Delhi High Court
Vijay Kumar Jha & Ors vs Shailender Kumar Jha & Anr on 31 July, 2018
$~48
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 31st July, 2018
+ MAT.APP.(F.C.) 178/2018
VIJAY KUMAR JHA & ORS ..... Appellants
Through Mr. Neeraj Bhardwaj, Advocates
versus
SHAILENDER KUMAR JHA & ANR ..... Respondents
Through Nemo
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J. (ORAL)
CM.APPL 30335/2018(Exemption)
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
CM.APPL30336/2018(delay)
3. This is an application filed by the appellants seeking condonation of
22 days delay in filing the present appeal. For the reasons stated in the
application, the same is allowed. Delay of 22 days in filing the appeal
is condoned.
4. The application stands disposed of.
MAT.APP.(F.C.) 178/2018
5. This is an appeal under Section 19 of the Family Courts Act. The
appellants have impugned the order dated 19.05.2018 passed by the
Family Court declining the interim custody to the appellants, being the
father and grand-parents of the minor son who is stated to be 08 years
of age.
6. The necessary facts for the disposal of this appeal are that marriage
between appellant no.1 and deceased Suman, daughter of the
respondents herein, was solemnized on 25.02.2008. Out of the
wedlock, a son was born on 19.10.2009. Deceased Suman committed
suicide by hanging on 19.06.2012, which led to registration of an FIR
bearing No.174/2012 against the appellants on a complaint filed by her
parents. In a criminal writ petition being W.P.(Crl). No.1177/2013
filed by the respondents, the interim custody of the minor child was
handed over to the respondents by this Court by an order dated
04.10.2013.
7. Mr. Bhardwaj, learned counsel appearing on behalf of the appellants
submits that while disposing of the writ petition, the Division Bench
of this Court had noticed in the order dated 04.10.2013 that they had
interacted with the child and material observations made by the
Division Bench in the order so passed by this Court have been ignored
by the Family Court while passing the impugned order dated
19.05.2018. Counsel for the appellants further submits that on account
of change of circumstances, the Family Court has erred in not handing
over the interim custody of the child to the appellants herein. It is
contended that at the time when the criminal writ petition being
W.P.(Crl). No.1177/2013 was listed for hearing, the appellant no.1
was in Jail, while the appellants no.2 and 3 had been declared as
proclaimed offenders. It is strongly urged before this Court that for
these reasons, the Division Bench of this Court granted interim
custody of the child to the maternal grand-parents. Learned counsel
contends that as of today, all the three appellants are out on bail and
the appellant no.1, being the father, would be the natural guardian and
the best interest of the child would be served in case the interim
custody is granted to the appellant No.1. Counsel further submits that
continued stay of the minor child with his maternal grand-parents
would have an adverse impact on the upbringing of the child, who is
being continuously poisoned by the maternal grand-parents, being
respondents no.1 and 2 herein, who are holding the appellants guilty
for the death of the mother of the child. It is further contended that in
all likelihood, the appellants would finally be acquitted before the
Trial Court as the appellants had no role in the death of the deceased
Suman.
8. We have heard the learned counsel for the appellants and carefully
examined the order dated 19.05.2018 passed by the Family Court.
9. At the outset, we may notice that the Family Court has extended the
interim custody of the child for a period of six months from the date of
order, i.e., 19.05.2018. The Family Court, in our view, has taken into
account the fact that the minor is not comfortable and had refused to
meet or talk to the appellants. As observed by the Family Court, the
child even started weeping after seeing his father, the appellant no.1
herein, in the Chamber. The Family Court also observed that the child
was not found under any pressure or tortured, but had voluntarily
shown the emotions in weeping. Having examined the child, the
Family Court formed an opinion that it would be highly unjust and
would cause mental trauma to the child if directed to live with the
appellants herein. The Family Court was also satisfied that the
maternal grand-parents were properly looking after the welfare of the
child, who are providing him good education according to best of their
capacity and the Family Court deemed it proper to decline the interim
custody of the child to the appellants herein. Importantly, the Family
Court has recognized the fact that in case the child continues to meet
his father in the presence of the court counsellor that would erase the
bad feeling about his father and make the child comfortable with his
father and grand-parents. The Family Court has further gone to
observe that he would expect the respondents, appellants herein to
bring "some things" such as chocolates, toys, comic books or any
other reasonable thing etc., which the child demands so that it gives a
chance to the child to get attracted to his father and grand-parents. We
have extracted the observation of the Family Court to show that the
Family Court has made all efforts to ensure that the child becomes
comfortable with his father and grand-parents before a final view is
taken in the matter, which in our view is the right approach having
regard to the fact that the child sometimes felt extremely
uncomfortable to meet his father and grand-parents as observed by the
Family Court.
10. We find no infirmity in the order passed by the Family Court. The
present appeal is devoid of any merits, moreover it is only an interim
order. Resultantly, the appeal is dismissed.
G.S.SISTANI, J.
SANGITA DHINGRA SEHGAL, J
JULY 31, 2018
pst
