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2013 DIGILAW 1087 (MP)

Rajeev Verma v. Santosh Kumar Kushwaha

2013-09-10

RAJENDRA MENON, VIMLA JAIN

body2013
JUDGMENT : 1. This is an appeal filed by Rajeev Verma, appellant/non-applicant/father of minor child Ku. Roshani under section 47 of the Guardians and Wards Act, 1890 (hereinafter referred to as "the Act"), being aggrieved by the order dated 27-3-2006 passed by First Additional District Judge, Satna in Misc. Case No. 2/2004, thereby allowing the application filed by Santosh Kumar Kushwaha, respondent/applicant/ maternal grandfather of the minor under section 10 of the Act, for his appointment as the Guardian of minor child Ku. Roshani. 2. The brief facts of the case may be summarised that Premlata Verma, daughter of the respondent/applicant was married to the appellant/non-applicant on 6-12-2000 as per Hindu rites and ward Ku. Roshani was born out of their wedlock on 15-9-2001 at Gupta Clinic, Satna. Premlata Verma, committed suicide on 3-5-2003 by taking poison. Since then the respondent, who is the maternal grandfather of the ward Ku. Roshani has been looking after her. Appellant was prosecuted in Sessions Trial No. 110/03 under sections 498-A, 304-B, 306, 302 or 302/04 of Indian Penal Code. He also intends for his second marriage. The minor child has been residing with respondent, who has been maintaining her. She likes to live with him. Therefore, he filed an application under section 10 of the Act on the aforesaid facts. 3. The appellant/father of minor child denied claim of respondent and pleaded that when he was in jail, respondent/applicant had taken forceful custody of his minor daughter and submitted that he is a practicing lawyer at District Court, Sidhi and also earns substantial income from his computer centre, therefore, he can look after her well. He had no role in death of his wife, therefore, he had been acquitted in Sessions Trial No. 110/2003. He is father and natural guardian of his minor daughter. Thus, he prayed for custody of his minor daughter. 4. The First Additional District Judge, Satna examined the matter, considered all relevant factors for the welfare of the minor and ordered to give custody of minor child Roshani to the respondent/applicant. 5. Aggrieved by the said order, the appellant has carried the matter to this Court by filing this appeal. 6. We have heard learned Counsel appearing for the parties, and perused the record as well as impugned order dated 27-3-2006. 7. 5. Aggrieved by the said order, the appellant has carried the matter to this Court by filing this appeal. 6. We have heard learned Counsel appearing for the parties, and perused the record as well as impugned order dated 27-3-2006. 7. Learned Counsel for the appellant/non-applicant submitted that the entire approach of the trial Court in the matter has been grossly erroneous. The trial Court has ignored the essential material facts, that the appellant is father and natural guardian of the minor child. He further submitted that appellant and his family are financially sound and he can properly protect the interests of her minor child. In his submission, he referred the case of R. V. Srinath Prasad vs. Nandamuri Jayakrishna and others, AIR 2001 SC 1056 . 8. Learned Counsel of respondent/applicant supported the finding of the Court below and contended that the Court below, considering welfare of the child, who is staying with her maternal grandfather since her birth and after the death of her mother, rightly allowed the petition. 9. Now the question is whether it would be in the welfare of the child to keep it in the custody of the appellant (father) or respondent (maternal grandfather). 10. For the sake of convenience, section 7 of the Guardians and Wards Act, 1890 is reproduced herein : -- "7. Power of the Court to make order as to guardianship. -- (1) Where the Court is satisfied that is for the welfare of a minor that an order should be made -- (a) appointing a guardian of his person or property or both, or (b) declaring a person to be such a guardianship. The Court may make an order accordingly. (2) An order under this section shall imply the removal of any guardian, who has not been appointed by Will or other instrument or appointed or declared by the Court. (3) Where a guardian has been appointed by Will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act." 11. The respondent/applicant Santosh Kumar stated before the trial Court that being the maternal grandfather of the minor Roshani, it would be appropriate to grant her custody to him. The respondent/applicant Santosh Kumar stated before the trial Court that being the maternal grandfather of the minor Roshani, it would be appropriate to grant her custody to him. He has been taking care of the minor child Roshani right from her birth. He and his family members have been looking after the child with great care and affection from the time of her birth and after death of her mother. He also stated that the child is prosecuting her studies in English Medium and also attending dance class. His family members are well educated and they take care of her. Appellant/non-applicant had been prosecuted for murder of her mother. An appeal is pending in High Court against his acquittal. His statement is also supported by his wife Siyadulari (A.W. 1) and two independent witnesses Ramkali Singh (A.W. 3) and Jag Prasad Garg (A.W. 4). 12. The appellant/non-applicant (NAW 1), Rajeev Verma stated that being father and natural guardian of the child, he has an un-fettered right to claim back her custody from the hands of her maternal grandfather. He and his family are in a better financial position in comparison of respondent and the child will be protected in his custody. In support of his version, he had examined two witnesses namely Dej Raj Verma (NAW 2) and Mohd. Jahagir Ansari (NAW 3). 