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2013 DIGILAW 941 (PNJ)

Imarti Devi v. Madhu Devi

2013-07-26

BHARAT BHUSHAN PARSOON, RAJIVE BHALLA

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JUDGMENT Mr. Rajive Bhalla, J.:- The appellant prays that order dated 17.9.2012 passed by the District Judge, Narnaul, dismissing the appellant’s petition, filed under Section 6 of the Hindu Minority and Guardianship Act, 1956 read with Section 7 of the Guardians and Wards Act, 1890, for guardianship of the minor, may be set aside. 2. The appellant is the grand mother of the minor, whereas the respondent is the later’s mother. The father of the minor, i.e., the son of the appellant and husband of the respondent, passed away, in an accident, on 22.3.2010. The appellant filed a petition for custody and guardianship of the minor by alleging that after the demise of her son, the respondent resided with her in village Kheri and they filed a joint petition for grant of compensation under the Motor Vehicles Act, 1988, which is pending. The respondent left the appellant’s house with the minor in January, 2011 on the pretext of visiting her parents, but did not return and instead got married to one Narottam son of Ram Niwas Sharma, resident of village Sagwari. The appellant made a request to the respondent to hand over custody of the minor but to no avail. The appellant also alleged that as the respondent has remarried, the minor is not being looked after and is being treated as a foster child by the second husband, of the respondent. 3. Notice of the petition was issued, but as the respondent did not put in appearance, she was proceeded against ex parte, by the trial court, on 03.10.2011. The appellant led ex parte evidence and apart from examining herself as PW1, examined Surender Singh, Lambardar as PW2 and one Rajender Singh as PW3. 4. After considering the pleadings, the evidence adduced as well as arguments addressed, the trial Court held that the mere fact that the respondent has re-married, does not disqualify her from custody of the minor and as evidence on record, does not prove that the respondent and Narottam, the second husband of the respondent, are neglecting the welfare of the minor, the petition is dismissed. 5. Counsel for the appellant submits that the appellant is the grand mother of the minor. The respondent has re-married and during pendency of proceedings, has given birth to another child. 5. Counsel for the appellant submits that the appellant is the grand mother of the minor. The respondent has re-married and during pendency of proceedings, has given birth to another child. It is further submitted that as the respondent was proceeded ex parte before the trial court and also in the present appeal, averments in the petition as well as in the appeal have to be accepted as true and therefore, sufficient to hold in favour of the appellant. 6. Counsel for the appellant further submits that the natural guardian’s right to custody of a minor is not absolute. The custody of a minor lies with the person best equipped to look after welfare of the minor. Counsel for the appellant relies upon a judgment of the Hon’ble Supreme Court in Smt. Anjali Kapoor versus Rajiv Baijal 2009(3) RCR (Civil) 903. 7. We have heard counsel for the appellant, perused the impugned order, considered the pleadings as well as the evidence adduced by the appellant before the trial court and find no reason to take a view contrary to the opinion recorded by the trial court. The duty to ensure that custody and guardianship of a minor is entrusted to a person best equipped to look after the minor rests with a court. The welfare of a minor surmounts all other factors such as relationship, financial resources, remarriage of the mother etc. The judgment relied by counsel for the appellant, in support of his submissions, deals with a case, where the minor was in custody of the grand mother since birth. Her father had remarried and there was no proof that the grand mother was not capable of looking after the welfare of the child. The Hon’ble Supreme Court, therefore, held that welfare of the child lies, in granting custody and guardianship, to the grand mother. The situation, in the present case, is entirely different. The child, from the very beginning is in the care and custody of her natural mother, i.e., the respondent. The appellant has not produced any evidence to prove that the child is not being looked after by the respondent or that her needs are being ignored or neglected, whether by the respondent or by the second husband, of the respondent. The child, from the very beginning is in the care and custody of her natural mother, i.e., the respondent. The appellant has not produced any evidence to prove that the child is not being looked after by the respondent or that her needs are being ignored or neglected, whether by the respondent or by the second husband, of the respondent. The argument that as respondent has remarried, custody of the minor should be entrusted to the appellant is abhorrent to the very concept of parenthood and a throwback too feudal times in our social past. The right of a widow to remarry, is absolute and not circumscribed by any condition, that requires her to give up her minor child as a condition precedent to a second marriage. The case, in hand, in our considered opinion, has been filed on the sole ground that as the respondent has re-married and therefore, custody and guardianship of the child should be handed over to the appellant. The appellant has not adduced any evidence, much less, prima facie to prove that the welfare of the child is being neglected, by her mother or the second husband. 8. In view of what has been stated hereinabove, the appeal is dismissed with no orders as to costs. ---------0.B.S.0------------