Delhi High Court
Prameet Narula Thr Its Spa Ranjeet ... vs Sanjeev Kumar Choudhary on 3 November, 2015
$~53
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAT.APP.(F.C.) 136/2015
% Date of Judgment : 03.11.2015
PRAMEET NARULA THR ITS
SPA RANJEET SINGH NARULA ..... Appellant
Through : Ms. Reena Jain Malhotra, Advocate.
versus
SANJEEV KUMAR CHOUDHARY ..... Respondent
Through : Mr. Jai Bansal and Mr. Nath Mohan
Prafulla, Advocates.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G. S. SISTANI, J. (ORAL)
1. Aggrieved by the order passed by the Family Court dated 17.10.2015,
appellant has filed the present matrimonial appeal.
2. As per the petition, appellant is the wife of respondent no.1.
3. Learned counsel for the appellant submits that the interim custody of
the minor daughter was with the maternal grandparents. The
respondent visited the house of the petitioner's parents and without
informing them, carried the child away and thereafter approached the
Court on 16.10.2015 and obtained an order of status quo on
17.10.2015.
4. The appellant learnt about the ex parte order on the night of
17.10.2015 when a copy of the Order was sent through "Whats App''
to the appellant. The appellant was shocked to receive the ex parte
order as in terms of the settlement arrived at between the parties, the
appellant had given up her claims towards istridhan and maintenance,
however, it was agreed that the custody of the minor daughter would
remain with Sh. Ranjeet Singh Narula and Smt.Satinder Narula,
maternal grandparents, till the dissolution of marriage.
5. Learned counsel for the appellant submits that the child was admitted
to Guru Harkrishan Public School, India Gate. The appellant in the
month of June, 2015, had to go to Auckland, New Zealand, to pursue
her teacher training course during which period the minor daughter
was staying with her parents.
6. Learned counsel for the appellant further submits that after the
passing of the aforesaid order, an application under Order XXXIX
Rule 4 read with Section 151 of Code of Civil Procedure was filed on
20.10.2015 which was simply adjourned to 02.11.2015 by the Family
Court forcing the appellant to knock the doors of this Court for
justice.
7. Learned counsel for the appellant submits that the parties had decided
to dissolve their marriage by mutual consent. Accordingly, the
petition under Section 13-B (1) of the Hindu Marriage Act was filed.
The first motion was recorded. In the petition, the parties had agreed
on the following arrangements :
"8. That the custody of the minor Rabaani would
remain with Sh. Ranjeet Singh Narula and Smt.
Satinder Narula till the dissolution of marriage
between the parties and that thereafter the custody
of minor would remain with Sh. Ranjeet Singh
Narula and Smt. Satinder Narula.
9. That in the event of seeking custody of the minor
by either of the parties to this petition for any
reason whatsoever including travelling abroad,
they would have to seek the legal permission from
the competent authority after obtaining the consent
of the legal custodians of the minor child i.e. Sh.
Ranjeet Singh Narula and Smt. Satinder Narula,
the father and mother of the petitioner no. 1."
8. While recording the statement, the following was stated before the
trial court :
"3. We have amicably resolved all our disputes
pertaining to this marriage including istridhan,
permanent alimony, dowry articles and
maintenance (present, past & future). We have
agreed that we will not initiate any litigation or
will not raise any claim in future against each
other and the family members and relatives of each
other. It has been mutually agreed between us that
the custody of the said child shall remain in care
and custody as per para no. 8 to 10 of the
petition."
9. Learned counsel for the appellant further submits that the respondent
has mislead the Family Court by suppressing and withholding
material documents. She further submits that the respondent, who
used to visit the house of the appellant's parents, removed the child
from the custody of the maternal grand parents and thereafter filed the
petition under Section 26 of the Hindu Marriage Act on the same day
and obtained an order of status quo. Counsel further submits that a
copy of the petition for grant of divorce (first motion) was not placed
before the Family Court although a copy of the statement was filed.
