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Madhya Pradesh High Court · body

2013 DIGILAW 383 (MP)

Sharif Khan v. Muniya Khan

2013-03-20

G.D.Saxena, S.K.Gangele

body2013
ORDER G.D. Saxena, J. 1. This appeal is directed against an order dated 10th December, 2012 recorded in Civil Case No. 41/10 rejecting the application preferred by the appellant under section 7 of the Guardians and Wards Act, 1890. 2. Admitted facts are that the marriage was solemnised between the parties prior to eight years ago which was duly consummated and two sons were born out of their wedlock, who at present are living with his mother at her parental house, at Jaura. It was alleged by the appellant that initially the behaviour of the respondent was not good and she oftenly used to quarrel with him. She left her matrimonial house with her children on her own and started living in her parental house. On the contrary, the stand of the respondent was that due to demand of dowry she was harassed by her husband-appellant. She stated that her husband deserted her out of the matrimonial house and therefore she started residing at her parental home. She also reported the incident to the police station, Jaura on which a Crime No. 734/09 was registered against her husband and his relations. Meantime, she moved an application under section 125 of CrPC for grant of interim maintenance before the Court on which an order was passed after recording the pleadings and evidence of both the parties. The Court vide order dated 6.7.2010 directed the appellant-husband to pay monthly maintenance amount of Rs. 2,500/- to his wife and Rs. 1,500-1,500, respectively, to his children. Considering the future aspects of the children, the appellant moved an application for their custody before the Court, which was rejected under the order impugned. Hence, this appeal under section 47 of the Guardians and Wards Act, 1890. 3. Learned counsel for the appellant contended that the trial Court was not justified in rejecting his application for custody of the child. It is submitted that the respondent is not able to properly maintain their children and so looking to the welfare of the children, the application for custody of the children was moved which was not considered in proper way and rejected on wholly untenable grounds. Therefore, it is prayed that the appeal may be allowed and the custody of the children may be given to him. 4. Therefore, it is prayed that the appeal may be allowed and the custody of the children may be given to him. 4. The main question which has now to be decided by this Court is whether the custody of the children should be handed over to the appellant or not in the light of the present set of circumstances ? 5. In matters relating to the custody of children, the welfare and wishes of the child are of paramount importance. It is not only the physical but also the mental welfare which has to be taken into consideration by the Courts. 6. The appellant examined himself as PW1 before the Court. He admitted in his evidence that a suit for maintenance was filed against him in the Court of Judicial Magistrate First Class, Jaura which was pending in which the Court directed him to pay interim maintenance to his wife and children. He also admitted that his wife left the house since year 2010 and the criminal case was also registered against him for demand of dowry. Respondent also stated while examining herself in the Court that she is residing with her children at her parental house. She stated that the conduct of her husband was not proper and he is in the habit of taking drinks. She also stated that if the custody of the children has been allowed to her husband, it would not only create a healthy and congenial atmosphere for upbringing of their children but also affect their future. Hence, after taking into consideration the pleadings and the evidence on record, the trial Court has found that the respondent-mother is competent to look after the children with all love, care and affection and did not think it proper to provide custody of the children to her husband. Consequently, the application stood rejected. The term guardian has to be taken in its widest possible sense. It has to be measured not only in terms of money and physical comfort but also should include moral and ethical welfare of the child. Consequently, the application stood rejected. The term guardian has to be taken in its widest possible sense. It has to be measured not only in terms of money and physical comfort but also should include moral and ethical welfare of the child. The Hon’ble Supreme Court, in the case of Elizabeth Dinshaw v. Arvind M. Dinshaw ( AIR 1987 SC 3 ), has held that whenever a question arises before Court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but the sole and predominant criterion of what would best serve the interest and welfare of the minor. 7. Admittedly, the father being a natural guardian of a minor has a preferential right to claim custody of his child but the Court has to see the welfare of the child and not the legal right of a particular party. Hence, after considering the arguments and going through the reasonings on record, we see no reason to allow the appeal. Same is accordingly dismissed. 8. At this stage, learned counsel for the appellant submits that the appellant at least may be allowed to meet their children at such place or time which this Court decides proper and he would obey the directions so given to him. 9. In the opinion of this Court, it would be just and proper that the appellant should raise his grievance before the Court competent which shall consider and pass necessary order.