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Rajasthan High Court · body

2001 DIGILAW 1476 (RAJ)

Satya Narayan v. Bihari Lal

2001-09-14

SUNIL KUMAR GARG

body2001
Honble GARG, J.–This revision petition has been filed by the petitioners, who are Mausa and Mausi of the minor children for which there is a dispute over their custody, against the order dated 27.4.2001 passed by the learned Addl. District Magistrate, Deedwana District Nagaur by which he accepted the application filed by respondent No.1 Biharlal (grand-father of the minor children) under Section 97 Cr.P.C. and ordered that keeping the custody of Priya and Rakshita with the petitioners is against the law and, therefore, custody of these two minor children be handed over to their grand-father Biharilal (respondent No.1) as per the wishes of their father. (2). It arises in the following circumstances :- There is a dispute over the custody of two minor daughters, namely, Priya and Rakshita and they are daughters of one Mahesh Kumar, who is in jail in connection with murder of his wife, meaning thereby the case of the prosecution is that Mahesh Kumar murdered his wife (mother of the minor children) and after that murder, these minor children are living with the present petitioners, who are their Mausa and Mausi. Thereafter, an application was moved by the respondent No.1 Biharilal (grand-father of the minor children) in the Court of Addl. District Magistrate, Deedwana Distt. Nagaur under section 97 Cr.P.C. and on that application, the learned Magistrate made preliminary enquiry and also recorded the statement of Priya on 23.4.2001. She has stated before the learned Magistrate that her age was about 12 years and she has clearly stated that her father has murdered her mother with Musli and, therefore, she did not want to live with her grand-father and she wants to live with her Mausa and Mausi, present petitioners. The learned Additional District Magistrate, Deedwana vide order dated 27.4.2001 accepted the application filed by the respondent No.1 Biharilal under Section 97 Cr.P.C. and ordered that custody of the minor children be given to the respondent No.1 Biharilal holding inter-alia :- (1) That keeping the custody of the minor children with their Mausa and Mausi (present accused petitioner) would not be in the interest of these minor children and furthermore, they are not the legal guardians. (2) That when grand-father and grand-mother of the minor children are alive, their custody should not be given to Mausa and Mausi. (2) That when grand-father and grand-mother of the minor children are alive, their custody should not be given to Mausa and Mausi. (3) That father of these minor children had sent a letter from jail that custody of these minor children be handed over to their grand-father and grand-mother. Aggrieved from the said order dated 27.4.2001 passed by the learned Addl. District Magistrate, Deedwana, this revision petition has been filed by the petitioners. (3). In this revision petition, it has been argued by the learned counsel appearing for the petitioners that the impugned order dated 27.4.2001 passed by the learned Addl. District Magistrate, Deedwana is without jurisdiction and it should be set aside and when there is statement of Priya to the effect that she and her sister did not want to live with the respondent No.1 Biharilal, who is their grand-father, their custody with the present petitioners should be protected. (4). On the other hand, the learned counsel appearing for the respondent and the learned Public Prosecutor supported the impugned order passed by the learned ADM, Deedwana. (5). I have heard the learned counsel for the petitioners, learned counsel for the respondent and the learned Public Prosecutor and gone through the impugned order. (6). Before proceeding further, it may be stated here that at present both minor children are living with the present petitioners. (7). There is no dispute on the point that mother of these minor children has been murdered and charge of murder is against their father, who is in jail and custody of these minor children is being claimed by their grand-father Biharilal, respondent No.1. (8). Before proceeding further, legal aspect in respect of guardian and custody of minor children has to be discussed here. (9). The term ``Guardian has been defined in sub-section (2) of Section 4 of the Guardians and Wards Act, 1890 (hereinafter referred to as `the Act of 189) and `Guardian means a person having the care of the person of a minor or of his property, or of both his person and property. (10). According to Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as `the Act of 1956), the natural guardians of Hindu minor include a natural guardian, testamentary guardian and certificated guardian. (11). Thus, according to law, father is natural guardian and next to him is mother. (12). (10). According to Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as `the