Dismissed

Surinder Kumar v. Sukhversha

Punjab & Haryana HC22 Aug 2013FAO/2804/2007

Case brief

AI extract

What is this about?

The High Court dismissed the appeal seeking custody of minor sons. It held that disturbing the children's custody with their mother was improper given their age, prolonged residence with her, and appellant's lack of evidence due to procedural defaults at the trial stage.

What did the court decide?

Custody of the minor children with the respondent mother remains unaltered; the appeal is dismissed.

Surinder Kumar Vs Sukhversha — Child Custody and Guardianship | Punjab & Haryana HC (2013)

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FAO No.2804 of 2007

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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FAO No.2804 of 2007 Date of decision: 22.08.2013

Surinder Kumar

.....Appellant

versus

Sukhversha

... Respondent

CORAM : HON’BLE MR. JUSTICE S.S.SARON HON’BLE MR. JUSTICE S.P.BANGARH

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Present: Mr. Gauravjit Singh. Advocate for the appellant.

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None for the respondent.

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S.S. SARON, J.

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The appellant-Surinder Kumar on 08.08.2001 filed a petition under Section 25 of the Guardians And Wards Act, 1890, in the Court of Guardian Judge, Jalandhar seeking custody of his minor sons namely Divyansh Condal and Jatin Condal. The said petition was dismissed by the learned Guardian Judge, Jalandhar on 15.01.2007. Aggrieved against the same, he has filed the present appeal.

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The marriage between the parties was solemnized on 22.01.1995. Thereafter they lived and cohabited together as husband and wife at Jalandhar for six years. From the marriage they had two sons namely Divyansh Condal and Jatin Condal who were

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Amit Kaundalborn on 25.01.1996 and 13.06.1998 respectively. According to the 2013.10.10 14:12 I attest to the accuracy and integrity of this document Chandigarh

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FAO No.2804 of 2007

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appellant he cared for the children and had great love and affection for them. However, the respondent used to beat them, ill-treat them and she did not care to prepare meals for them. It is alleged that the respondent and her relatives on 13.12.2001 forcibly took the children with her. The matter was reported to the Police. However, it had no affect. The respondent was keeping the children in a small accommodation and without amenities of life to which the children were unused to; besides, two business concerns and a factory were operating from the small accommodation where the children stayed. The respondent could not look after the children; besides, she was unemployed and had no source of income. The children were also suffering from jaundice. The appellant had got prepared fixed deposits worth Rs.1 lac approximately in the names of both the children.

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The respondent on being summoned filed her written statement. It was alleged that the petition had been filed by the appellant as a counter-blast to the award of maintenance in her favour by the matrimonial Court in proceedings under Sections 24 and 26 of the Hindu Marriage Act. It is admitted that the children were born from the marriage between the parties. It is also admitted that the charges for delivery were borne by the appellant. It is, however, denied that the children were suffering from jaundice. The other averments were also denied. It is submitted that the apepllant and his family members has no love and affection for the children. It is denied that the respondent along with her relatives had forcibly

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Amit Kaundal 2013.10.10 14:12 I attest to the accuracy and integrity of this document Chandigarh

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FAO No.2804 of 2007

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taken the minor children. In fact after the respondent had been turned out from the house, the appellant had never bothered to pay a single penny.

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Rejoinder was filed by the appellant reiterating the averments made in the petition and denying those made in the written statement.

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From the pleadings of the parties, the learned Trial Court framed the following issues:-

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“1. Whether the petitioner (now appellant) is entitled for the custody of Master Divyansh Condal and Master Jatin Condal? OPP

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Relief.”

