Punjab and Haryana High Court: Sudhir Mittal J. sets aside the impugned order and directed the custody to the mother subject to the disposal of the main petition for custody.

The facts of the case are such that marriage between the parties was solemnized and two children being Lakhsin 11 years old boy and Tiana 04 years old girl have been born out of wedlock. The petitioner has alleged that she was thrown out of the marital house and she was not permitted to take her children along with her. A petition under Sections 7, 10 & 25 of the Guardians and Wards Act, 1890 (i.e. Guardian Act) has been preferred by the wife wherein an application under Section 12 has been filed for grant of interim custody which came to be rejected vide impugned order which has been challenged in the instant petition.

Counsel for the petitioners Vikas Kuthiala submitted that Tiana is below 05 years of age and Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (i.e. Minority Act) stipulates that custody of such child should ordinarily be with the mother. The mother is a working professional with a post-graduate degree capable of taking care of herself and her children. Moreover, as per the deposition of the children, it is clear that the children enjoy their mother’s company and the father and their grandmother speaks ill about the mother which can create a negative impact on their mind.

Counsel for the respondents Vikas Bahl submitted by relying on the maintenance application to state that the application is proof that she needs aid to take care of the children and is not capable to do so individually. It was also alleged that she is a person of questionable character and thus Section 6(a) of the Hindu Minority and Guardianship Act, 1956 does not apply to her as in her company children would suffer.

The Court observed that the petitioner is a postgraduate and that she worked as a teacher in Delhi Public School for 10 long years shows that the petitioner is a well educated and qualified lady and possesses the means to maintain her children. The fact that the children also miss their mother and wants to meet her and be with her goes on to show that the best interests of the children lie in the custody of their mother.

The Court thus held “Tiana is under 05 years of age and in view of Section 6(a) of the Minority Act, her best interests would definitely be served in the custody of the mother. Lakshin cannot be separated from his sister as the same would traumatize both of them.”

The court further directed the custody of the minor children be transferred to the petitioner within 07 days of receipt of a certified copy of this judgment and the father to have visitation rights on 1st and 3rd Saturday of every month between 3.00 pm to 5.00 pm at the residence of the petitioner and in her presence.

In view of the above, impugned order was set aside.[Megha Sood v. Amit Sood, Civil Revision No.1402 of 2020 (O&M), decided on 26-03-2021]

Arunima Bose, Editorial Assistant has reported this brief.

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