GAURAV NAGPAL Vs. SUMEDHA NAGPAL

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of a learned Single Judge of the Punjab and Haryana High Court dismissing the appeal filed by the appellant. Learned District Judge, Gurgaon, had allowed the application filed by the respondent-wife under Section 6 of the Hindu Minority and Guardianship Act, 1956 (in short the 'Act') along with Section 25 of the Guardians and Wards Act, 1890 (in short 'Guardian Act').

(2.) Matrimonial discords are on the rise at an alarming rate. The sanctity of marriages is under cloud, which in a great way affects the society at large. Individuals can in no way be segregated from the society to which they belong. The cultural heritage of a country is greatly influenced by a pattern of behaviour of individuals and more so in matters of matrimony. Home can be a wonderful place to live. But continuous fights between the partners of a marriage disturb the atmosphere at home and create havoc on the members of a family. One does not need a mansion to lead a happy marital home. The foundation of a happy home is love, sharing of joys and sorrows, and not in that sense bricks and concrete. There should be cementing of hearts and not cementing of floors and walls. Life is a series of awakening. The happiness which brings enduring worth to life is not the superficial happiness that is dependent on circumstances. Ultimately, in the fight between the partners, the victims more often than not are the children. It is unfortunate that in their fight more often on account of egoism the children suffer, more particularly when the child is a girl. It is not uncommon to see that at the time of negotiation of marriage, the boy's parents shy away because the girl is from a broken family and/or the parents are divorced. The child has practically no role in breaking of the marriage, but he or she suffers. The marital discord sometimes reaches a stage where the parties are unmindful of what psychological, mental and physical impact it has on children. It is worse when there is a single child, be it a boy or a girl. The case at hand is a classic example where the child has become the focus of controversy. Bitter legal fights have been fought and the corridors of several courts including the Supreme Court have been travelled by the parties. Efforts have been made unsuccessfully to bring about conciliation between the parties. The best way to make children good said a learned author is to make them happy.

(3.) A brief reference to the factual aspects leaving out the maize of unnecessary facts would suffice. The parties got married on 14.10.1996 and the child from their wedlock was born on 15.11.1997. According to the appellant, respondent abandoned the child on 8.8.1999 but she filed a Habeas Corpus Petition before the Delhi High Court on 25.8.1999. The High Court dismissed the petition on the ground of territorial jurisdiction. Respondent filed a Special Leave Petition against the High Court's order dated 14.1.2000 and also filed a Writ Petition under Article 32 of the Constitution of India, 1950 (in short the 'Constitution'). This Court permitted interim custody of the 20 months old child with the appellant. The respondent filed a maintenance petition before the Delhi High Court and also a petition for guardianship before a learned Additional District Judge, Jhajjar. The same was later withdrawn and the petition was filed in the District Court, Gurgaon. Appellant filed his reply opposing the application on the ground that the respondent had deserted the child. By order dated 2.5.2002, learned Civil Judge dismissed the application for interim custody holding that any disturbance by changing the custody of the child would traumatize him and shall not be conducive to the welfare of the child and it would affect the mental balance of the child who had developed love and affection for his father and his family members. A Revision Petition was filed by the respondent before the High Court. The High Court granted the visitation rights to the respondent by order 30.9.2002 but continued the interim custody with the appellant. The visitation rights fixed by the Court were in the following terms :