1. These two appeals are being disposed of by this common judgment since they arise out of the same award.
2. Sh.S.K.Sood, learned counsel for the respondent submits that despite repeated requests, his client has not contacted him. This Court had twice passed orders directing the respondent-frather to appear in person but he has not appeared. Therefore, it appears that he is not interested in the custody of the minor.
3. This case revolves around the custody of the minor, Raman Kumar. Gurpal Singh, respondent was married to Smt.Tara Devi, daughter of Amar Nath, appellant. Out of this wedlock, one son named Raman Kumar was born on 5.12.1998. Thereafter, Smt.Tara Devi had gone to her parental house as she was to deliver another child. Unfortunately, she expired on 2.3.2001. The parents of Smt.Tara Devi had deposited a sum of Rs.12,562/- in Saving Bank Account No.1411 in Punjab and National Bank, Panjwar in the name of their daughter Smt.Tara Devi. It appears that to operate the said account, Amar Nath, grand father of Raman Kumar filed a petition under Section 7 of the Guardian and Wards Act read with Section 13 of the Hindu Minority and Guardianship Act for being appointed as Guardian of the minor. This petition was instituted on 18.5.2001. Gurpal Singh, father of the minor also instituted a petition for custody of the minor under the provisions of the said Act. Both the petitions were consolidated. The learned Trial Court held that Gurpal Singh father is entitled to take the custody of the minor child and it was accordingly ordered that the custody of the minor be handed over to Gurpal Singh.
4. Two petitions being FAO No.22 and 23 of 2005 have been filed against the common judgment passed in the said petitions.
5. In cases like the present one, it is a settled law that the paramount consideration in the mind of the Court should be welfare of the minor. The learned Trial Court has ordered that the custody of the minor should be handed over to his father. He is a child and not an inanimate object. Even a tree of seven years cannot be uprooted from one place and planted at another. The child cannot immediately be handed over to the father even if it is held that the father is entitled to the custody of the child.
6. During the course of this case, this Court on a number of occasions had passed interim directions and a detailed order was passed on 28.6.2005, relevant portion of which reads as follows:-
“It is accordingly ordered that the father may visit the minor in the house of the appellant Amar Nath on 10th July, 24th July, 7th August and 21st August, 2005. The appellant can visit the minor from 10 a.m till about 6 p.m. on the aforesaid dates. He can take along with him one female relative, i.e, either his mother or his sister. Obviously, if the minor has to be given food etc. during this period, his maternal grand father, maternal grand mother and the maternal uncle can also look after him during this time. It is, however, made clear that the appellant Amar Nath and his family members shall cooperate with the father and he should be permitted to be with the minor during this period. The father can also take the minor around the house in the first two visits on 10th and 24th July, 2005. On 7th and 21st August, 2005 the father may take the child to the house of his sister(s) which is stated to be about 2-3 Kms. from the house of the appellant. He shall, however, ensure that the child is brought back to the house of the appellant before 6 p.m. When the father takes the child to the house of his sister(s) then either the appellant or one of his family members will be permitted to accompany the child.”
7. Thereafter, the child did go with the father on some occasions and this arrangement was continued. The matter was thereafter listed on 2.11.2005 for presence of the parties but the father of the minor did not appear on the said date. The interim orders continued but despite repeated orders directing the parties to remain present in the Court, even when the grandfather of the minor, i.e., appellant appeared, the fatherrespondent did not appear before the Court.
8. Sh.Sood has stated before me that he has tried to contract the respondent on a number of occasions but the respondent-father has not contacted him. In fact, on 20.7.2010, pursuant to the orders of this Court, the minor was produced by the appellant before Hon’ble Mr.Justice V.K.Ahuja, J. but the father did not appear on that date also and it is recorded in the order of the Court that the minor child told the Hon’ble Judge that his father had not visited him for the last four to five years. Thereafter, another date was given to the father-respondent to appear but he did not appear. It is thus obvious that father is no longer interested in the custody of the child.
9. The child is not an inanimate object. No doubt, the learned Trial Court directed that the custody of the child be given to his natural guardian who is the father but the learned Trial Court lost sight of the fact that the child had been living with his maternal grandfather for the about last seven years. Therefore, this Court had passed the interim orders whereby though the child was to remain with the grandfather-appellant, the father was given visitation rights to visit the minor. This was done only with a view to ensure that the son and father bond together and in case they had bonded in an affectionate manner then this Court could have considered granting custody of the minor to his natural guardian, i.e., father. Unfortunately, this attempt of the Court has failed. Though visitation rights were given to the father, it is found that he has not availed the same and he has not cared to visit his son for the almost 4 to 5 years. In these circumstances, the custody of the father cannot be handed over to the father.
10. Therefore, the present appeals are allowed and it is directed that the custody of the minor child shall remain with the appellant, grandfather Sh.Amar Nath who shall be treated to be the legal guardian of minor Raman Kumar for all intents and purposes including the operation of the bank accounts in question. Normally, I would have passed an order granting visitation rights to the father but since the father has not cared to appear in Court nor met the child, no such order is being passed but liberty is reserved to the father to approach this Court for grant of visitation rights.
11. Both the appeals are disposed of in the aforesaid terms. No order as to costs.