DARSHAN MALIK Vs. RAJESH @ RADHESH

JUDGEMENT

(1.) The instant appeal has been preferred by the appellant impugning the judgment dated 30th August, 2017, passed by the Ld. District Judge, Family Court, Gurugram (hereinafter referred to as 'Ld. Family Court'), vide which the petition of the appellant filed under Section 7 and 25 of the Guardian and Wards Act, 1890 read with Section 6 of the Hindu Minority and Guardianship Act, 1956, seeking custody of the minor sons, was dismissed.

(2.) A few facts necessary for adjudication of the case, as narrated in the petition filed by the appellant before the Ld. Family Court may be noticed. Marriage between the parties was solemnized on 15.11.2002 at Village Garauli Khurd, district Gurugram, as per Hindu rites and ceremonies. On the same day, the younger sister of the respondent-wife also got married to the younger brother of the appellant. After their marriage, parties lived and cohabited together as husband and wife at Village Sihi, Faridabad and two sons were born out of this wedlock on 21st May, 2004 and 06th January, 2006, respectively. Everything as per the appellant-husband was going on well in his marriage with the respondent-wife till 01.01.2007, when his brother, who was married to the sister of the respondent- wife, in a fit of rage murdered his wife i.e. younger sister of the respondent-wife. Thereafter, a case under Section 302 IPC was registered against the younger brother of the appellant and other members of the family. However, after investigation, only his brother was charged and tried while rest of the members of the family were discharged. Later on, at the behest of the members of the family of the respondent-wife, the respondent-wife left the matrimonial home on the night of 19.03.2007 along with both the minor sons and also decamped with all the valuables etc. The appellant-petitioner tried many a times to bring the respondent-wife back into the conjugal fold, but without any success. Rather, as per the appellant-husband, a false case under Sections 498-A, 406 IPC was registered against the appellant-husband and his family, leading to a great deal of trauma and mental harassment to him and the family. As per the appellant-petitioner, during the subsistence of his marriage with respondent, he made earnest efforts to keep her and the children happy and also shifted to his uncle's place, so that the respondent-wife and children could live in a tension free and conducive environment. Learned counsel for the appellant urged that since he had deep love and affection for his minor sons, he wanted them to be brought up in a atmosphere, which would be conducive for their all round of development. He inter alia urged that since the respondent-wife was not financially stable and did not have any steady source of income to maintain herself as well as the children, being dependent on her old and infirm father, he should be handed over the custody of the children.

(3.) In the present case, the following issues were framed by the Ld. Court below:-