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2006 DIGILAW 1383 (ALL)

AMIT BERI v. SHEETAL BERI

2006-05-17

B.A.ZAIDI

body2006
B. A. ZAIDI, J. ( 1 ) THERE is a tussle between the Father and the Mother with regard to custody of their son, which has been going on for the last 5 years. At the time of presentation of the application by the Father, and Fathers father under sections 10, 12, and 15 of The guardians and Wards Act, 1890 read with sections 6 and 13 of the Hindu Minority and guardianship Act, 1956 before the District judge, Bulandshahar, the boy was aged about 5 years but by the time, this appeal has come up for hearing, he is now over 10 years. ( 2 ) SECTION 6 of the Hindu Minority and guardianship Act, 1956 provides for the custody of a child who has not completed the age of 5 years of the Mother and thereafter to the father. The Additional District Judge, bulandshahar (Special Judge S. C. /s. T. Act)vide his order dated 7. 2. 2002 (In Case No. 9 of 2001) granted the custody of the child to the Mother. The father and fathers father appealed to the High Court, which reversed the judgment of the Trial Court vide order dated 5. 12. 2002 and gave custody of the child to the father and fathers father, subject to the condition of their depositing Rs. 5 lacs in a nationalized bank within 6 months. The mother went to the Supreme Court, which allowed the appeal, set aside the judgment of the High court and remanded back the case to the High court vide order dated 9. 10. 2003, observing that the High Court should have given its finding after allowing the appellant to controvert the allegations made in the petition before the appellate Court. ( 3 ) THAT is how the matter comes up for hearing before this Court. ( 4 ) IN spite of an opportunity being given, the appellant did not file any fresh documents in the form of rebuttal or otherwise. ( 5 ) I have heard Sri R. B. Singhal and Sri s. M. A. Abidi, learned Counsel for the appellants and Sri ravi Kiran Jain, Senior Advocate, assisted by Sri Sweteshwa Agrawal for the respondent. ( 6 ) THIS Court is, however, disinclined to agree with the earlier view of the High Court about the custody of the minor. ( 5 ) I have heard Sri R. B. Singhal and Sri s. M. A. Abidi, learned Counsel for the appellants and Sri ravi Kiran Jain, Senior Advocate, assisted by Sri Sweteshwa Agrawal for the respondent. ( 6 ) THIS Court is, however, disinclined to agree with the earlier view of the High Court about the custody of the minor. It is true that according to section 6 (a) of The Hindu Minority and Guardianship Act, 1956, the father is entitled to the custody of the Child because the boy is more than 5 years old but section 17 of The Guardians and Wards Act, 1890 says that the paramount consideration is the welfare of the minor. The Court has, therefore, to see as to what is best in the interest of the minor. The foremost consideration, is the welfare of the minor. ( 7 ) WHEN it comes to Mother v. Father for custody of the child, we should in normal circumstances lean towards the Mother. Mothers love is proverbial. Every religion, every culture, every civilization has acknowledged this. The love, affection and care, which is mother can bestow on her child, cannot be given by any one else, including the father. There may be cases where the father is comparatively more affectionate but they are exceptions to the general rule. The care and concern of the Mother for her child is unrivalled unless therefore, there are facts and circumstances, which indicate that the Mother will not be able to take care of the child, the custody, should normally go to the Mother. ( 8 ) WHAT we have, therefore, to see in this case whether there are any circumstances from which it appears that the mother will not be able to take proper care of the minor. ( 9 ) AN unfortunate aspect of this case is that the minor was not asked, where he wants to be, as provided in section 17 (3) of the guardians and Wards Act, 1890. A 10 years old boy is competent enough to give his preference and that preference is very valuable. It is distressing to find that the views of the minor in this case were not obtained. A 10 years old boy is competent enough to give his preference and that preference is very valuable. It is distressing to find that the views of the minor in this case were not obtained. The case has proceeded for quite a long time now and it will bring about further delay if efforts are made to bring the boy from Dubai and obtain his preference and it is also not certain whether he would be able to come or would like to come? ( 10 ) THE Counsel for the appellant has referred to the following cases on behalf of the appellants. (i) Rosy Jacob v. Jacob A. Chakramakkal; (ii) Smt. Surjnedra Kaur Sandhu v. Harbax Singh Sandhu and another, (iii) Panni Lal v. Rajinder Singh and another; and (iv) Jai Prakash Khadria v. Shyam sunder Agarwalla. ( 11 ) THE Counsel for the respondent has referred to the following cases on behalf of the respondent. (i) Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor; (ii) Rosy Jacob v. Jacob A. Chakramakkal; (iii) Smt. Kahkashan Bano v. A. M. Ansari; (iv) Mohd. Khalid v. Smt. Zeenat parueen and others; (v) Dr. Jayat Bajpai v. District