PARAMJIT SINGH LAMBAQ Vs. PRABJOT KAUR

JUDGEMENT

(1.) This Revision brings to the surface an important question which universally affects and afflicts all persons belonging to a broken home, viz. the custody of the minor child of the two warring spouses. It cannot be over-emphasised that the paramount consideration in all such situations is the well-being of the child. It is this aspect which must be kept in focus and the individual `rights' of the parents would recede into the shadows. It is but a human frailty for the Judge to be prejudiced by the reproachable and unbecoming conduct of a particular spouse while determining the manner in which the child's time is to be apportioned. It has been noticed that the Guardian Judge does not follow a uniform practice in this regard in that sometimes the parent who does not have the custody of the child is granted a meeting of a duration of one or two hours in a month, that too in the uncomfortable and uncongenial environment of the Court, while in other cases weekly visitation or access for several hours is ordered. It is trite to state, but necessary to reiterate, that it is the welfare of the child which must be kept in the fore, either while granting custody or visitation to the parent who does not have the custody. It must also be highlighted that orders of this genre are inherently interlocutory in nature, subject to modification from time to time. It is not essential that the Court accepts consent terms presented to it by the parents. The Court is also not powerless to cancel or modify an arrangement approved by it earlier, if change in circumstances so compel.

(2.) The Statute proclaims the father to be the natural guardian of the child but clarifies that till he/she attains the age of five years, his/her custody would ordinarily be granted to the mother. The Legislature merely recognises the universal experience and observation that the mother is better equipped and inclined in bringing-up the children. Homo sapiens are the most advanced and intelligent species but there is some commonality with other animals amongst whom it is ubiquitously the mother which cares for the offspring upto adolescence. The Hon'ble Supreme Court, however, has clarified in Kumar V. Jahgirdar vs. Chethana Ramatheertha, 2004(1) Scale 149 that it does not subscribe to the observations that a mother is always preferable to the father so far as the custody of the child is concerned. Although the Hon'ble Supreme Court had found that the child had not been brainwashed in the case before it, it was expressly aware of the reality that the child's mind is invariably poisoned against the other parent. Such a practice must be unreservedly deprecated, as it is wholly deleterious to the welfare of the child concerned and to the development of the personality. Every child requires exposure to and influence of both his parents. Visitation in Court precincts should be resorted to where there is no other option, or where the conduct of a parent is deviant or unnatural thereby necessitating jural monitoring.

(3.) In the present case the Father has for various reasons, which I need not discuss threadbare, not had much interaction with his daughter. It has been explained that he was pursuing studies in the United States of America during the infancy of his daughter. Visitation between 3:00 P.M. to 4:00 P.M. on the last Saturday of the month, in the Court precincts, appears to have been granted on 23.3.2001. The present Additional District Judge has taken an adverse view of the fact that the Father did not assail the previous Order in an Appeal or Revision. In my considered view, however, it would be inappropriate to give a critical weightage to this fact. Assuming that a parent was uncaring at a particular stage in the child's life, he/she should not be shut out for all times to come. As already observed a decision should be taken not from the claim of the parent, but from the standpoint of the child concerned, since there can be no argument against the necessity for the child to spend time with both parents. In the present case the fixation of only one hour in a month has led to the consequence of the child refusing to meet her Father, that is, the Petitioner herein. Such an abhorrence towards the Father cannot but be the result of brainwashing by the Mother, which has succeeded in large measure because of the extremely limited access of the Petitioner with his daughter.