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2001 DIGILAW 943 (MP)

Jaichandra Jaina v. Asha Bahan

2001-12-12

S.B.SAKRIKAR

body2001
ORDER 1. The appellant-father of the minor Navin @ Kamal, aged about 7 years has directed this appeal against the order dated 5.7.l997 passed by Additional District Judge Khachhrod, District Ujjain in Misc. Civil Case No. 57/1996 thereby, rejecting his application filed under sections 7, 8, 9 and 10 of the Guardians and Wards Act of 1890, for appointing him as Guardian of the minor and his custody from the respondents. 2. The un-disputed facts are that minor Navin @ Kamal aged about 7 years is son of the petitioner. His mother died during the delivery of the said Navin and since then he was brought-up by the non-applicant No. 1 and 2 and living in their custody. It is also not disputed that respondent No. 1 Asha Bahan is the maternal aunt of the minor and respondent No.2 is the husband of respondent No.1 It is not in dispute that since birth minor Navin did not live for a single day alongwith the appellant his father. 3. On perusal of the record, it emerged that on 1.8.1996 the appellant filed an application before the trial Court un del sections 7, 8, 9 and 10 of the Guardians and Wards Act 1890, on the ground that minor Navin is his son, and being father of the child, he is the natural Guardian. The welfare of the minor is with the appellant and the non-appellants are not looking after the minor satisfactorily, as such, he prayed for appointment of guardian of the minor and also for grant of custody of his minor son in his favour. The application was resisted on behalf of the respondents Both the parties adduced evidence and or appreciation of the evidence, learned trial Court recorded a finding in favour of the non-applicants since his birth and they an properly looking after the minor Navin. As such, the welfare of the child is established in living in the custody of the respondents and dismissed the application. Aggrieved by the said order of the trial Court, the appellant has filed this appeal. 4. I have heard Shri A.S. Garg, learned counsel for the appellant and Shri R.C Chhazed, learned counsel appearing for the respondents. 5. As such, the welfare of the child is established in living in the custody of the respondents and dismissed the application. Aggrieved by the said order of the trial Court, the appellant has filed this appeal. 4. I have heard Shri A.S. Garg, learned counsel for the appellant and Shri R.C Chhazed, learned counsel appearing for the respondents. 5. The only contention of the learned counsel for the appellant is that the appellant is father of the minor Navin and in view of the welfare of the minor child he is the proper guardian of the minor and entitled for his custody. The trial Court without properly appreciating the evidence on record had committed an error in dismissing the appellant's application. As against, this, the learned counsel for the respondents submitted that it is true that minor Navin is the son of the appellant, but on the death of his mother he is brought-up by the respondents and living in their custody. The trial Court on appreciation of the evidence recorded a finding on the point that at this stage, the welfare of the minor child in living alongwith respondents is made out. As such, the impugned order of the trial Court requires no interference in this appeal. 6. Considering the submissions of the learned counsel and on perusal of the order-sheets dated 11.2.1998 as also dated 3.5.1999, it emerged that during the pendency of this appeal minor child Navin was produced before the Court to know whether he is willing to live with the appellant or continue to live with the respondents. The Court order dated 11.2.1998 is very exhaustive and indicate that on that date minor Navin was not ready even to have talks with his father, the appellant, and always sticking to respondent No.1. It is also mentioned in the said order that when the attempts were made to take minor Navin out of the arms of the Asha Behan, he started weeping and did not leave his hands which were closely fastened to the body of Smt. Asha Behan 7. In view of the aforesaid facts stated in the order-sheets, it is very clear that minor Navin has a great affection for the respondent No. 1 and does not want to leave her at any cost. In view of the aforesaid facts stated in the order-sheets, it is very clear that minor Navin has a great affection for the respondent No. 1 and does not want to leave her at any cost. Order sheet dated 3.5.1999 again indicates that on enquiry by the Court, the minor child declined to go with the appellant-father. As such, in view of the facts stated in the two order-sheets it will not be proper to separate the child from the respondent No.1 and deliver his custody to the appellant who happens to be the father of the minor Navin. 8. On perusal of the evidence adduced on behalf of the parties before the trial Court, it is also established that the respondents are properly looking after the minor Navin and they are always cautious for his welfare. In the present case minor Navin aged about 7 years frankly states before the Court that since his birth he has been brought-up in the family of his matneral aunt and feeling comfortable and has great affection with the respondents and does not feel attracted towards appellant his father. 9. In the matters relating the appointment of guardian very wide discretion and powers rest with the Court The discretion is always exercised in the interest of the minor child and for the welfare of the child it has got the discretion of appointing a guardian in preference of his father. The law is well settled on the point that if the trial Court has properly exercised the discretion, in view of the well-fare of the minor, the High Court should not interfere with the orders passed by the trial Court which are fairly within the bounds of their discretion. 10. In view of the facts and circumstances of the case on hand and the law applicable, I do not find any scope of interference in the impugned order of the trial Court dismissing the application filed on behalf of the appellant under sections 7, 8, 9 and 10 of the Guardians and Wards Act, 1890. The impugned order of the trial Court is well founded and based on proper appreciation of the evidence available on record. 11. Consequently, the appeal filed or behalf of the appellant fails and it is accordingly dismissed upholding the impugned order of the trial Court dated 5.7.1997. The parties are left to bear their own costs. The impugned order of the trial Court is well founded and based on proper appreciation of the evidence available on record. 11. Consequently, the appeal filed or behalf of the appellant fails and it is accordingly dismissed upholding the impugned order of the trial Court dated 5.7.1997. The parties are left to bear their own costs. A schedule of cost be drawn-up