SHEETU KAUL Vs. MAJOR ANIRUDH SINGH

JUDGEMENT

(1.) Appellant through the medium of instant appeal is seeking quashment of order dated 24.04.2018 passed by the learned Additional District Judge (Matrimonial Cases), Jammu in case titled Sheetu Kaul v. Anirudh Singh (hereinafter for short as "impugned order") by virtue of which, prayer of the appellant for interim relief has been declined, and allowing the appellant to continue with the custody of the minor daughter till final decision of the case before the trial Court.

(2.) From the appeal, it emerges that appellant and respondent married on 31.10.2009 as per Hindu Rites and Rituals at Kota, Rajasthan, Out of the wedlock, a female child, namely, Kanishka Sisodia alias Kiwi was born on 07.07.2013, who is, as on today, less than 5 years of age. Respondent herein filed petition under Section 13 of the Hindu Marriage Act before the court of learned District Judge, Family Court, Hisar. In addition, he has also filed complaint under Section 497 of IPC alleging adulterous relation of the appellant with one Nikhil. Ultimately, when he did not produce any evidence before the said Court, the same stands closed. It is contended that respondent by playing fraud, pressure and undue influence at Hisar over the appellant got her agreed to sign the joint petition under Section 13B of the Hindu Marriage Act before the District Judge, Family Court, Hisar. It is contended that as soon as she came out of the undue pressure and influence realized that fraud is being played with her by the respondent, she withdrew the consent for mutual divorce/joint petition. Thereafter, appellant filed petition under Section 12 of the Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010 and learned City Judge, Jammu vide order dated 01.06.2017 directed respondent to handover the custody of the minor daughter to the motherappellant herein. Respondent filed objections but did not produce the minor daughter. Feeling aggrieved of order dated 01.06.2017, respondent filed Revision Petition before the Principal District Judge, Jammu. Appellant appeared before the learned Distt. Judge , Jammu and apprised about the legal and factual position and ultimately a compromise was reduced into writing by the parties in which custody of the minor daughter was mutually settled on rotational basis and pursuant to said compromise minor daughter was handed over to the appellant mother on 03.10.2017. It is contended that since 03.10.2017, minor is living with mother-appellant. It is also contended that as per the compromise deed entered between the parties, the respondent herein had to take her back on 03.01.2018 but he did not come forward because of job in the army and during her stay with the minor, the minor made number of such revelation that the appellant or for that any mother would have not returned the minor girl back to respondent/father of the minor keeping in view the welfare of the minor child and in the meanwhile, respondent filed petition under Section 13 of the Hindu Marriage Act before the Family Court at Hisar. Due to number of revelation made by the minor, appellant was compelled to file petition under Section 25 read with Section 7 and 10 of the J & K Guardian and Wards Act in the Court of Learned Additional District Judge, Matrimonial Cases, Jammu for permanently appointing her as the Guardian of the minor daughter.

(3.) Vide order dated 25.01.2018, learned Additional District Judge (Matrimonial Cases), Jammu restrained respondent from taking the custody of the minor forcibly. However, learned Matrimonial Court after hearing both the sides vide order dated 24.04.2018 has vacated the adinterim injunction and dismissed the application of the appellant for grant of interim relief. Hence, this appeal on the ground that the welfare of the child is of paramount consideration which is now settled law, yet the trial Court has failed to appreciate the said settled law and even the choice of the minor is important if she is capable of making choice which the trial Court has not looked into and the revelation which she disclosed to her mother have not looked into by the trial Court and has simply rejected the application that in the compromise deed the parties have settled all the conditions of the welfare of the child so there appears nothing to give fresh look to the contentions and apprehensions of the petitioner which is not legally sustainable under law. More so, the trial Court has not given any finding with respect to the changed circumstances which the appellant has brought on record. Learned trial court has not given any finding qua the allegations leveled and material placed on record by the appellant; that order of interim custody or custody made by any court is temporary in nature and that as per the mandate of law minor below the age of five years shall always remain with the mother is a statutory right and learned trial Court has not given any finding with respect to said right of the appellant.