Judge, kanpur and others; (vi) Mrs. Elizabeth Dinshawa v. Aruand M. Dinshawa and another; and (vii) Smt. Sunita Malik v. Dharam veer Singh Malik. ( 12 ) THE question about the custody of the minor is a question of fact, to be determined on the basis of the circumstances of each case. The facts and circumstances of every case are different and the question of any case law about the same is, therefore, not relevant. A case law is an authority on a point of law, which it decides, and not for any fact, which has been decided because facts of every case will vary. The Supreme Court has discountenanced such citations and has given guidelines relating to interpretation of the judgments of the Supreme court. In the case of Additional District Magistrate, jabalpur v. Shivkant Shukla. This is what the Supreme Court said. "these observations would undoubtedly be entitled to great weight, but as pointed out by this Court in his Highness Maharajadhiraj Jiwaji Rao scindhiya v. Union of India, "an obiter cannot take the place of Ration, judges are not oracles. These observations do not, therefore, have any binding effect and they cannot be regarded as conclusive on the point. "these observations would undoubtedly be entitled to great weight, but as pointed out by this Court in his Highness Maharajadhiraj Jiwaji Rao scindhiya v. Union of India, "an obiter cannot take the place of Ration, judges are not oracles. These observations do not, therefore, have any binding effect and they cannot be regarded as conclusive on the point. Moreover, it must be remembered, that when we are considering the observations of a High judicial Authority, like this Court, the greatest care must be taken to relate the observations of a judge to the precise issues before him. and to confine such observations, even though, expressed in broad terms in the general compass of the question before him, unless he makes it clear, that he intended his principles to have a wider ambit. It is not possible for judges, always to express their judgments so as to exclude entirely, the risk that in subsequent cases, their language may be misapplied, and any attempt to such perfection of expression, can only lead to opposite result of uncertainty, and even of security, as regards the case in hand. " ( 13 ) IN the case of State of Orissa v. Sudarshan Sheikhar Misra, it was observed by the Supreme Court that a decision is only an authority for what it actually decides and what is the essence of the decision is the Ratio, and not every stray observations found therein, nor, what may logically follow from various observations made therein. ( 14 ) IN the case of Rajendra v. State of u. P. it was observed by the Supreme Court that :-"judgments are not Bible for every line to be Venerated. "there is no point of law involved here and the only question involved is whether the welfare of the minor lies being with the mother or the father and the fathers father, which is purely a question of fact. ( 15 ) ON the record, there are only statements, of the Mother, Father and Fathers father, It appears from the facts as they emerge from these statements that the mother is a working lady in Dubai and the child has to be kept sometime in a Care Home, that does not indicate that the mother will not be able to take care of the minor. It is not unusual for a working mother to utilise the services of the care Home, that alone, therefore, is not a sufficient circumstance to indicate that the mother will not be able to take care of the minor. There is nothing on record from which it may be concluded that the mother is likely to ignore the up-bringing of the minor. The Child has been with the mother now for about 10 years and if his custody is transferred to the father and the fathers father, he will find himself in new surroundings, which may not be very congenial for him. ( 16 ) ONE of the argument from the side of the father and fathers father is that they are possessed of immense wealth. In the first place it may be stated in this regard that the trial Court has clearly indicated in its judgment that the father is just the owner of a TV shop, the rent whereof will be Rs. 1,200/-, secondly even if the father and fathers father are extremely affluent that will not entitle them to the custody of the minor on this ground because money is no substitute for affection. A poor man who has greater care and concern for his offsprings, is in a better position to look after his minor son than a wealthy father, who remains busy in earning money and ignores the minor. ( 17 ) ONE of the arguments from the side of the father and fathers father is that the mother goes to night clubs in Dubai, which disentitles her to become the guardian of a minor. The mother had denied the same and has said that sometimes she goes to the par-ties of her company where she is an employee and does not go to night dubs. It is word against word and, therefore not proved. ( 18 ) THERE is consequently nothing on record from which it may legitimately be inferred that the mother will not be able to take proper care of the Child. ( 19 ) IN view of the aforesaid reasons, the custody of the minor shall remain with the mother. The appeal dismissed accordingly. Appeal dismissed. .