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2007 DIGILAW 589 (UTT)

Raju Verma v. Family Court

2007-12-06

PRAFULLA C.PANT

body2007
ORDER Prafulla C. Pant, J. 1. Heard learned Counsel for the petitioner and learned Counsel for respondent No. 2. 2. By means of this writ petition, the petitioner has sought writ in the nature of certiorari quashing the order dated 4-12-2007, passed by Principal Judge, Family Court, Dehradun, in Guardians and Wards Case No. 38 of 2007, Smt. Neelam Verma v. Shri Raju Verma. 3. Brief facts of the case are that the petitioner-Raju Verma, got married to respondent No. 2-Neelam Verma, and two children namely Vanya Verma and Harshit Verma were born out of the wedlock. The daughter is said to be aged 11 years old while the son is said to be aged 7 years old. Vanya Verma (daughter) is said to be studying in Welham Girls School, as a boarder. And Harshit Verma (son) is studying in Brightland School, Dehradun. The respon dent No. 2. Neelam appears to have filed aforesaid case No. 38 of 2007, before Principal Judge, Family Court, Dehradun, for appointing her as a guardian. During the pendency of suit, the impugned interim order is passed directing both the children be given in the custody of respondent No. 2 (mother). Hence this writ petition. 4. Learned Counsel for the petitioner argued that earlier vide order dated 22-9-2007 (copy Annexure 7 to the writ petition), an interim order was passed by the trial Court permitting the mother to meet the children during the interval and after the school (in the school premises). 5. It is further pointed out that said order was modified on 4-10-2007 (copy Annexure 9 to the writ petition), clarifying that only mother can meet the children inside the school and not her father or brother. It is contended on behalf of the petitioner (father) that the parents of respondent No. 2 (mother) are Muslim and the petitioner apprehends that they may try to compel the children to convert the religion. Attention of this Court is further drawn on behalf of the petitioner to Clause (b) of Section 19 of Guardians and Wards Act, 1890, which reads as under: 19. Guardian not to be appointed by the Court in certain cases. Attention of this Court is further drawn on behalf of the petitioner to Clause (b) of Section 19 of Guardians and Wards Act, 1890, which reads as under: 19. Guardian not to be appointed by the Court in certain cases. Nothing in this Chapter shall authorize the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards or to appoint or declare a guardian of the person-- (a) ... (b) of a minor whose father is living and is not in the opinion of the Court, unfit to be guardian of the person of the minor; or (c) ... 6. Lastly, it is argued that no application was moved for the custody of the children by mother (present respondent No. 2) and the impugned order, as such, is liable to be quashed. 7. In reply to above mentioned submissions, learned Counsel for Respondent No. 2, drew attention of this Court to Section 12 of Guardians and Wards Act, 1890 and submitted that no formal application is required to be moved for the custody of the children. In this connection, reliance is placed on the principle of law laid down In Re Sanjiv Datta 1995 All CJ 770 : 1995 AIR SCW 2203. Having gone through said case law and Section 12 of the Act, it is not necessary to move a formal application and the order as to temporary custody of the children could have been passed by the trial Court. 8. But what appears to be illegal in the impugned order, is that the children aged 11 years and 7 years are directed to be given their custody without asking to such children about their will whether they want to go or not. This Court feels that children who are grown up and are being sent in the good schools by their father (present petitioner) should not have been directed by the trial Court to be handed over to respondent No. 2. In the matter of, custody of the children and also in the matter of appointment of guardians what is most important is the paramount interest of the children. It is not clear from the impugned order that whether the interest of children is kept in mind while passing the impugned order. In the matter of, custody of the children and also in the matter of appointment of guardians what is most important is the paramount interest of the children. It is not clear from the impugned order that whether the interest of children is kept in mind while passing the impugned order. What has been mentioned in the impugned order is that a mother cannot be deprived to meet the children. 9. Having heard learned Counsel for the parties, and after going through the papers on record, without expressing any opinion as to the final merits of the Case, this Court. finds that the impugned order dated 4-12-2007, passed by Principal Judge, Family Court, is against the principles of law, as the order has been passed without taking into consideration of the interest of the children. 10. Therefore the writ petition is allowed and the impugned order is accordingly quashed. It is clarified that the proceedings in the suit are not stayed. It is further clarified that no final opinion as to the merits of the case are expressed.