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VIVEK SINGH V. ROMANI SINGH

Vivek Singh v. Romani Singh, CA No. 3962 of 2016, SC. 13 February, 2017

ISSUE:

  • Whether the father or the mother was entitled the guardianship of the child?

RULE:

  • Section 13 of the Hindu Minority and Guardianship Act, 1956
    13.Welfare of minor to be paramount consideration. –
    (1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
    (2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.

FACTS:

  • Vivek and Romani were an army officer and teacher at Kendriya Vidyalaya respectively, who were married in November 2007.
  • They soon began to face matrimonial discord. In August 2010, the fight reached such a stage where the respondent was forced to leave the matrimoial house.
  • The effect of disruptions between the two came down heaviest upon their daughter, who was only two years old at the time. When the respondent was leaving the matrimonial house, she tried taking the child with her, but the appellant did not allow her to do so.
  • It was upon this that the respondent has filed a petition for guardianship and custody of the child at a family court in New Delhi.
  • The judge was of the opinion that the appellant was fit to take custody of the child. The mother then appealed to the high court, which allowed the appeal and decided in favor of the mother, stating that she was more apt to take care of a five year old girl than the father.
  • An important fact to note is that during the pendency of the high court’s verdict, custody of the girl remained with Mr. Vivek, the appellant in this appeal. However, after the verdict was delivered, custody was transferred to the mother, while the father had been given specific visitation rights.
  • The appellant however did not comply with these rules, because of which he was charged with contempt, the consequence for which was that the court’s verdict had been stayed. As a result of this, the child continued to remain in the custody of the father for an extended period of time, and the respondent’s (mother’s) visitation rights had been restored.

HELD:

  • The core of the appellant’s argument was that the child had stayed with him for a long period of time. The court however observed that the child was able to stay with her father for an extended period of time solely because the appellant was charged with contempt, hence leading to a stay on the verdict initially been given by the high court.
  • In this way, the appellant was to be the beneficiary of his own wrongs, which was something the court could not permit. During the psychological analysis conducted by the court, it was unearthed that the child wished to continue living with her father so as avoid deviance with her ongoing lifestyle.
  • Normally, this would serve as a deciding factor in any case, but the court deemed that this was only one side of the picture. Since the moment of the separation, the respondent made it clear that she wished to have custody of her daughter.
  • For the reasons mentioned earlier, this however was not able to happen, as a result of which the girl remained in the custody of her father. The girl thus was void of the experience of growing up with her mother.
  • To quote, “A child, who has not seen, experienced or lived the comfort of the company of the mother is, naturally, not in a position to comprehend that the grass on the other side may turn out to be greener.”
    The court then proceeded to emphasize on the effect and importance of a mother on the development of a child.
  • It was acknowledged that despite the mother’s natural advantage in this kind of scenario, it is entirely possible that for the child’s welfare, the father would be better suited to take care of the child.
  • This however would be possible only when “the playing field is level to both parents.” In this particular case, the field itself undoubtedly tilts towards the mother. Her being a teacher at the respected Kendriya Vidyalaya will have several positive implications on the upbringing of the child, especially if the child were to study in the same school.
  • On the other hand, the appellant being an army officer has no such positive implications on the child.
  • To the contrary, this would imply that the husband would be able to spend far lesser time with his daughter. Keeping these circumstances in mind, the court awarded the mother with guardianship and custody of her daughter.
    The court further made provisions to ensure that the daughter was enlisted in Kendriya Vidyalaya, where the respondent was teaching.