Research › Search › Judgment

Rajasthan High Court · body

2001 DIGILAW 1189 (RAJ)

Vageesh Chandra Sharma : Rajeev Joshi v. Rajeev Joshi : Vageesh Chandra Sharma

2001-08-01

KHEM CHAND SHARMA, SHIV KUMAR SHARMA

body2001
JUDGMENT 1. - Appellant Vageesh Chandra Sharma is a maternal grand-father of Master Vaibhav and Kumari Ritvi. A petition under the provisions of Guardians and Wards Act, 1890 came to be filed by the appellant Vageesh Chandra Sharma in the Family Court, Jaipur with the prayer that in view of the welfare of Master Vaibhav and Kumari Ritvi their legal custody may be given to the appellant. 2. It was averred in the petition that respondent Rajeev Joshi married to Smt. Manisha (since died). The respondent used to torture her and act of torture went to the extent that on 08th of October, 1991 he ablazed fire on her and Mrs. Manisha got 99% burnt and on account of the said incidence she died on 9th of October, 1991. Thereafter, a criminal case came to be registered at Police Station, Amba Mata, Udaipur. 3. It was further pleaded in the petition that Mrs. Manisha gave birth to Master Vaibhav and Kumari Ritvi. Master Vaibhav has been residing with the respondent Rajeev Joshi, whereas, Kumari Ritvi is living with the appellant Vageesh Chandra Sharma. In view of this fact that the appellant claimed the custody of Master Vaibhav and requested the Family Court, Jaipur to grant him legal custody of Kumari Ritvi also. Respondent Rajeev Joshi submitted reply claiming the custody of Kumari Ritvi. 4. On the basis of the pleadings of the parties as many as four issues were framed, which have been incorporated in the judgment of the Family Court. Appellant Vageesh Chandra Sharma examined himself, whereas, respondent Rajeev Joshi in addition to statement has produced Tej Singh and Rajendra Bhatt. The Family Court vide its judgment dated 5th of January, 1994 observed that the appellant Vageesh Chandra Sharma is best entitled person for claiming the custody of both the children, but returned the petition back to Vageesh Chandra on the ground that the Family Court had no jurisdiction to decide it. Against this judgment appellant Vageesh Chandra Sharma preferred D.B. Civil Misc. Appeal No. 133/1994, whereas Rajeev Joshi also filed D.B. Civil Misc. Appeal No. 607/1994. 5. We have heard both these appeals analogously. The children namely; Master Vaibhav and Kumari Ritvi are present in person in the Court. Appellant Vageesh Chandra Sharma and respondent Rajeev Joshi are also present in person in the Court. Appeal No. 133/1994, whereas Rajeev Joshi also filed D.B. Civil Misc. Appeal No. 607/1994. 5. We have heard both these appeals analogously. The children namely; Master Vaibhav and Kumari Ritvi are present in person in the Court. Appellant Vageesh Chandra Sharma and respondent Rajeev Joshi are also present in person in the Court. Shri Ajay Rastogi, learned counsel appearing for the appellant Vageesh Chandra Sharma contended that looking to the behaviour of Rajeev Joshi with his wife late Mrs. Manisha and his tortures act, the custody of both the children should be given to Vageesh Chandra, who is a maternal grand-father of the children and he can very well look-after their welfare. It is also contended that the Family Court had Jurisdiction to hear the case, but the Family Court has not properly considered this issue. 6. Reliance has been placed on the case of (1) Kirti Kumar Maheshankar Joshi v. Pradip Kumar Karunashankar AIR 1992 Supreme Court 1447 and in the case of (2) Smt. Vimla Devi v. Smt. Maya Devi (1981 R.L.W. 4) : Per contra Mr. G.S. Bapna learned counsel appearing for the respondent Rajeev Joshi canvassed that no doubt a criminal case came to be registered against Rajeev Joshi, but the Court acquitted him from all the charges on the ground that (sic......?) the custody of children cannot be denied to Rajeev Joshi. 7. Reliance has also been placed on the case of (3) Harihar Pershad Jaiswal v. Suresh Jaiswal and Others AIR 1978 Andhra Pradesh 13 , (4) Dr. (Smt.) Snehlata Mathur v. Mahendra Narain AIR 1980 Rajasthan 64 and in the case of (5) Amrik Rai v. Sat Pal Sood and Another AIR 1983 Punjab and Haryana 301 . 