SARABKAUR Vs. SANDEEP KHARB AND OTHERS

JUDGEMENT

(1.) By way of present appeal, the appellant has challenged the judgment and decree dated 18.9.2014 passed by the District Judge (Family Court), Bhiwani whereby the petition filed by her under section 6 of the Hindu Minority and Guardianship Act, 1956 (in short "the Act") for custody of the minors, namely, Kunjal, aged 6 years and Shiksha, aged 4 years born from the wedlock of Ruchika (deceased daughter of the appellant) and respondent No. 1, was dismissed.

(2.) The facts necessary for adjudication of the present appeal as narrated therein may be noticed. Ruchika daughter of the appellant was married with respondent No. 1 on 29.4.2004 at Charkhi Dadri, according to Hindu rites and ceremonies and from the said wedlock, minors Kunjal and Shiksha were born on 7.6.2005 and 11.5.2007, respectively. In the marriage more than Rs. 15 lakhs were spent and sufficient dowry was given. Ruchika was maltreated and harassed by the respondents and after the birth of her first child on 7.6.2005, she was given merciless beatings and was turned out of the matrimonial home after keeping the child with them. On 29.10.2007, respondent No. 1 made a telephonic call to Ruchika that her younger daughter had been killed and he would also kill the other daughter as well as her and would remarry with some other lady. Due to mental shock, Ruchika committed suicide by sprinkling kerosene oil on her body and she died on 6.11.2007 due to burn injuries. After her death, respondent No. 1 performed second marriage with respondent No. 2. On knowing about the said marriage, the appellant visited the house of the respondents to bring the second child of Ruchika so that both the children be brought up but they refused to hand over her custody. On 3.5.2010, respondents No. 1, 3 and 4 came to the house of the appellant and forcibly took minor Kunjal with them and since then she is in the custody of the respondents. The respondents are not taking care of the children and respondent No. 2 who is the step mother of the minors used to give merciless beatings to the minors. Accordingly, the appellant filed a petition under Section 6 of the Act for custody of the minors. The respondents contested the said petition by filing written statement. It was pleaded therein that respondent No. 1 being the father and natural guardian of the minors had also preferential right in the interest and welfare of the minors. The minors were looked after by the respondents with full love and affection. The appellant who is an old lady, is not in a position to provide maintenance as well as better education. The welfare of the children is with the respondents and respondent No. 1 had a right to have his children brought up in his own religion, both during his life time and after his death. Further, the respondents were financially sound in comparison to the appellant. The other averments made in the petition were denied and a prayer for dismissal of the same was made. From the pleadings of the parties, the trial Court framed the following issues:-

(3.) In support of their case, the parties led their respective evidence. The trial Court took issues No. 1 and 5 together being interconnected and decided the same against the appellant and in favour of the respondents holding that the welfare of the minor children was better with the respondents than the appellant. The appellant was held entitled to the custody of the minor children. The other issues were decided in favour of the respondents. Accordingly, the trial Court vide judgment and decree dated 18.9.2014 dismissed the petition filed under Section 6 of the Act. Hence, the present appeal. Since the appeal is barred by time, an application under Section 14 read with section 5 of the Limitation Act, 1963 (for brevity "1963 Act") for condonation of 932 days' delay and exclusion of time has been filed.