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2012 DIGILAW 2176 (RAJ)

Dilip Gehlot v. Yashoda Deora

2012-11-05

DINESH MAHESHWARI, VINEET KOTHARI

body2012
JUDGMENT 1. These two cross-appeals, arising out of the judgment and decree dated 01.12.2009 as passed by the Family Court, Jodhpur in a petition under Sections 7 and 8 of the Guardian and Wards Act, 1890 (CO No.30/2007), have been considered together; and are taken up for disposal by this common judgment. 2. It may be observed at the outset that for a relevant subsequent event, as said to have taken place on 11.6.2012, not much of dispute appears surviving and, therefore, dilatation on all the factual aspects is not necessary; only a brief reference to the background aspects would suffice. 3. The matter relates to the custody and guardianship of the minor Master Dev. The appellant of CMA No.155/2010, Shri Dilip Gehlot (the non-applicant before the Family Court), is the father of the child whereas the appellant of CMA No.1092/2010, Smt. Yashoda Deora (the applicant before the Family Court), is the maternal grand-mother of the child. Late Ms.Anjali, the daughter of the applicant, was married to the non-applicant and out of this wedlock, the child Master Dev was born on 19.11.1999. Unfortunately, the applicant's daughter Ms.Anjali, the mother of the child Master Dev, expired on 07.07.2001. It has been the case of the applicant that before her death, Ms. Anjali appointed her father (i.e., the husband of the applicant) Shri Dinesh Deora as the guardian of the child Master Dev. It is borne out from the material on record that the said Shri Dinesh Deora filed a writ petition before the Hon'ble Madras High Court on 29.10.2001 in relation to the custody of the child, wherein an interim order was passed. However, unfortunately, the said Shri Dinesh Deora also expired on 18.02.2007. 4. Seeking the orders for custody and guardianship of the child Master Dev, the applicant submitted that in the adverse circumstances, she closed down her husband's business at Madras and came down to Jodhpur with the D.B. child Master Dev and her daughter Ms. Raina; started residing with other members of the family; and got the child Master Dev admitted to the school at Jodhpur. The applicant submitted that she was looking after the welfare of the child; and so was her daughter Ms. Raina, who was also contributing Rs. 2,000/- per month in this regard. It was further submitted that the non-applicant, the father of the child Master Dev, had contacted second marriage with Ms. The applicant submitted that she was looking after the welfare of the child; and so was her daughter Ms. Raina, who was also contributing Rs. 2,000/- per month in this regard. It was further submitted that the non-applicant, the father of the child Master Dev, had contacted second marriage with Ms. Beena, daughter of Shri Narendra Sankhala. 5. While asserting that the mother of the child had expressed her wishes that the child should remain with his maternal grand-parents and while further alleging that the non-applicant had not been fair in his conduct towards the child and his mother, the applicant prayed that she be appointed as the guardian of the person and property of the child Master Dev. 6. The application was put to contest by the non- applicant on several grounds. However, after taking the evidence and considering the submissions of the respective parties, the Family Court, Jodhpur observed that the child was being properly looked after by the applicant, the maternal grand-mother; and the child had also expressed his desire to live with her. The Family Court, even while finding it to be in the welfare of the child that he remained under the guardianship of the applicant, considered it proper to take into account the wishes and desire of the non-applicant too; and, while making provision for his meeting with the child at regular intervals, proceeded to order as follows: " vr% izkFkhZ;k Jherh ;'kksnk nsoh dk vkosnu vUrxZr /kkjk 7 ,oa 8 laj{kd ,oa izfrikY; vf/kfu;e 1890 fo:) fnyhi vkaf'kd :i ls Lohdkj fd;k tkrk gS ,oa izkFkhZ;k ;'kksnk nsoh dks ckyd nso dk o;Ld gksus rd laj{kd ?kksf"kr fd;k tkrk gSA izkFkhZ;k dks ikcUn fd;k tkrk gS fd og ckyd nso izR;sd 'kfuokj dks nksigj nks cts ls jfookj 'kke 6 cts rd ds fy, vizkFkhZ firk fnyhi ls feyus ds