10. Notice was issued in this matter on 3.11.2015. Pursuant to the
directions, the parties are present in Court. It is not in dispute that
prior to 16.10.2015, the custody of the minor daughter of the parties
was with the maternal grand parents in terms of the understanding
arrived at between the parties and which is evident from the statement
made by them before the Family Court on 12.01.2015.
11. Mr. Bansal, learned counsel appearing for the respondent submits that
the respondent did not conceal any facts from the Family Court. He
submits that since the mother of the child had left the child and had
gone to New Zealand, the respondent upon seeing the condition of the
child decided to keep the child with him for her welfare.
12. We have heard the learned counsel for the parties.
13. When the matter was listed before us on 02.11.2015, we had asked the
counsel for the appellant the fate of her application under Order
XXXIX Rule 4 of Code of Civil Procedure. We were informed that
notice was issued for 18.11.2015.
14. During the course of hearing, we had asked the counsel for the
respondent to take instructions if the respondent is willing to hand
over the custody of the minor child in terms of the settlement
agreement till such time the family court hears the matter on merit.
After some reluctance, the respondent has agreed that the custody of
the minor child be handed over to the grandparents in terms of the
Agreement entered into between the parties and interim order be
vacated to enable the Family Court to hear the matter on merits.
15. Before we dispose of the matter, we would like to express our
displeasure in the manner the Family Court has dealt with this matter.
On 17.10.2015, the following order was passed :
"HMA No. 795/2015
Sanjeev Kumar Choudhary Vs. Prameet Narula & Anr.
Fresh petition u/s. 13 1 (i) & (i-a) of HMA received. It
be checked and registered.
Present : Petitioner with Sh. Jai Bansal, Advocate.
Let issue notice of the petition and application u/s 26
of HMA to the respondent No. 1 and respondent no. 2
on filing of PF, RC/AD and Speed Post.
I have perused the file, another address of the
respondent No. 1 is also mentioned, so she also be
served on that address through e-mail, courier as well
as through Indian Embassy at Auckland, New Zealand.
Child is also present along with her father i.e.
petitioner.
Ld. Counsel for the petitioner request that let status
quo in respect to the minor child Rabaani Choudhary
be passed to avoid any disputes between petitioner and
the respondent No. 1.
After hearing the arguments and bearing in mind the
welfare of the child, let status quo in respect of the
minor child be maintain till the next date of hearing.
Put up on 22.01.2016. Copy of the order be given
dasti as prayed.
(Arun Kumar Arya)
Principal Judge Family Court
Patiala House Delhi
17.10.2015"
16. Firstly, the Order dated 17.10.2015 is devoid of any reason, although
the statements made by the parties were placed on record which show
that the custody of the child was to remain with the maternal grand
parents. We also find that on 17.10.2015 in a matter pertaining to
custody of a minor girl notice was issued for a date in the month of
January, 2016, but what is not acceptable is that when an application
under Order XXXIX Rule 4 of the Code of Civil Procedure was filed
on 20.10.2015 without hearing and without issuing notice, the same
was adjourned to 2.11.2015. This is more shocking as in the
application it had been clearly stated that as per the terms of
settlement the custody of the child was to remain with the
grandparents.
17. We also find that after the order was passed, the respondent did not
make any attempt to file the process fee and serve the appellant
herein. We also find that the respondent did not annexe the copy of
the petition for grant of divorce by mutual consent (first motion)
which has set out arrangements between the parties. We also find that
the respondent did not send the child to the school after 19.10.2015.
A certificate to this effect from the school has been filed on record.
While taking this drastic step, the father did not realize the insecurity
he was putting the child into.
18. The appeal stands disposed of. However, we make it clear that while
deciding the petition filed under Section 26 of the Hindu Marriage
Act, the Family Court will decide the same unaffected by any
observation made by us while disposing of the matter today.
19. List before the Family Court on 18.11.2015, the date already fixed.
CM APPL. 25444/2015 (Stay)
20. In view of the order passed in the appeal, the application is also
disposed of.
G.S.SISTANI, J
SANGITA DHINGRA SEHGAL, J
NOVEMBER 03, 2015
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