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2014 DIGILAW 1753 (PNJ)

Ramdiya v. Sudesh Kumari

2014-12-17

AJAY KUMAR MITTAL, SNEH PRASHAR

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Sneh Prashar, J. 1. A petition under Section 7 and 10 of Guardians and Wards Act, 1890 (for short "the Act of 1890") was filed by appellant Ramdiya claiming custody of his minor grandson namely, Sameer from Sudesh Kumari, mother of the child. The petition was dismissed by learned Guardian Judge, Jind, vide judgment dated 04.04.2013 passed in petition No. 33 of 2010 dated 06.08.2010, assailing which the instant appeal has been filed. Precisely the facts garnered from the record are as under:-- "Appellant Ramdiya, being paternal grandfather of minor Sameer, pleaded that Sudesh Kumari, his daughter-in-law, had left the matrimonial home on her own volition five months prior to the filing of the petition and had forcibly taken the minor, his grandson, with her. He alleged that Sudesh Kumari had openly challenged that she will keep the custody of the minor until she obtains his entire property. She was a lady, who could even kill the child for the sake of money. Since the time she had taken the child, his health was deteriorating. The other family members of Sudesh Kumari were not happy with the minor child and his future seemed to be dark if left in her custody. Pleading that he was in the capacity to give better education, nourishment and atmosphere to the minor than the respondent, the appellant prayed that Sudesh Kumari be directed to hand over custody of the minor to him and he be appointed the guardian of his person and property." 2. The petition was contested by Sudesh Kumari. In the written reply filed by her, she submitted that she being mother of the minor is his natural guardian. She had been providing all necessities to him as required for his welfare. She also alleged that the instant petition had been filed by Ramdiya (appellant) just to grab money and the property inherited by the minor. 3. On the pleadings of the parties, following issues were framed:-- "(1) Whether the petitioner is entitled to be appointed as guardian of the person and properties of minor Sameer as alleged in the petition? OPP. (2) Whether the petition is not maintainable in the present form? OPR. (3) Whether the petitioner has no cause of action and locus standi to file the present petition? OPR. (4) Relief." 4. Both the parties adduced evidence to substantiate their respective contentions. 5. OPP. (2) Whether the petition is not maintainable in the present form? OPR. (3) Whether the petitioner has no cause of action and locus standi to file the present petition? OPR. (4) Relief." 4. Both the parties adduced evidence to substantiate their respective contentions. 5. Considering the evidence and arguments addressed on behalf of the parties, learned trial Court finding the appellant-petitioner not entitled to be appointed as guardian of the person and property of the minor, dismissed the petition. 6. Feeling aggrieved by the judgment dated 04.04.2013, the appellant preferred the instant appeal. 7. We have heard the submissions made by Mr. Munfaid Khan, Advocate for Mr. Amit Kumar Jain, learned counsel representing the appellant. 8. The facts emerging from the pleadings and evidence of the parties, which could not be disputed, were that the appellant is the paternal grandfather of the minor child and respondent Sudesh Kumari is his natural mother. Satish Kumar, husband of Sudesh Kumari, died in the year 2001. Satish Kumar was serving in Indian Army and he sacrificed his life for the sake of the country in the year 2001. After Satish Kumar died, Sudesh Kumari was married to Devender, younger brother of deceased Satish Kumar by performing customary rites i.e. 'Chadar Andaji'. As stated by Sudesh Kumari, she continued to live with her in-laws' family till the year 2010. No child was born to her from the loins of Devender. After Devender solemnized marriage with some other lady and deserted her she left the matrimonial home. 9. The minor child Sameer born out of the wedlock of respondent Sudesh Kumari and her husband Satish Kumar (since deceased) had been residing with her since birth. He accompanied his mother when she left the matrimonial home. Appellant Ramdiya alleged that the minor was forcibly taken by Sudesh Kumari and that he being the grandfather was in a better position to provide good education and living atmosphere to the minor. He also alleged that Sudesh Kumari was a lady of free style nature and had taken the child forcibly only for the sake of money and property of the child. It is evident from the impugned judgment of learned trial Court that no evidence substantive and reliable, could be led by the appellant to support his aforesaid contentions. He also alleged that Sudesh Kumari was a lady of free style nature and had taken the child forcibly only for the sake of money and property of the child. It is evident from the impugned judgment of learned trial Court that no evidence substantive and reliable, could be led by the appellant to support his aforesaid contentions. So much so that he did not even produce any evidence to prove his financial capability or details of the properties owned/inherited by the minor. On the other hand, the deposition of Sudesh Kumari that she is getting family pension and is also having rental income of ` 8,000/- per month from the flat she was given on the death of her husband, could not be rebutted by the appellant. 10. Indeed, in a case of custody/appointment of guardianship of a minor, the dominant consideration is the welfare of the child. Analyzing the quality of education the minor is getting in the custody of his mother respondent Sudesh Kumari and on having interviewed the minor personally learned Guardian Judge observed as under:-- "In the eye of law a relative of a child cannot claim his custody as of right because welfare of child is of paramount consideration. If interest of child is served, even a mother who has remarried, cannot be deprived of the custody of her minor child. The age of child namely Sameer is approximately 12 years at this stage and he is studying at Jind at present in 6th class. He is getting 2nd position in the class as evident from Ex.R5 and Ex.R6. Regarding custody of child, law has been very succinctly laid down by Hon'ble Apex Court in case titled Lekha v. P. Anil Kumar, 2007(1) R.C.R. (Civil) 308 : 2007(1) Recent Apex Judgments (R.A.J.) 136 and Renu Kathuria v. H.K.L. Kathuria, 1991(2) HLR 179. I personally interviewed the child who refused to go in the custody of petitioner and even denied him as his grandfather." 11. Apparently, the minor is studying in a good school and is doing well in studies. Needless to say that there can be no better person or better lap in the world than that of a mother, where a minor child would feel safe, comfortable and happy. The father of minor Sameer died in 2001. Apparently, the minor is studying in a good school and is doing well in studies. Needless to say that there can be no better person or better lap in the world than that of a mother, where a minor child would feel safe, comfortable and happy. The father of minor Sameer died in 2001. Sudesh Kumari left the matrimonial home in 2010 i.e. after nine years, yet surprisingly the minor seems to be having no attachment with the appellant. Rightly so because nothing could be produced by the appellant to show that he had ever made any special effort to show his affections towards the child by visiting him or sending him any gift etc. The sudden rise in affections of the appellant appears to be because of the property, if any, inherited by the minor. Thus, finding no adversity or illegality in the decision of the learned Guardian Judge, the appeal is hereby dismissed. CM No. 12440-CII of 2014 As discussed above, there is no merit in the appeal filed by the appellant. In addition to that, it is observed that the appeal was filed after 218 days of expiry of limitation period. What to say of explaining some sufficient cause, no reason worth consideration was mentioned by the appellant in his application filed under Section 5 of the Limitation Act for condonation of delay. As such, there being such casual approach on part of the appellant, no ground to condone the delay is made out and the application is dismissed.