# Pawan Kumar Goyal v. Neetu

- **Citation:** (2020) 9 ILRA 383
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-13
- **Case number:** Matters Under Article 227 No. 2196 of 2020
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-kumar-goyal-v-neetu-45956
- **Pages:** 4

## Headnote

A. Hindu Marriage Act, 1955 - Section 13B
- Guardianship and Wards Act, 1890 -
Section 7/25 - Custody - maintainability of
custody proceedings
The
petitioner
and
respondent
divorced
mutually. The respondent voluntarily gave the
custody of their minor child to the petitioner.
Suddenly she had a change of heart and
instituted proceedings for custody for her child.
The trial court rejected the objection filed by the
petitioner to the maintainability of custody
proceedings on the ground that the welfare and
best interests of a child cannot be bartered
away by two parties, even in a consent
agreement. The High Court did not find any
perversity in the order passed by the trial court
as the welfare of the child is the paramount
concern of any court which can only be decided
after a searching enquiry by the court. An
enquiry of this nature requires exchange of
pleadings and reception of evidence, and
fulsome consideration of relevant issues by the
learned trial court. (Paras 5, 8, 10, 11, 12)
Writ Petition disposed of. (E-10)
List of Cases cited: -

## Text

9 All. Pawan Kumar Goyal Vs. Neetu
383

12. A copy of this order be transmitted
to the lower court for compliance.
----------
(2020)09ILR A383
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.07.2020

BEFORE

THE HON'BLE AJAY BHANOT, J.

Matters Under Article 227 No. 2196 of 2020
(Civil)

Pawan Kumar Goyal ...Petitioner
Versus
Neetu ...Respondent

Counsel for the Petitioner:
Satya Prakash Shukla

Counsel for the Respondent:
--

A. Hindu Marriage Act, 1955 - Section 13B
- Guardianship and Wards Act, 1890 -
Section 7/25 - Custody - maintainability of
custody proceedings
The
petitioner
and
respondent
divorced
mutually. The respondent voluntarily gave the
custody of their minor child to the petitioner.
Suddenly she had a change of heart and
instituted proceedings for custody for her child.
The trial court rejected the objection filed by the
petitioner to the maintainability of custody
proceedings on the ground that the welfare and
best interests of a child cannot be bartered
away by two parties, even in a consent
agreement. The High Court did not find any
perversity in the order passed by the trial court
as the welfare of the child is the paramount
concern of any court which can only be decided
after a searching enquiry by the court. An
enquiry of this nature requires exchange of
pleadings and reception of evidence, and
fulsome consideration of relevant issues by the
learned trial court. (Paras 5, 8, 10, 11, 12)
Writ Petition disposed of. (E-10)
List of Cases cited: -

1. Mrs. Annie Besant Vs G. Narayaniah AIR 1914
PC 41

(Delivered by Hon'ble Ajay Bhanot, J.)

1. By the impugned order dated
14.01.2020 passed by the learned Principal
Judge,
Family
Court,
Hapur,
the
preliminary objection of the petitioner to
the maintainability of the proceedings for
custody of minor child Anni @ Awani,
under Section 7/25 of the Guardianship and
Wards Act, registered as Misc. Case No. 38
of 2019, Smt. Neetu Vs. Pawan, has been
rejected.

2. The background facts are these.

3. The petitioner and the respondent
had agreed to divorce, on mutually
acceptable terms.

4. The learned Principal Judge,
Family Court, Hapur, by judgment and
decree dated 24.04.2019, allowed the
application of the petitioner and the
respondent for divorce by mutual consent,
under Section 13 B of the Hindu Marriage
Act.

5. One of the agreed terms of the
divorce by mutual consent, was that the
custody of the minor child Anni @ Awani,
would be voluntarily made over by the
respondent Neetu, to the petitioner Pawan
Kumar Goyal. The custody of the minor
child Anni @ Awani, was handed over
voluntarily by the respondent Neetu, to her
husband Pawan Kumar Goyal in court on
29.10.2018.

6. After the annulment of their
marriage, the petitioner and the respondent
384 INDIAN LAW REPORTS ALLAHABAD SERIES
have been living separately. The minor
child Anni @ Awani, has since been living
with her father.