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The examination in chief of the appellant was recorded as PW-1 in part. He was partly cross-examined. Later he did not appear for further cross-examination despite availing number of opportunities including last opportunity. The evidence of the appellant was closed by an order passed on 15.01.2007 as the appellant did not submit himself to complete cross-examination. His deposition was held to be inadmissible in evidence. Ashok Kumar (PW-2), Khazan Chand (PW-3) and Rattan Lal (PW-4) tendered in evidence their duly sworn affidavits as their examination in chief. However, thereafter they failed to appear and did not subject themselves to cross-examination. Accordingly, it was held by the learned Guardian Judge that their deposition in examination in chief

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could not be read in evidence. The appellant also examined Bhajan

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Amit Kaundal 2013.10.10 14:12 I attest to the accuracy and integrity of this document Chandigarh

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FAO No.2804 of 2007

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Chand (PW-5) who was a formal witness. Since the witnesses were not produced for cross-examination despite availing number of opportunities, the evidence was closed. In view there being no evidence on record, it was held that the appellant had failed to prove issue No.1. Accordingly, his petition was dismissed.

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In the appeal filed by the appellant in this Court, it was inter alia stated that on 22.11.2006, the appellant was partly crossexamined and on the request of counsel for the respondent, the case was adjourned. The next date got noted to the appellant by the Court staff was 08.02.2007. The said date was also noted by Mr. Naresh Aggarwal, Advocate counsel for the appellant before the Court below. On 08.02.2007 when the appellant went along with his witnesses to the Court, the case was not shown in the cause list. On inquiry made by him, he was informed that the case had been taken up for hearing on 15.01.2007. Since no one was present on behalf of the appellant, the learned Guardian Judge, Jalandhar closed his evidence by order and on the same day after hearing arguments, the petition filed by the appellant had been dismissed. This came as a surprise to the appellant as he had noted the date as 08.02.2007.

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Notice of motion was issued by this court on 05.10.2007 for 07.12.2007. On 06.11.2008, this Court after talking to the parties was of the view that no settlement was possible. The case was adjourned for arguments to 06.02.2009. Learned counsel for the appellant was asked to produce interim orders passed by the learned trial Court from the date of framing issues till the date of closing the

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Amit Kaundal 2013.10.10 14:12 I attest to the accuracy and integrity of this document Chandigarh

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FAO No.2804 of 2007

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evidence. On 06.02.2009, on the request of counsel for the respondent, the case was adjourned to 27.04.2009. On 27.04.2009 learned counsel for the appellant prayed for time for producing before this Court the diary of Mr. Naresh Kumar Aggarwal, Advocate who had appeared for the appellant in the Court below as well as the brief on which, wrong date had been mentioned. The case was adjourned to 11.05.2009. On the said date, time was taken to comply with the order dated 27.04.2009 and the case was adjourned to 02.07.2009. On the said date i.e. 02.07.2009, it was observed that in the order dated 11.05.2009, the appellant was required to place on record the Court diary of Mr. Naresh Kumar Aggarwal, Advocate who had appeared for the appellant in the Court below as well as the brief on which, wrong date had been mentioned. However, the same was not forthcoming. Instead an affidavit of the appellant was filed, copy of which was given to counsel for the respondent. As such the case was taken up for arguments and it was admitted.

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After admission, the trial Court record has been received which has been perused. The issues in the case were framed on 20.10.2003. Thereafter no evidence of the appellant was led on 05.02.2004, 11.05.2004 and 16.09.2004. Then on 13.01.2005, affidavits of three PWs were tendered as evidence in examination in chief. Cross-examination was deferred on the request of learned counsel for the respondent till 18.03.2005. The case was adjourned to 18.03.2005 and then to 25.04.2005. On 25.04.2005 one PW

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(Rattan Lal) was present and examined. However, cross-

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Amit Kaundal 2013.10.10 14:12 I attest to the accuracy and integrity of this document Chandigarh

