The Punjab and Haryana High Court, in the case of Laxmi Roy & another versus Deepa & another, disregarded the petitioner’s stand that just because the respondents were Advocates by profession, they were unable to watch the welfare and take care of their child. The court held that such a ground 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 is also a mother of the child.
The facts of the case are that respondents Deepa and Sanjeev Roy (both Advocates by profession) got married and gave birth to Utkarsh Rai.
Sanjay alleged that Deepa did not care for the child, in the response of which she left the matrimonial home and also filed a Criminal Writ Petition during the pendency of the custody case, praying for a writ of habeas corpus for production of the minor child before the Court from the illegal custody of her husband, grandparents, and Sanjay Roy.
Since the matter was also pending before the Guardian Judge, Chandigarh, this court issued direction to the said court to expedite the proceedings.
The petitioners preferred an application under Order I Rule 10 read with Section 151 CPC, which was dismissed holding that the custody of the minor child was a matter between the wife and the husband and the applicants being parents of husband are neither necessary nor proper parties for proper adjudication of the petition.
The petitioners challenged the above order and referred to the provisions of Section 6 read with Section 13 of the 1956 Act, which asserted that the welfare of the child is the prime consideration for the Court. Reliance has also been placed upon the judgment of the Division Bench of this Court in Kajal Versus Rajesh Rana 2015 (3) R.C.R. (Civil) 195 to contend that when the minor child is living with his father since the time of his birth, who has been taking care of him and the mother has not bothered to know about his welfare before filing the petition for custody, the welfare of the child has to be seen.
The High Court observed that the intent and purpose of the statute has to be given primacy. 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 concerning the welfare of the child as to who would better promote the same.
Merely because the petitioners have been impleaded as party respondents to the writ petition, does not, in the considered view of this Court, give a right to the petitioners for moving an application for being impleaded as a party to the list, which shows the intent on the part of the petitioners to delay the proceedings.
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 a narrow outlook towards life and society. The plea of petitioners about the inability of Deepa to look after the welfare of the child because she is an Advocate by profession is unacceptable.
The court relying on the judgement of Hon'ble Supreme Court in Kajal's case held that in a case of custody of the minor, the 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 petition was dismissed and direction was given to the trial court to complete the pending proceedings within a period of three months from the next date of hearing fixed before the trial Court.
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