7. The respondent Neetu, apparently
had a change of heart, at a later point in
time. She took out proceedings for custody
of her minor child, Anni @ Awani, under
Section 7/25 of the Guardianship and
Wards Act, registered as Misc. Case No. 38
of 2019, Neetu Vs Pawan, before the
learned Principal Judge, Family Court,
Hapur.

8. The petitioner contested the
maintainability of the proceeding for
custody, instituted at the behest of the
respondent. The proceeding was in the
teeth of the child custody clause, in the
agreement between the parties, which
formed the basis of their divorce by mutual
consent. The respondent cannot now resile
from the mutual agreement, acted upon by
parties and sanctified by the decree of the
court.

9. The learned trial court by
impugned order dated 14.01.2020, set forth
these findings.

10. The child is a minor. The welfare
and the interests of the child are paramount.
The mutual agreement between the two
parties, whereby the respondent voluntarily
and unconditionally made over the custody
of the child to her father, namely, Pawan
Kumar Goyal, cannot override the welfare
and best interests of the child. The welfare
and best interests of a child cannot be
bartered away by two parties, even in a
consent agreement; in case the court finds
that such agreement does not subserve the
best interests and welfare of the child.
These facts have to be found at the trial.
The court voided the agreement being in
the teeth of Section 23 of the Indian
Contract Act.

11. On this footing the objection of
the petitioner to the maintainability of
custody proceedings, was rejected by the
impugned order.

12. Ancient and settled authority has
it that, at all times the welfare of the child
is the paramount concern of any court. To
this end, courts endeavour to approve an
environment conducive to a balanced
growth, and well rounded development of
the child. These considerations are decisive
in any matter of child custody. Such issues
can be decided only after a searching
enquiry by the court. An enquiry of this
nature requires exchange of pleadings and
reception
of
evidence,
and
fulsome
consideration of relevant issues by the
learned trial court. At this stage, the
proceedings in the trial court cannot be
interdicted, to the detriment of the minor
child.

13. There is no infirmity in the order
passed by the learned trial court. In any
case, efficacious remedy is available to the
petitioner, in case he is aggrieved by any
final order in the proceedings. Hence, this
Court declines to interfere with the order
passed by the learned trial court.

14. Faced with this at this stage,
learned counsel for the petitioner Shri
Satya Prakash Shukla does not press the
relief sought in this petition and recasts the
relief. He contends that admittedly the
respondent
had
voluntarily
and
unconditionally, handed over custody of the
child to the petitioner. She did not even ask
for visitation rights. Her conduct speaks
volumes to her lack of responsibility as a
parent. Further the child has developed
9 All. Pawan Kumar Goyal Vs. Neetu
385
strong bonds and affiliations in her current
environment, created by consent of parties.
Unravelling these bonds at this stage,
would cause emotional distress to the child.
He
submits
that
petitioner
may
be
permitted to raise these, and relevant other
issues, before the learned trial court to
establish that the paramount interests of the
welfare of the child, will be subserved by
remaining in the custody of her father.

15. In view of these submissions, and
in the interests of the child, the following
observations are made.

16. The court has to proceed very
cautiously in the matter. It is an admitted
case that the child has been staying with
her father Pawan Kumar Goyal since, 2018.

17. Minds of infants are formative.
Infants have heightened capacities to forge
bonds of affection, which strengthen into
deep intimacies with time. Courts have
long recognized the deep sanctity of bonds
and associations of infants, with their
guardians (in this case the father), created
over a period of time. The courts have also
set
their
face
against
unwarranted
disruptions in such bonds and associations.
In Mrs. Annie Besant vs G. Narayaniah,
reported at AIR 1914 PC 41, it was held:

"3. There is no difference in this
respect between English and Hindu law. As
in this country, so among the Hindus, the
father is the natural guardian of his
children during their minorities, but this
guardianship is in the nature of a sacred
lifetime substitute another person to be
guardian in his place. He may, it is true, in
the exercise of his discretion as guardian,
entrust the custody and education of his
children to another, but the authority he
thus confers is essentially a revocable
authority, and if the welfare of his children
require it, he can, notwithstanding any
contract to the contrary, take such custody
and education once more into his own
hands. If, however, the authority has been
acted upon in such a way as, in the opinion
of the Court exercising the jurisdiction of
the
Crown
over
infants,
to
create
associations or give rise to expectations on
the part of the infants which it would be
undesirable in their interests to disturb or
disappoint, such Court will interfere to
prevent its revocation. [Lyonsv.Blenkin]"

18. The trial court will have to
independently determine whether in light of
facts and evidence before it, it would be
wise
and
judicious
to
revoke
the
guardianship of the father, once such
authority was granted unconditionally by
the plaintiff and duly acted upon. However,
the court shall at all times, bear in mind
that the interests of the child and her
welfare are paramount, and ahead of all
other considerations.

