P & H HC Denies Impleadment Of Grandparents To Custody Lis [Read Order]

The stand that a lady who is an Advocate by profession cannot take care of her child and would not be able to watch the welfare of the child, is a “fiction of a polluted mind”, where a working woman is “looked down upon as a careless and carefree person”, ignoring the fact that she also is a mother of the child, the Punjab and Haryana High Court on Tuesday observed.

Justice Augustine George Masih was hearing a revision petition preferred by the paternal grandparents of a 3-year old male child challenging the order passed by a Civil Judge (Senior Division), wherein an application moved by the petitioners under Order 1 Rule 10 read with Section 151 CPC for impleading them as respondents to the petition by the mother of the child under Section 6 read with Section 13 of the Hindu Minority and Guardianship Act, 1956 for permanent custody of the child, who is presently residing with the father, has been dismissed. Both the mother and the father are Advocates by profession. Allegation on the part of the father was that after joining the profession, the mother not only started maltreating but also did not care for the child. There was a quarrel between them, because of which respondent the mother abandoned the child and left the matrimonial home two years ago. Even during the period when the respondents were residing together, the petitioners, who are grandparents of the minor child, took care of the said minor as both the respondents remained busy with their practice.

The Single Judge expressed that the assertion that the respondent-mother being a professional i.e. practising Advocate is unable to take care of the child in itself is “a misconceived perception”, which would mean that lady lawyers cannot be good mothers and are unable to look after the welfare of the child, which “reflects upon the thinking of the petitioners”.

“Branding lady lawyers as a class as irresponsible is unacceptable and, therefore, the welfare of the child, which includes moral and ethical values, is least expected to be protected and secured by such grandparents, who have narrow outlook towards life and society”, the Single Bench asserted.

Justice Mesih continued to observe that Women lawyers are not only successful in their professional endeavours but have proved to be bold, brave and successful mothers. “The plea of the petitioners, therefore, with regard to the inability of respondent No.1 to look after the welfare of the child because she is an Advocate by profession, is unacceptable”, reiterated the bench.

The bench was of the view that in a case of custody of the minor, primary and dominant question before the Court is the welfare of the child, which cannot be measured by money or by physical comfort alone, “which probably appears to be a consideration on the part of the petitioners overlooking the factum of the love and affection and the natural affinity of the parents to a child”. The bench appreciated that the intent and purpose of the statute has to be given primacy i.e. the welfare of the child and not the rights of the parents under a statute. “Welfare as a word is not to be given a restrictive meaning but has to be read in the widest amplitude and the Court has to decide with regard to the welfare of the child as to who would better promote the same”, said the bench.

The bench opined that merely because the petitioners have been impleaded as party respondents to the petition for habeas corpus filed by the mother (which was disposed off by the HC with a direction to expedite the proceedings in the lis for custody), does not give a right to the petitioners for moving an application for being impleaded as party to the lis, which shows the intent on the part of the petitioners to delay the proceedings. “Had the petitioners been interested, as is asserted, in the welfare of the minor child, they should have, at the very outset, moved an application for being impleaded as a party to the lis at initial stage. It is only after the proceedings have been expedited by this Court vide order dated 30.05.2019 that the present application for impleading the petitioners as party has been filed on 10.10.2019”, observed the bench, adding that this leaves no manner of doubt that the application preferred by the petitioners for impleading them as a party is not a bona fide exercise on their part. “The trial Court has seen through the hidden plan and has rightly dismissed the same”, said the bench.

While agreeing that there is no doubt that as per the provisions of Order 1 Rule 10 CPC, the Court is competent to implead any person as a party at any time, the bench added that while doing so, the intent and purpose for which such an application has been moved has also to be given due credence and weight, which the Court found to be an exercise laced with mala fides.

Accordingly, the court dismissed the challenge to the non-impleadment of the grandparents, directing the trial court to complete the proceedings within 3 months.

[Read Order]

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