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FAO No.2804 of 2007

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examination of Rattan Lal (PW-4) who was present, was deferred and he was bound down for 19.07.2005. The remaining evidence of the appellant, if any, was also ordered to be produced on the adjourned date i.e. 19.07.2005. The case was then taken up on 19.07.2005. On the said date one PW was present and examined. The case was then adjourned to 17.08.2005, 01.09.2005, 09.09.2005, 22.09.2005, 28.10.2005, 16.11.2005, 28.11.2005 and 19.12.2005. On the said dates, however, the matter regarding visitation rights of the children was considered. The case was then taken up on 10.02.2006 for evidence of the appellant as it had been adjourned for his evidence. However, no witness was present and on request, it was adjourned to 04.03.2006. No PW was present thereafter on 04.03.2006, 21.04.2006, 06.06.2006 and 22.08.2006. On 22.08.2006 last opportunity was granted to the appellant to conclude his evidence on 20.10.2006. On the said date i.e. 20.10.2006, the case could not be taken up as 20.10.2006 to 22.10.2006 were holidays and the case was taken up on 23.10.2006. No PW was present on 23.10.2006 despite last opportunity. Accordingly special last opportunity was granted to the appellant to conclude his evidence on 22.11.2006. On the said date i.e. 22.11.2006, cross-examination of the appellant was conducted in part and his further cross-examination was deferred as counsel for the respondent had to go out of station after lunch. Accordingly, the appellant Surinder Kumar was bound down for 15.01.2007. The remaining evidence, if any, was also asked to be produced on that

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Amit Kaundal 2013.10.10 14:12 I attest to the accuracy and integrity of this document Chandigarh

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FAO No.2804 of 2007

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date. Special last opportunity was ordered to continue. On 15.01.2007, no PW was present despite special last opportunity. The case was ordered to be put up after lunch. The Court waited upto 3.15 p.m. Thereafter, the evidence of the appellant was closed by order and the case was proceeded with under Order 17 Rule 3 CPC. On 15.01.2007, itself the impugned judgment and order was passed.

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It may be noticed that the Court diary of Mr. Naresh Kumar Aggarwal, Advocate who had appeared for the appellant in the Court below and the brief of the case which were to be produced were not produced. The appellant, however, filed an affidavit dated 01.07.2009 in this Court in which he inter alia stated that he inquired about the case diary and file cover from his advocate, who informed him that the same were not available with him.

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Therefore, there is no evidence to substantiate the case of the appellant. The order dated 05.01.2007 by which the evidence of the appellant was closed is though assailed in the grounds of appeal, however, in view of the failure of the appellant to produce the case diary of his advocate and also the file cover of the case, there is no material to set aside the said order even.

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It may be noticed that the date of birth of Divyansh Condal is 25.01.1996. Therefore, he is about 17 years of age. He is living with his mother (respondent) for all these years and it would be improper to disturb his custody at this stage. The Supreme Court in Keshav R. Thakur and another versus Suchhibai, (2005) 9 SCC 424 considered

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the case of a boy living with his grandparents by way of interim orders Amit Kaundal 2013.10.10 14:12 I attest to the accuracy and integrity of this document Chandigarh

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FAO No.2804 of 2007

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since his father's death when he was six years old. The boy was aged 16-17 years when the appeal came up before the Hon'ble Supreme Court. It was held that the boy had remained in the care and control of his grandparents for his entire life and it would not be appropriate to grant custody of the boy to his mother at the said stage. The child was old enough to know his own mind. The mother was, however, held entitled to meet her son whenever she approached her father-in-law.

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The date of birth of Jatin Condal is 13.06.1998 and he is about 15 years of age. Both the children have lived with the respondent for all these years. They are old enough to know their interest and welfare. Therefore, at this stage, it would be improper to disturb their custody especially when there is no evidence on record to substantiate the case of the appellant. The appellant himself did not get his entire crossexamination conducted; besides, three PWs who tendered in evidence their affidavits did not appear thereafter for cross-examination. Therefore, their examination in chief is of no relevance.

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Keeping in view the age of the children and the fact that they had lived with the respondent for all these years, it would be inexpedient at this stage to disturb their custody especially when there is no evidence on record.

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In the circumstances, there is no merit in the appeal and the same is accordingly dismissed.

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Amit Kaundal 2013.10.10 14:12 I attest to the accuracy and integrity of this document Chandigarh

Surinder Kumar v. Sukhversha

Case brief

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What did the court decide?

Surinder Kumar v. Sukhversha

Case brief

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