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2005 DIGILAW 712 (RAJ)

Dharmendra Puri v. Ramesh Bharati Goswami

2005-03-02

GOVIND MATHUR

body2005
Judgment Govind Mathur, J.- By the instant petition a challenge is given to the order dated 110.2004 passed by District Judge, Bhilwara rejecting the application under Section 12 of the Guardians and Wards Act, 1890 (hereinafter referred to as “the Act of 1890”). 2. The facts relevant to be noted are that the petitioner preferred an application under Section 9 of the Act of 1890 to claim custody of her minor daughter Kumari Komal who is presently living with her maternal grand parents at Udaipur. Kumari Komal born on 7.2000 when her mother late Smt. Krishna was at Udaipur with her parents. Smt. Krishna and present petitioner were not keeping good relations and they were living separately. Unfortunately Smt. Krishna died on 1.2004 when Kumari Komal was of only 3 ½ years of age. The petitioner preferred the application under Section 9 of the Act of 1890 on various grounds including that being natural guardian of minor daughter he is entitled for custody of Kumari Komal. During pendency of application under Section 9 of the Act of 1890 the petitioner also preferred an application under Section 12 of the said Act seeking an interlocutory order for interim custody of minor kumari Komal. The application preferred by the petitioner under Section 12 of the Act of 1890 was rejected by learned District Judge, Bhilwara by order dated 110.2004, hence this writ petition is filed by the petitioner challenging the order referred above. 3. Learned District Judge, Bhilwara after considering all relevant facts held that the interest and welfare of Kumari Komal are sufficiently secured under the custody and protection of her maternal grand parents. Learned District Judge while considering the application under Section 12 of the Act of 1890 also observed that Kumari Komal is of tender age and her welfare interest and future life will be adversely effected if her custody is changed at this stage. 4. Learned District Judge while considering the application under Section 12 of the Act of 1890 also observed that Kumari Komal is of tender age and her welfare interest and future life will be adversely effected if her custody is changed at this stage. 4. The challenge to the order passed by learned District Judge is given by the petitioner mainly on two counts, viz.; (1) that the petitioner being father of Kumari Komal, a minor girl, is his natural guardian and more particularly when minor’s mother is not alive, the custody must be remained with her father i.e. the petitioner, and (2) that the learned District Judge, Bhilwara failed to consider the welfare and interest of minor Kumari Komal while considering the application under Section 12 of the Act of 1890. .5. I have heard Counsel for the petitioner and examined the order impugned dated 110.1994. 6. Learned District Judge considered the application keeping in mind that the Welfare, interest and future life of a minor girl of tender age are the factors of prime consideration while considering an application under Section 12 of the Act of 1890. The Court below considered all the facts to reach at the conclusion that presently welfare, interest and future of Kumari Komal shall be more secured under the custody of her grand maternal parents, therefore, it is wrong to say that the learned District Judge failed to consider the welfare and interest of minor while deciding the application under Section 12 of the Act of 1890. .7. I do not find any force in the contention of the petitioner that being father of Kumari Komal he is her natural guardian, therefore, he is entitled for her custody. Father may have a legal right of legal custody of the child but controlling consideration governing custody of a minor is welfare and not statutory rights of the father. Where the child is of tender age and living with her maternal grand parents from the date of her birth, the change of her custody at this stage may mentally shake her. In my considered opinion the right claimed by the petitioner cannot prevail over welfare of the child which certainly appears to be more secured at this stage under the custody of her maternal grand parents. .8. In my considered opinion the right claimed by the petitioner cannot prevail over welfare of the child which certainly appears to be more secured at this stage under the custody of her maternal grand parents. .8. In view of it, I do not find any merit in the writ petition and the same is hereby dismissed. 9. At this stage, a request is made by the Counsel for the petitioner that observations made by learned District Judge and by this Court may effect the adjudication of the application under Section 9 of the Act of 1890, so a direction be given that whatever stated under the order impugned and in this order shall not be taken into consideration while deciding the application under Section 9 of the Act of 1890. 10. It is well settled that the question of custody even after adjudication under Section 9 of the Act of 1890 remains interlocutory. It depends upon the facts existing at the time of claim for consideration. In view of it I do not think any direction as prayed by the petitioner is required to be given. 11. No order as to costs.