fy, lqiqnZ djsaxsA nksuksa i{kksa ls vk'kk dh tkrh gS fd os ,slk ekgkSy cuk;s j[ksa rkfd ckyd nso dks mldh i<+kbZ fy[kkbZ o [ksydqn o vkxkeh thou ;kiu esa fdlh izdkj dh dksbZ ihM+k ;k dfBukbZ dk lkeuk ugha djuk iM+sA mDr feyku dh vof/k esa i{kdkjkUr vkilh lgefr ls ifjorZu Hkh dj ldsaxsA i{kdkjku izkFkZuk i= dk [kpkZ Lo;a ogu djsaxsA " 7. The non-applicant and the applicant have filed the respective appeals against the part of judgment and decree dated 01.12.2009 insofar the directions aforesaid operate in favour of the other. Though several grounds have been urged by the parties in the respective appeals but, it has been given out that now, the changed scenario is that the applicant Smt. Yashoda Devi, for several reasons and circumstances including her age, has since shifted to Jaipur to live with her kith and kins; and being satisfied that the child would be properly looked after by the non-applicant, who is none other but the father of the child, has voluntarily handed over the custody of the person of the child to the non-applicant on 11.06.2012. 8. The learned counsel for the parties submit ad idem that the child Master Dev is now happily living with and under the guardianship of his father i.e., the non-applicant Shri Dilip Gehlot (appellant of CMA No.155/2010); and is continuing with his studies. 9. The learned counsel for the applicant, however, submitted that for the natural love, affection and attachment, she would desire meeting the child at some intervals and the child may also wish to be with his maternal grand-mother and other relatives for some time. To this, the learned counsel for the non-applicant frankly submitted that no dispute as such remaining between the parties and welfare of the child being the concern of all, the non-applicant will not create impediment in intermittent meeting of the applicant and the child Master Dev. 10. Looking to the status of the parties and having regard to the submissions made before us and the observations made by the Family Court in the judgment impugned, this much is apparent that the child is otherwise neither apprehensive of his father nor appears to be uncomfortable with him. The father, the non-applicant, has shown keenness to look after all the aspects of welfare of the child. It is also given out that his second wife is also keen to ensure proper upbringing of the child. An added factor to the scenario is that the non-applicant has no issue from the second marriage. In the totality of the circumstances, we feel satisfied that retaining the custody of the child with the non-applicant, who is the father and natural guardian, is in the welfare and interest of the child. 11. An added factor to the scenario is that the non-applicant has no issue from the second marriage. In the totality of the circumstances, we feel satisfied that retaining the custody of the child with the non-applicant, who is the father and natural guardian, is in the welfare and interest of the child. 11. We may, however, observe that in the circumstances of the case, it would definitely be expected of the non- applicant to take care of the child and to ensure his proper grooming and upbringing; and, if at all the child would require, or the applicant would desire, to meet each other, it would be for the non-applicant to make proper arrangements in that regard and for that matter, if necessary, also to ensure journey of the child to the place of residence of the applicant. 12. In view of the above, the impugned decree deserves to be, and is accordingly, modified as under: The non-applicant Shri Dilip Gehlot (the appellant of CMA No.155/2010), the father and natural guardian, shall continue as the guardian having the care of the person and property of the child Master Dev until the child attains the age of majority. However, it shall be required of the non- applicant - appellant Shri Dilip Gehlot to ensure meeting of the child and his maternal grand-mother i.e., the appellant of CMA No.1092/2010 Smt. Yashoda Deora at reasonable regular intervals and particularly as and when desired by the child and the maternal grand-mother but without compromising with the studies and other growth-related activities of the child.The appeals are partly allowed in the manner and to the extent indicated above. No costs.Appeal partly allowed. *******