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Allahabad High Court · body

2002 DIGILAW 1848 (ALL)

Amit Beri v. Sheetal Beri

2002-12-05

B.K.RATHI

body2002
( 1 ) AN application was moved by the appellants under Section 10 of Guardian and Wards Act read with the provisions of Hindu Minority and guardianship Act 1956 (hereinafter referred to as the Act) for the custody of the minor Master Vardan Beri who was admittedly borne on 18-6-1996. ( 2 ) AMIT Beri appellant is the father and hardaya Narain Berl, appellant No. 2 is grandfather of the minor and the respondent is his mother. The application for custody of the minor had been rejected by the additional District Judge, Bulandshahar by judgment and order dated 7-2-2002. Aggrieved by it the present appeal has been preferred. ( 3 ) I have heard Shri R. B. Singhal and shri B. K. Solanki, learned counsel for the appellants and shri Krishna Murari, learned counsel for the respondent and perused the judgments. ( 4 ) IT is admitted that the marriage between the appellant No. 1 and the respondent was a love marriage and the minor was borne on 18-6-1996 at Bulandshahar. Archana Sharma, elder sister of the respondent is living in Dubai and is a divorcee. The respondent went to meet her and stayed at her house for some period. Thereafter she came back. Later on she and her husband (appellant No. 1) went to Dubai and both of them joined service there. There were some differences and the appellant No. 1 returned back to Bulandshahar. The respondent is still in service at Dubai and is getting 5,000 dirhams per month as salary. The minor child Vardan Beri is also living with her. ( 5 ) THE argument that weighed in the decision of the Additional District Judge is that the appellant No. 1 is an un-employed youth and has no sufficient means to property maintain the child. That appellant No. 2 is the grandfather who has re-married and his second wife is the step mother of appellant No. 1. That therefore, she could not have much affection with appellant No. 1 and his child. That the respondent is in service and has sufficient means to properly maintain and brought up the child. Therefore, the application has been rejected. ( 6 ) IT has been argued by the learned consel for the appellants that family of the appellant is a richest family of thebulandshahar town. That they have large number of properties and can properly maintain the child. Therefore, the application has been rejected. ( 6 ) IT has been argued by the learned consel for the appellants that family of the appellant is a richest family of thebulandshahar town. That they have large number of properties and can properly maintain the child. The appellant No. 1 examined himself in Court and stated on oaththat he has one TV. shop and is earning about Rs. 35. 000/- to Rs. 40. 000/- per month. He further stated that he is in possession of the evidence regarding the shop and property but has not produced the same. No documentary evidence or the copy of the Income-tax return has been filed to show the status of the appellants and there is bald statement that the family of the appellants is the richest family of the Bulandshahar town. ( 7 ) IN the matter of appointment of guardian the paramount consideration is the welfare of the child and not rights of the parties according to law. This settled position of law has not been disputed by the learned counsel for the parties and therefore the question for decision is regarding the welfare of the child. ( 8 ) IT is admitted that the parents are Indian and the child was also borne in India. The mother has shifted to Dubai where she is in service and is living with her elder sister who had divorced her husband. The respondent has also filed the Suit for divorce against the appellant No. 1 on the ground of cruelty, demand of dowry etc. This is the background of the family of the respondent. ( 9 ) NO doubt, the respondent is earning sufficient money to maintain herself and her minor children but it alone is not sufficient to record finding regarding the welfare of the child. The allegation of the appellants is that she is a lady of bad character. The appellant Amit Beri in his statement in the Court has stated that the respondent used to attend night clubs and often used to return late in the night. He further stated that he used to lock himself inside the room whenever the respondent came late in the night from club so that he may avoid sexual relation with her. The appellant Amit Beri in his statement in the Court has stated that the respondent used to attend night clubs and often used to return late in the night. He further stated that he used to lock himself inside the room whenever the respondent came late in the night from club so that he may avoid sexual relation with her. He has also stated that in the day time minor used to stay in the day care home and in the nights as well the minor has to stay in the care home when the respondent used to go to attend the night clubs. As against this it has been argued by the learned counsel for the respondent that the character of the appellant is not good and he is having illicit relations with other ladies. That the respondent had never attended the night club and only used to attend parties etc. of the families or of the co-employees in the same concern in which she is working. However, in this connection it is material that she admitted in cross-examination that whenever she used to come late in the night from the parties her husband used to torture her and used to lock himself in the room to deprive her from the sexual relation. This statement clearly shows that the respondent used to attend such clubs and the appellant No. 1 had suspicion regarding her character and therefore forceably Used to keep him aloof from her. ( 10 ) THE Indian culture is entirely different. I have already stated regarding the family background of the respondent No. 1 and her sister. She is also in the habit in attending nightclubs and coming late to her house. During this period, the minor child has to be left in some care house for children. As the child will grow and attain the age of maturity, he is likely to come in contact with undesirable elements. Therefore, for proper brought up of the child and that he may became a good citizen and may have good character it is necessary that he may not be left with the respondent. ( 11 ) IN this connection it may also be pointed out that the appellant No. 2 is grandfather of the minor and he has also examined himself and stated that this minor is his only grandchild and he will properly look after him. ( 11 ) IN this connection it may also be pointed out that the appellant No. 2 is grandfather of the minor and he has also examined himself and stated that this minor is his only grandchild and he will properly look after him. ( 12 ) NO doubt, there is no reliable evidence on the record regarding the status and earnings of the family of the appellants, but it has been argued with great force that the family of the appellant is rich family of the bulandshahar town. If it is so. I think it proper to give the child in the custody of the appellants on their depositing Rs. 5 lacs in some Nationalised Bank in fixed deposit in the name of the minor. In case they are not able to deposit the amount within a period six months from today it will show that the claim that they are rich persons of the town is false and they have no proper means to maintain the child. ( 13 ) ACCORDINGLY, the appeal is allowed and it is ordered that the minor Master vardan Beri shall be given in the custody of the appellants provided they deposit of Rs. 5 lacs in fixed deposit in some Nationalised bank in the name of the minor within six months from today. If the amount is not deposited within six months, this appeal shall be deemed to have been dismissed. Appeal allowed. . .