A.K.SIKRI,J. - (1.) The appellant and the respondent tied matrimonial chord on November 25, 2007 as per Hindu rights and ceremonies. The appellant is an army officer posted in Meerut and the respondent is a teacher in Kendriya Vidyala-3, INA Colony, New Delhi. This, so-called sacrosanct alliance, alluded the couple, inasmuch as soon after the marriage, matrimonial discord surfaced, which has loosened the said knot. Both the parties blam each other for this sordid state of affairs. Over a period of time, relationship between the parties has been ruined, which is unfortunate. It is more so, as they have not been able to move on in their respective lives as well. But, what is more unfortunate is that the acrimony between the two of them, because of which they are living separately for quite some time, life of their only daughter Saesha Singh, who was born from their wedlock on October 29, 2008, is becoming more and more miserable. In the instant appeal, we are concerned with most delicate and difficult problem, namely, who should be given the custody of Saesha Singh.
(2.) It was on August 04, 2010, when the fight between the appellant and the respondent took an ugly turn forcing the respondent to leave the matrimonial house and the custody battle started from that date itself, when Saesha was not even two years of age. While leaving the matrimonial house, though the respondent wanted to take the child along, the appellant did not allow her to do so. After making certain peaceful efforts in this behalf, the respondent filed petition being GS No. 43 of 2010 under Section 25 read with Sections 10 and 12 of the Guardians and Wards Act, 1980 (hereinafter referred to as the 'Act') on August 26, 2010 for the custody and appointment of the Guardian of the minor daughter, Saesha Singh before the Principal Judge of the Family Court at Delhi at Dwarka, New Delhi. She stated in this petition that she had been in continuous possession, care and protection of the child since her birth and the respondent had no love and affection for the child. In his absence, when he is away for duty, his Orderly looks after the girl child. She also alleged that the appellant leaves for his office at 8.30 a.m. and returns back late in the evening and, therefore, he is not in a position to look after the basic needs of the child. On the other hand, the respondent had been devoting all her time to the child after coming from the school and during her duties in the school, the child is being looked after by her parents who had been frequently visiting the matrimonial house. She pleaded that for the mental well-being and proper upbringing of the child, her custody should be given to the respondent, being her natural mother and she be also appointed as her guardian. The appellant herein contested the said petition by filing the written statement wherein he took the stand that the respondent was not in a position to look after the child as there is nobody to look after her when the respondent goes for work. He also mentioned that respondent's parents are residing at NOIDA whereas she is working and living in Delhi. On the contrary, it is the appellant who had provided all necessary expenses for the maintenance of the child, and even the respondent. He even accused the respondent for invariably getting drunk on their visits to Army Officers Mess in the parties. The trial court framed the issue which touches upon the dispute that is whether the petitioner (the respondent herein) is entitled to custody of the child. Evidence was led by both the parties who examined themselves as PW-1 and RW-1 respectively. The Principal Judge, Family Court was of the opinion that the appellant is fit person to retain the custody of the child and, therefore, dismissed the petition filed by the respondent herein. The respondent challenged the order of the Family Court by filing the appeal, i.e. FOA No. 39 of 2012 in the High Court which has been allowed by the High Court. The High Court has found it appropriate to handover the custody of the child to the respondent/mother. In the opinion of the High Court, the respondent, being mother of a girl child who was even less than five years' of age at the relevant time, was better suited to take care of the child and this course of action is in the best interest of the child. The High Court, in the process, found fault with the approach adopted by the Family Judge, which had mainly relied upon the incident of August 07, 2010 to deny the custody of the child to the respondent on the ground that she had herself abandoned the child on the said date. According to the High Court, the incident as narrated by the appellant was not believable and the version of the respondent, on the contrary, inspired confidence. The respondent had stated that though she wanted to take the child with her, the appellant had snatched her from the respondent. According to the High Court, if the intention of the respondent was to abandon the child she would not have taken her clothes with her. The High Court also observed that the Family Judge had failed to consider that from the birth of the child, i.e., October 29, 2008 till the separation of the parties on August 04, 2010 (for a period of 21 months) the child remained through out with the respondent who had been attending her school as well as taking care of the child after the school hours and there was nothing on record to show that the respondent had neglected the child for a single day during that period and it was not even the case of the appellant.
(3.) We may also mention, at this stage, that since the petition of the respondent herein had been dismissed by the trial court, because of this reason, custody of the child remained with the appellant, during the pendency of the appeal in the High Court, though by interim arrangement visitation rights were given to the respondent. Since the appeal stood allowed by the High Court as per which custody of the child was to be handed over to the respondent, the High Court in turn granted visitation rights to the appellant, father of the child, in the following manner: "33. Since the child is a school going child and respondent is living at Meerut, in these circumstances, respondent will be at liberty to take the child from the appellant on every 4th Friday of the month at 5.30 p.m. and the child shall spend two days with the respondent. The child shall remain with the father on Friday followed by Saturday and Sunday. The child shall be returned safely to the mother on Sunday at 6.00 P.M. 34. Each year during Summer vacation custody of Baby Saesha Singh would be entrusted by the appellant to the respondent for a period of 15 days to be inter-se agreed upon between the parties and in case of any non-agreement, the dates ts be decided by the4 learned Family Court. 35. Each year during Winter vacations Baby Saesha Singh would be entrusted by the appellant to the respondent for a period of 4 days to be inter-se agreed upon between the parties and in case of any non-agreement, the dates to be decided by the learned Family Court. 36. On the birthday of child, custody of Baby Saesha Singh would be entrusted to the respondent for a period of 4 hours in the evening, the exact hours to be mutually agreed upon by the parties." ;