19. While considering the best
interests of the child, the court shall
personally interact with the child, and also
take the services of a child psychologist.
However, at this stage, due to the COVID19 pandemic, it will not be advisable to
expose the child either to the environment
of the courts, or to any other external and
uncontrolled environment.

20. This issue shall only be decided
after the court comes to a considered
opinion, that the threat of COVID-19
pandemic have sufficiently receded, and the
child can be exposed to an interaction with
the court and the child psychologist, at a
convenient and well sanitized place. The
other aspects which the court may factor in,
are the will and preferences of the child,
386 INDIAN LAW REPORTS ALLAHABAD SERIES
educational facilities, the opportunities
available and the overall environment
which is conducive to overall development
of the child. The court may also consider
any other factors, which it deems are
relevant to determine the best interests of
the child.

21. During the pendency of the suit
proceedings, it is open to the respondent to
file an application for interim visitation
rights. In case such application is filed, it
shall be considered at the earliest and on
top priority by the learned trial court in
accordance with law.

22. It is open to both parties to raise
all issues on merits regarding the welfare of
the child, before the learned trial court, and
the same shall be considered by the learned
trial court in accordance with law, and
consistent with the observations made
above.

23. The petition is disposed of finally.
----------
(2020)09ILR A386
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.07.2020

BEFORE

THE HON'BLE GAUTAM CHOWDHARY, J.

Matters Under Article 227 No. 2230 of 2020
(Criminal)

Nitin Arora ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Madan Lal Rai

Counsel for the Opposite Parties:
G.A.
A. Criminal Law - Criminal Procedure Code,
1973 - Section 200, 202 - Indian Evidence
Act, 1872- Section 101 - Burden of Proof -
The petitioner asserts that the respondent
along with his daughter took jewelry and
left the matrimonial home to move to her
father's house. But the lower court observes
that the petitioner failed to disclose neither
in the complaint nor in his statement the
owner of those jewelry. Since the burden to
prove the description of jewelry therefore
he ought to have provided any list or receipt
of jewelry which kept missing from his
house. (Para 10)
B. Jurisdiction - the petitioner claims that
when he went to her father's house at Preet
Vihar, New Delhi he was ill-treated. The Hon'ble
High Court appreciates the order of the lower
court deciding not to intervene in the matter as
it lies under the jurisdiction of the Delhi court
and not Ghaziabad court. (Para 16)
Writ Petition Rejected. (E-10)

List of Cases cited: -

1. Vijay Dhanuka etc. Vs Najima Mamtaj etc.
(2014) 14 SCC 638

(Delivered by Hon'ble Gautam Chowdhary, J.)

1& Hkkjrh; lafo/kku ds vuqPNsn 227 ds
vUrxZr ;g ;kfpdk] ifjokn okn la0 5069 lu
2018] fufru vjksM+k olsZl lksfu;k eYgks=k ,.M
vnlZ esa vij eq[; U;kf;d eftLVzsV] dksVZ ua0 3]
xkft;kckn }kjk ikfjr rych vkns'k fn0
29&7&2019] ftlds }kjk ifjoknh }kjk izLrqr
ifjokn i;kZIr lk{; ds vHkko esa /kkjk 203
na0iz0la0 ds rgr fujLr fd;k x;k gS ,oa blds
fo:) nk;j fdzfeuy fjohtu ua0 325 lu 2019]
fufru vjksM+k olsZl lksfu;k eYgks=k ,.M vnlZ esa
vij ftyk ,oa l= U;k;k/kh'k] dksVZ ua0 17]
xkft;kckn }kjk ikfjr vkns'k fn0 30&11&2019]
ftlds }kjk fuxjkuh fujLr dh x;h gS] ds
fo:) ;ksftr dh x;h gSA

2& ;kph ds fo}ku vf/koDrk Jh enu
yky jk; ,oa m0 iz0 jkT; dh vksj ls fo}ku