the custody to remain with the father which order was retained by

the Guardian Judge.

19. The allegation of the respondent/Chanda Pall was that the child at

that point of time was studying in a school in Delhi and she was

taken away by the husband/petitioner and got admitted in a

boarding school. It is common knowledge that in a matrimonial

discord, the child is invariably made a pawn and in the instant case

also the same is being done and the factum of which has been

noted by the learned trial court also. It cannot be ignored that the

custody of the child has been given to the father and he has overall

control over the child. The said order granting sole custody to the

father seems to have been made in the larger welfare of the child.

But on the other hand experience has shown that the person who is

in the custody and in charge of the child, spews venom against the

other partner and as a consequence of which the child being of a

tender age and incapable of forming his/her own independent

view/opinion and starts abhorring and having negative feelings qua

the other partner. This is precisely the basis of the instant case also

and is reflected from the fact that when this court met the child, the

child showed disinclination to meet the mother. So far as the

reports of experts are concerned, they are at best the guiding

principles and there is no dearth of methods of procuring these

reports. The learned trial court having taken all these factors into

consideration and gave only limited permission to the

respondent/wife thereby giving the custody only during the

vacations for the year 2012 and thereafter since order was

challenged, the court has from time to time been passing orders

permitting the mother to meet the child.

20. The allegations of the mother being not in a fit state of mind or

that she is carrying extra marital liaison are all allegations which

are of no relevance until and unless they are proved to the

satisfaction of the trial court which has passed the order. It is not

for this court to regulate the interim custody from time to time by

judicial orders and permit the respondent/petitioner to meet the

child at different venues and keep on increasing its own work. The

job of this court is to see as has been stated hereinabove as to

whether the order which has been passed by the learned Trial Judge

suffers from any jurisdictional error/infirmity meaning thereby that

it has failed to exercise jurisdiction or has exceeded its jurisdiction.

Certainly, it is not a case where the learned trial court has exceeded

its jurisdiction by permitting the respondent/mother to meet the

child and have interim custody during vacations so that she can

shower motherly love and affection to the child and that would be

necessary for the full and complete development of the child

otherwise the child is going to have a lopsided development.

21. So far as the impropriety or illegality is concerned, I feel that the

learned counsel for the petitioner has not been able to show that the

impugned order suffers from any impropriety, illegality or material

infirmity; rather the keeping of the present petition pending before

this court, the disposal of the main petition under Section 25 of the

Guardians and Wards Act, 1890 gets diluted and further this court

is being called upon from time to time to regulate the interim

custody or the interim visits to be undertaken by the

respondent/petitioner from time to time which is not warranted at

all.

22. For the reasons mentioned above, I am of the view that so far as

the order which is assailed before this court is concerned, the same

does not suffer from any jurisdictional error, irregularity or

impropriety or illegality so as to warrant any interference by this

court. Accordingly, the petition is disallowed. However, the parties

are free to file such appropriate application before the trial court for

varying or granting any interim order as the parties may deem fit.

23.The learned Trial Judge shall proceed to dispose of the main matter

under Section 25 of the Guardians and Wards Act, 1890 as

expeditiously as possible without being influenced by any of the

observations made in the present matter.

24.With these directions, the petition is treated as disposed of.

V.K. SHALI, J.

APRIL 20, 2015/dm