13. The principles in relation to custody of a minor child are well-settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the "welfare of the child" and not rights of the father. 14. The Apex Court held in Rattam Amol Sing vs. Kamaljit Kaur, AIR 1961 Punjab 51, as follows : -- "The father's right to the custody of his minor child is not absolute; nor is it indefeasible in law; it is circumscribed by the consideration of the benefit and welfare of the minor." 15. In Thrity Hoshie Dolikuka vs. Hoshiam Shavaksha Dolikuka, (1982) 2 SCC 544 = AIR 1982 SC1276, Apex Court held as under : -- "17. The principles of law in relation to the custody of a minor appears to be well-established. It is well-settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. The principles of law in relation to the custody of a minor appears to be well-established. It is well-settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor's interest. In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor." 16. In R. V. Srinath Prasad vs. Nandamuri Jayakrishna and others, AIR 2001 SC 1056 , this Court held as under : -- "Custody of minor children is a sensitive issue. It is also a matter involving sentimental attachment. Such a matter is to be approached and tackled carefully. A balance has to be struck between the attachment and sentiments of the parties towards the minor children and the welfare of the minors, which is of paramount importance." 17. We have to take into consideration the fact that admittedly the appellant is a single person and does not have any female support to look after the girl child. The mother of child is no more. Bringing up a girl child does not provide only pleasure, but also involves the discharge of great responsibility. In this case, respondent-Santosh (A.W. 2) and his wife Siyadulari (A.W. 1) expressed their willingness to take up responsibility to bring up minor girl child. They are taking her care from her birth. Under their guardianship and guidance she has been growing for last 13 years and apparently the child is sentimentally attached with them. 18. It appears to us that it is not safe to handover the child to the appellant who admittedly had been prosecuted for the murder of her mother. We conclude that it would not be in the interest of the minor child to take her back from the care and custody of the active and loving maternal grandfather and grandmother. In these circumstances, we find no compelling reasons that would justify our cutting off this bond of emotional attachment and security between the child and her maternal grandfather. We conclude that it would not be in the interest of the minor child to take her back from the care and custody of the active and loving maternal grandfather and grandmother. In these circumstances, we find no compelling reasons that would justify our cutting off this bond of emotional attachment and security between the child and her maternal grandfather. We, therefore, consider that in the peculiar circumstances of this case, it would not be just and proper to direct the girl child to be handed over to the appellant at this stage. 19. The appellant father is young man. He certainly intends for his second marriage. In the present circumstances, child has been getting and can hope to get greater warmth and affection in the company of her maternal grand parents than that of her father, who is alone now. It is our considered opinion that it would be in the best interest of the minor, keeping in view her emotional attachment, safety, well being and her all-round physical, moral, emotional, religious, social and educational development, to allow her to live with her maternal grand parents. The child has been living with them for about thirteen years and has been growing up well in an atmosphere, which is conducive to her growth. Her strong bond of love and affection has been established with her maternal grand parents. Therefore, it shall not be proper at this stage to divert the child from the existing environment to which she became used to during last thirteen years. 20. The appellant's allegation that the respondent is not financially sound to bring up the child, cannot be accepted. The respondent is working on the post of RAEO, in the Agriculture Department of State of M.P. His family members are well-educated. In these circumstances, we do not have any doubt that the interest of the minor child would suffer in any way due to financial stringency by keeping her in the custody of the respondent. 21. In view of the above discussion, we have reached to the inevitable conclusion that there is no irregularity or illegality in impugned order dated 27-3-2006 passed by the learned First Additional District Judge, Satna, thereby allowing the application-filed by respondent under section 10 of the Act for his appointment as the guardian of minor girl Roshani. 22. 21. In view of the above discussion, we have reached to the inevitable conclusion that there is no irregularity or illegality in impugned order dated 27-3-2006 passed by the learned First Additional District Judge, Satna, thereby allowing the application-filed by respondent under section 10 of the Act for his appointment as the guardian of minor girl Roshani. 22. However, we do not want the child to grow without experiencing the love and affection of her father who too has a natural right to love her, to meet her and to play his role in shaping her life and career. Therefore, we permit the appellant to meet Ku. Roshani and to take her to his home in Sidhi during one weekend in a month. He may take her on Friday evening or Saturday morning, but he must ensure hat she reaches back Satna by Sunday evening. This is subject to the condition that her education does not suffer adversely. The respondent should not prevent the child from meeting the appellant/father and accepting any gift offered by him. 23. In result, the appeal is dismissed in the above terms. Parties to bear their own costs. Appeal dismissed.