Act of 1956), the natural guardians of Hindu minor include a natural guardian, testamentary guardian and certificated guardian. (11). Thus, according to law, father is natural guardian and next to him is mother. (12). In the present case, father of the minor children is in jail and their mother has been murdered and, therefore, neither the present petitioners nor the grand-father respondent No.1 Biharilal can be called natural guardians. This is one of the aspects of the matter. (13). In my considered opinion, ``de facto guardian too would fall under the definition of ``Guardian provided in sub-section 2 of Section 4 of the Act of 1890 as the words are ``a person having the care of, and if a de facto guardian has the care of the person or property of the minor he should be included so that the court could exercise control over him in the welfare of the child. Thus, sub-section (2) of Section 4 of the Act of 1890 is wide enough to include all kinds of guardians except where the term has been used in reference to a particular type of guardian. (14). In Md. Shafi vs. Shamim Banoo (1), it was held by the Bombay High Court that a person who is having the care of a child for the time being could apply for custody even though he was not a legal guardian. (15). Sub-section (5) of Section 17 of the Act of 1890 says that the Court shall not appoint or declare any person to be a guardian against him will. (16). It is now a well established principle in almost all countries of the world that in matters of appointment of guardian and committing of custody of minor children, their wishes should be taken into consideration if they have attained the age of discretion, though it is equally well established principle that in their welfare the wishes of the children may be disregarded. (17). The English courts have consistently taken the view that wishes of a male child of fourteen years and a female child of sixteen are to be given effect to. In India, there is a specific provision in this regard. (17). The English courts have consistently taken the view that wishes of a male child of fourteen years and a female child of sixteen are to be given effect to. In India, there is a specific provision in this regard. Section 17(3) of the Act of 1890 provides that if the minor is old enough to form an intelligent preference, the court may consider that preference. (18). The proposition is now firmly established that even the preferential right of the father as a natural guardian should be subordinated to and even overridden by the sole consideration that the welfare of the minor is to be determinative factor in all these matters of guardianship, meaning thereby sole criteria for appointment of guardians of minors and keeping their custody is the wishes of the minors and they are paramount consideration of their welfare. For that the decision of the Honble Supreme Court in Mohini vs. Virendra Kumar (2), may be referred to. (19). In the present case, the learned Addl. District Magistrate, Deedwana vide his impugned order dated 27.4.2001 allowed the application filed by the respondent No.1 under Section 97 Cr.P.C. (20). It may be stated here that court before issuing a search warrant under Section 97 Cr.P.C. must have reason to believe that the person has been confined and that the confinement amounts to an offence. (21). In this case, there is statement of Priya, who is minor girl of about 12 years, meaning thereby she has attained the age of discretion and she has clearly stated that she wants to live with the present petitioners, who are her Mausa and Mausi and therefore, if minor children are living with the present petitioners, who are their Mausa and Mausi, it cannot be said that they are being confined illegally and that the confinement amounts to an offence. Since the present petitioners are de facto guardians, therefore, custody of the minor children with them does not make out any offence. In these circumstances, the provisions of Section 97 Cr.P.C. are not applicable in the present case and when this being the position, the impugned order cannot be sustained and liable to be set aside. (22). Since both the minor children are living with the present petitioners, therefore, their custody with them should not be disturbed till the matter is decided by the appropriate court of competent jurisdiction. (22). Since both the minor children are living with the present petitioners, therefore, their custody with them should not be disturbed till the matter is decided by the appropriate court of competent jurisdiction. For the reasons stated above, this revision petition filed by the petitioners is allowed and the impugned order dated 27.4.2001 passed by the learned Addl. District Magistrate, Deedwana is set aside and it is ordered that both the minor children shall remain in the custody of the present petitioners till the matter of their custody is decided by the appropriate court of competent jurisdiction.