"Perversity Requiring Correction": P&H HC Sets Aside Trial Court's Order Denying Children Custody To Mother Relying On Infidelity Allegations

The Bench of Justice Sudhir Mittal observed that in view of Section 17 of the Guardian Act as well as Section 13 of the Minority Act, the welfare of the minor is the paramount consideration to be kept in mind by the Court while appointing a guardian.

The Bench also observed,

"Children are innocence personified. For their ideal development, it is essential that the period of innocence be cherished and protected. This, however, remains a pipe-dream where parents clash.."

Facts in brief

The marriage between the parties was solemnized on 03^rd May 2008 and a male child namely Lakshin was born on 16^th July 2009 (presently 11 and a half years old) and a female child namely Tiana was born on 13^th March 2017 (about 04 years old).

The parents/parties got separated on 16^th February 2019 and the wife alleged that she had been thrown out and was not permitted to take the children along with her, whereas the husband alleged that she had deserted the family.

Wife-Mother preferred a petition under Sections 7, 10 & 25 of the Guardians and Wards Act, 1890 in May 2019, in which an application under Section 12 thereof had been filed for grant of interim custody.

The said application was rejected vide impugned order dated 05^th February 2020, however, she was permitted to meet the minor children.

Amicus curiae's report

Court had appointed an Amicus Curiae, who, in his report submitted that the children miss their mother's company and that Lakshin, being older in age, was being indoctrinated against his mother. Despite the same, he was keen on meeting his mother and enjoyed her company.

Court's observations

The Court noted that allegations and counter-allegations were made by both parties. In her petition for guardianship, the petitioner-Wife/mother pleaded that the respondent-Husband/Father is a perverted person.

In the reply filed by the respondent, he claimed that the Petitioner-Wife/Mother is over-sexed and has extramarital relations and that she was not possessed of means to bring up the children.

However, the Court noted that the allegations made by either side couldn't be taken into consideration at the instant stage as they have not been proved through evidence.

Further, the Court noted,

"The learned trial Court was correct in observing so while passing the impugned order but apparently it has still been influenced by the allegations made against the mother which is a perversity requiring correction."

Also, taking into account the qualifications of Mother, the Court noted that she is a well-educated and qualified lady and that she possesses means to maintain her children.

Further, in view of the detailed report of the learned Amicus Curiae, the Court concluded that the best interests of the children lie in the custody of their mother.

Consequently, the Court directed,

"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."

Thus, the impugned order passed by the trial Court was set aside and it was directed that the custody of the minor children be transferred to the petitioner within 07 days.

The respondent has been given 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.

Case title - Megha Sood v. Amit Sood [Civil Revision No.1402 of 2020 (O&M)]

Click Here To Download Order

Read Order