PREMCHAND GOEL Vs. SANJAY DALMIA

JUDGEMENT

(1.) THE application has been filed under Sec. 12 of the Guardians and Wards Act, 1890 read with O.4, Rule 8 of the Original Sides Rules for a direction to the respondent to produce minor Piyush before the Court and grant his interim custody to the applicant.

(2.) THE original Petition has been filed under Secs.3 and 7 to 10 of the Guardians and Wards Act read with O.21, Rules 2 and 3 of the High Court's Original Side Rules for the appointment of the petitioner as the guardian of minor Piyush.

(3.) THE respondent has filed a counter and an additional counter and the contents are as under: THE marriage between the respondent and Archana on 22.1.1999 was an arranged marriage. Though initially the couple were happy, due to her mother's untimely death and certain other problems relating to her family, Archana became depressed and used to cry often. On 22.1.2001 the wedding anniversary of Archana and the respondent as also the engagement ceremony of the respondent's younger sister Madhuri were celebrated at Hotel Sindhoori. Archana actively participated in the celebration and was very happy. THE petitioner and his family members also attended the function. THE tragedy that followed was not expected by anybody. In fact, he had booked rail tickets for himself and his wife to go to Kulu-Manalai and other places on a holiday on 23.2.2002, i.e. one day after the child's first birthday. On 29.1.2001 Archana was very depressed after the couple returned late in the evening from a marriage function and she was crying. THE respondent tried to speak with her father, but her brother picked up the phone. She interrupted and disconnected the line telling the respondent not to speak. THE next day, i.e., on 30.1.2001 the respondent's father and younger brother left with him to the factory at about 9 a.m. and shortly thereafter, the father returned home to pick up the respondent's mother and went to see a relative of the petitioner, who was ill. Around 11 a.m. a lady came running to the factory, which was close to the house shouting that Archana was on fire. THE respondent and others rushed and found Archana dead on the terrace and the respondent-s sister also suffering from burn injury. At that stage, the petitioner had given a statement to the police out of free will that his daughter was feeling depressed after her mother's death and therefore committed suicide. THEre was no mention about any dowry demand or harassment by the respondent or any members of his family. However, after a few days, the petitioner, apparently on being goaded into changing this version had given a complaint to the police, following which a case was registered. Though the respondent and his family members were arrested, they obtained bail. However, on the petitioner's application, the bail was cancelled. In the meantime, the petitioner filed H.C.P. No.375 of 2001 before this Court and by order dated 30.3.2001 the petition was dismissed with the observation that the child was und er the protective care of the father and his paternal relations. THE Division Bench further observed that no material had been placed before it to show that the custody of the child by the father and the paternal relations would operate adversely to the interest of the child. THE child was also produced before the learned Judges and it was observed that the child was being properly looked after. THE petitioner has not produced any specific proof that the child is being ill treated or in any manner negle cted. On the other hand, the respondent is taking all extra efforts to see that his son does not miss a mother's care and attention. It is nothing but malicious to suggest otherwise. Pursuant to the cancellation of bail, the respondent and his family members excluding his younger sister were in prison for several weeks before which bail was granted again. THE petitioner had initially influenced the police to file a case under Sec.302,I.P.C. against the respondent and his family members alleging that they had none of them including the respondent's younger sister, who tried to save Archana, was even present in the house when the incident occurred, the murder charge was dropped and altered to Sec.404-B. During the period the respondent and his people were inside the prison, his younger sister Madhuri was looking after the child. After their release, they continued to live as a joint family though in a different residence. THE respondent's sister's engagement was broken due to Archana's demise. THE mothe r and the father of the respondent are 51 and 55 years respectively and they are in good health and help him in looking after the child. His younger brother Ajay who is aged 25 years lives with them. THEy have a factory manufacturing food products and they are quite well placed financially. THE allegation regarding presentation of Rs.9 lakhs worth moveables and Rs.l lakh by cash to the respondent is false. Equally, the allegation of harassment of Archana for dowry is also false. THE petitioner gave some gifts in the form of jewellery to Archana at the time of the marriage amounting to the value of Rs.l lakh. Even these jewels were taken by Archana and given back to clear her brother's debts. THE petitioner filed Crl.O.P. No.2656 of 2001 without making the respondent a party and obtained an order of change of investigation. THE petitioner has not disclosed that the H.C.P. was dismissed on merits. It is not correct to say that the child's life is in danger. THE respondent is more interested in the child's personal safety than the petitioner. THE petitioner chose to file the petition in August, 2001 when the order was passed by this Court rejecting the H.C.P. on 30.3.2001 itself. Having filed the petition after five months of the order in the H.C.P., the petitioner has not chosen to move the application till 30.3.2001 when the respondent received notice. This would itself show the true intentions behind the petitioner's present stand for interim custody. It is only another tool for harassing the respondent and his family. It is not as though the respondent and his family members are busy with the criminal case 24 hours a day. THE case is called usually once in a month till the stage of trial. As regards the allegation that the atmosphere in the house of the respondent is not conductive, it is unfortunate and false. THE Division Bench of this Court found at the respondent has not incurred any disqualification to be deposed as guardian of his son. THE child is even now looked after with all the love and care necessary for the development. THE child cannot be left with the petitioner and his family, who are strangers even for a short while. It would damage the child's psychology. If custody is given to strangers, the child would be denied the natural atmosphere and company of his father and family. THE balance of convenience is clearly in favour of the respondent. THE application has to be dismissed.