- (1.) Petitioner-Husband is aggrieved of the impugned order dated 09.03.2015 of Guardian Judge, Ludhiana, whereby, an application seeking interim custody of the child from mother, has been dismissed while according visiting rights. Mr.Arun Jain, learned Senior Counsel assisted by Mr.Abhishek Dhull, Advocate submits that marriage between husband and wife, i.e., petitioner and respondent was solemnized on 10.12.2006. On 19.01.2008, a male child, namely, Vivan Maini was born. As per the case set out in a petition under Section 25 of Guardian and Wards Act, originally filed at Ludhiana and thereafter, transferred at Hoshiarpur, when the child was 6 1/2 years old, wife along with child left the matrimonial home and started residing at Hoshiarpur. He submits that during the period the child remained at Ludhiana, achieved many accolades as he had participated in all the competitions and stood first, second, in essence had been coming out with flying colours either it be Tricycle Race, Fancy Dress, Hindi and English Poetry, Biscuits Race, Solo Dance, Run for Fun, Alphabet Race, Story Telling, Competition of Best of Waste, Sorting Competition, Clay Modeling, Rabbit Race, Colouring, Quiz, Conversation Competition, Hurdle Race, Talk to Rock, Basket Ball, Cap Chase, Rubbish to Furnish, Tongue Twister, Memory Game, Self Intro, Tease the Brain, Touch and Feel, Marshal Art, Long Jump etc. He was studying in one of the best schools in Ludhiana, i.e. Jesus Sacred Heat School. The school certificates in this regard are annexed as Annexure P-2 (colly). He further submits that maternal uncle of minor child, i.e., brother of the respondent is involved in an FIR bearing No.109 dated 24.08.2014 registered with P.S.Sadar Hoshiarpur registered under Narcotics Drugs and Psychotropic Substances Act, 1985 for possessing 7 grams heroin (diacetylmorphine). In fact, he is drug addict and maternal grand father of the child, i.e, father of the respondent is suffering from Tuberculosis and is under constant treatment. The diseases Tuberculosis is a communicative, thus, there is every apprehension 0that it may not be contracted by minor child. The atmosphere in the house at Hoshiarpur is not congenial and suitable for the child and it would seriously affect his upbringing, approach to life and schooling, much less, studies. The child at such tender age imbibes culture, habits, day-to-day routine being followed in the house, whereas, the petitioner, who, is having a business of ready made garments at Mall Road, Ludhiana and has sufficient means not only to take care of the child but had an arrangement for upbringing of the child. There would not be any impediment hindrance in his studies which he had been pursuing in the aforementioned school. Ludhiana is A class city vis-avis Hoshiarpur. Though the trial Court declined the relief of interim custody but granted the visiting rights to meet the minor in the chamber of the counsel for a period of two hours from 2.00 p.m to 4.00 p.m and the taxi and other travelling expenses for the said purpose will be borne by the petitioner. Even the aforementioned directions have not been complied with and a contempt petition, in this regard, is stated to be pending. He further submits that no doubt, welfare of the child is prime importance and it is also essential and necessary that the custody of the child at the present age of 8 1/2 years old can be with either of the parents. Continuous stay of the child with the mother may not hinder his development or change his attitude or interest/ love and affection for the petitioner. Whereas, in every likelihood that respondent may pollute the mind and tutor the child against the petitioner. In fact, there is no healthy environment at Hoshiarpur, thus, urges this Court for setting aside of the impugned order and further his client is not averse to extending the visiting rights to the respondent on any terms and conditions which this Court may deem it appropriate.
(2.) Mr. Piyush Khanna, learned counsel appearing on behalf of respondents No.1 to 4 submits that child has been admitted in the best schools of the Hoshiarpur, i.e., Toddlers Home Study Halls and during hearing passed on copy of the certificates of the merits to show that he had been equally excelling in all the competitions as he had been participating at Ludhiana, so therefore, there is no falling back in his ability and capability in any of the competitions. His overall attitude and aptitude in the life is similar as it was in Ludhiana. The maternal uncle has already joined the Rehabilitation Centre and undergoing the treatment. Whereas, the maternal grandfather had already been treated as the aforementioned disease is curable. Had it been so, the child by this time would have contracted but all the parameters of prevention have been taken care of.
(3.) In support of his aforementioned contentions, he relies upon the judgments of the Hon'ble Supreme Court in Vikram Vir Vohra and Shalini Bhalla, 2010 4 SCC 409 and Dhanwati Joshi vs. Madhav Unde, 1998 1 RCR(Civ) 190 to contend that in such circumstances, much less, by keeping in view the welfare of the child, custody of the child should not be handed over to the father. No doubt, as per the Hindu Minority and Guardians Act, 1956 (hereinafter referred to as "the Act"), in any case, there is a bar of handing over the custody of the child below 05 years to the father but yet keeping in view the aforementioned facts and circumstances, no harm would be caused, in case, the order under challenge is maintained and nothing prevents the petitioner to conclude the trial of the petition filed under Section 25 of the of Guardian and Wards Act, as expeditiously as possible, in order to bring the litigation to some logical end. I have heard learned counsel for the parties and appraised the paper book and of the view that in such a sensitive and delicate matters, the Court should be wary in deciding the controversy. There is every possibility, in case, the child remains in the custody of the wife for innumerable period, some steps may be taken to tutor and pollute his mind but equally so, other attenuating circumstances are required to be seen regarding his daily needs which child requires at this stage. It is the mother, who, knows the pulse of the child at just a simple glare. On the other hand, father is not able to make out the needs and basic necessities, much less, day-to-day requirements of the child and the daily chores. Normally in our Indian society, the husbands are devoted to their profession or vocation/business etc., put their hard labour and sweat in earning ensures for the uplifting of the family and therefore, they got less time towards house. Though expectations are there, it is only mother, who, caters to the day-to-day requirement of the child. Paramount consideration is welfare of the child, for the purpose of custody which is to be looked into. The Court should be circumspect in passing the order in utter haste as the fall out of the order, i.e., removal of the child from the mother's custody, can be drastic, particularly of the minor child in the present case, who, has been in continuous care and observation of the mother during the period husband and wife lived together, in case, it may result into mental hardship to child. The most appropriate and feasible path to be adopted is to issue an appropriate direction to the trial Court for expeditious disposal of the petition for seeking custody. The aforementioned view of mine is supported by the judgment of the Hon'ble Supreme Court in Ruchika Abbi and another vs. State of National Capital Territory of Delhi and another, 2016 1 RCR(Civ) 667. However, the respondentwife is directed to maintain the visitation rights as noticed and directed and none of the party should make any endeavour or attempt to violate or cause any disobedience because it is in the interest of child, so of having not kept at bay from the father for infinite period.;