The Hon’ble High Court of Punjab and Haryana vide order dated 9th September 2020, held 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” wherein 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 said order was passed while 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 Civil Procedure Code, 1908 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, was dismissed.
Both the mother and the father were Advocates by profession. Allegation on the part of the father was that after joining the profession, the mother not only started mistreating but also did not care for the child.
It was submitted that due to a quarrel between them, Respondent No.1, i.e. the mother abandoned the child and left the matrimonial home and even during the period when the Respondents were residing together, the Petitioners, i.e. the grandparents of the minor child, took care of the said minor as both the Respondents remained busy with their practice.
Justice Augustine George Masih after hearing the facts of the present matter 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 was a misconceived perception, which would mean that lady lawyers cannot be good mothers and are unable to look after the welfare of the child, and that 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.
The Court noted that the application for impleadment was made by the Petitioners in an attempt to delay proceedings and only when the mother filed a habeas corpus petition in the High Court for the custody of her child.
Opining that the grandparents did not have a right to be impleaded to the proceedings, the High Court stated that the impleading Court has the competence to examine the intent and purpose with which the application was moved.
The Judge also reiterated that the primary consideration before any Court in deciding which parent was to have custody of the child would be the child’s welfare.
Such welfare could not be decided by money or physical comfort alone, Justice Masih emphasized, further stating as follows, “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“.
It was further held that because the intent and purpose of the statute is to give primacy to the welfare of the child, the same would have to be considered, and that the parent who would best foster the same was to be allowed the custody of the child.
While agreeing that there is no doubt that as per the provisions of Order 1 Rule 10 of the Civil Procedure Code 1908, 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 is 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.