8. We have given our anxious consideration to the rival submissions and carefully scanned the material placed on record. We asked to Master Vaibhav about his wish. He expressed his intention to live with his father Rajeev Joshi. The child Kumari Ritvi has categorically stated before us that she is not willing to live with her father. She further stated that she is very well living with her maternal grand-father Vageesh Chandra Sharma who is looking after her very well. 9. We first proceed to decide the issue of jurisdiction. The child Kumari Ritvi has categorically stated before us that she is not willing to live with her father. She further stated that she is very well living with her maternal grand-father Vageesh Chandra Sharma who is looking after her very well. 9. We first proceed to decide the issue of jurisdiction. In the impugned judgment the Family Court observed that it had no jurisdiction to decide the petition moved by Vageesh Chandra Sharma under Section 9 of the Guardians and Wards Act, 1890, which provides that if, the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. 10. In the facts and circumstances of the present case, appellant Vageesh Chandra Sharma claimed the custody of Kumari Ritvi, who at the time of filing of the petition was residing at Jaipur and in our opinion, she was ordinarily residing in the jurisdiction of the Family Court. Thus, in view of sub-section (1) of Section 9 of the Guardians and Wards Act, 1890 the Family Court has committed illegality in deciding the issue of jurisdiction and we set-aside the said finding and hold that the Family Court, Jaipur had jurisdiction to entertain the petition. 11. It is well settled that while considering the question of 'welfare of the minors', the right of the father as recognised by law has to be kept in mind and given its due weight, but the primary and paramount consideration undoubtedly remains to be the welfare of the minors. The Punjab and Haryana High Court in the case of Amrik Rai v. Sat Pal Sood (supra) indicated that the expression 'welfare of the minors' though has not been defined, yet undoubtedly has to be given a very wide meaning. It ought not to be measured in money only or by physical comfort alone. It has many facts, such as, financial, educational, physical, moral and religious welfare.In fact it includes every circumstance that a wise parent must or ought to consider for the well being of the minors. Due regard must also be had to the ties of affection and the capacity for building up a good career for the infant. 12. It has many facts, such as, financial, educational, physical, moral and religious welfare.In fact it includes every circumstance that a wise parent must or ought to consider for the well being of the minors. Due regard must also be had to the ties of affection and the capacity for building up a good career for the infant. 12. After talking to the children, and assessing their state of mind, we are of the view that it would not be in the interest and welfare of both the children to disturb presently their place of abode. Their lordships of the Supreme Court in the case of Kirti Kumar Maheshankar Joshi v. Pradip Kumar Karunashankar Joshi (supra) in the similar situation did not incline to disturb the custody of child. Looking to the wishes of the children, who according to us are intelligent enough to understand their well-being. We are inclined to dispose of both these appeals by issuing the following directions: (i) The custody of child Master Vaibhav shall remain with Rajeev Joshi. Respondent Rajeev Joshi will allow Master Vaibhav to meet Kumari Ritvi as and when she will require. (ii) Respondent Rajeev Joshi the father of Kumari Ritvi shall be permitted by Vageesh Chandra Sharma to meet Ritvi on holidays or on any other day with prior notice to Vageesh Chandra Sharma in the house of Dr. K.C. Joshi who is presently residing opposite side of S.M.S. Hospital, Jaipur. Master Vaibhav shall also be allowed to meet Ritvi alongwith his father. (iii)If in due course Rajeev Joshi wins over the love and affection of the children, he would be at liberty to move this Court for the modification of the order regarding custody of the children. (iv) We accordingly modify the impugned judgment of the learned Family Court. We also give liberty to Vageesh Chandra Sharma for modification of this order or for seeking any directions regarding the custody and the well-being of Master Vaibhav and Kumar Ritvi, if there is change in the circumstances or for the welfare of the children. We, therefore, dispose of both the appeals with the above directions. There will be no order as to costs.Appeal Disposed Of with direction. *******