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2015 DIGILAW 1380 (GAU)

Niyoti Das v. Mission Suklabodya

2015-11-04

N.CHAUDHURY

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JUDGMENT : This appeal under Section 47 of the Guardians and Wards Act, 1890 is filed challenging the judgment dated 19th February, 2005 passed by the learned District Judge, Hailakandi in Misc(G) 43/2004 filed under Section 7 of the Guardianships and Wards Act, 1890. By that judgment the learned District Judge not only rejected the application but also appointed one Gupon Suklabaidya (paternal uncle of the minor) as guardian. 2) The basic facts involved in this appeal is that minor Marjan Suklabaidya is the son of Mission Suklabaidya and Gita Das. Mission Suklabaidya married Gita Das as per the Hindu rites. But unfortunately on 13.4.2004 after the birth of the minor child the mother got killed. Lala PS case 60/2004 came to be registered in connection with the said unnatural death and a criminal trial ensued against the father of the minor child. After a fullfledged trial the learned Sessions Judge, Hailakandi by the judgment dated 14th September, 2005 in Sessions case no.16/2005 convicted both the accused persons and sentenced Mission Suklabaidya to death penalty and the co-accused Uttam Chackrobarty to life imprisonment. It is necessary to mention here that the minor son was examined as child witness in the case and his deposition was considered as one of the grounds for conviction. 3) The judgment of the learned Sessions Judge was referred to this High Court for confirmation. This High Court in Death Ref. 4/2005 confirmed the death sentence and also dismissed the criminal appeal 212/2005 filed by the accused persons. 4) Criminal appeals 869/2006 and 871/2006 were filed before the Hon’ble Supreme Court against the judgment of this High Court. The Hon’ble Supreme Court by the judgment dated 26th April, 2006 in Uttam Chakraborty v. State of Assam reported in (2010) 14 SCC 518 modified the death sentence of Mission Suklabaidya to life imprisonment. The father of the minor child has been suffering life imprisonment in jail. 5) Pending investigation and trial of the aforesaid criminal case the maternal grandmother of the minor child filed an application under Section 7 of the Guardianships and Wards Act, 1890 before the learned District Judge praying for guardianship of the minor child in view of the fact that the child had lost his mother in the hand of his own father and since then the boy was being looked after by his grandmother. 6) On being notified the father of the minor appeared and submitted an application through his constituted attorney, who is none other than his younger brother viz. Gupon Suklabaidya. The learned District Court after considering the pros and cons of the matter was of the view that under the peculiar circumstances the natural guardian could not be given the custody of the child but at the same time the learned District Court was of the further view that the maternal grandmother was also not fit for being appointed as guardian, rather the paternal uncle Gupon Suklabaidya was found to be fit for being appointed as guardian and accordingly the proceeding was disposed of by giving a direction for issuance of a guardianship certificate in favour of this Gupon Suklabaidya. The judgment dated 19th February, 2005 thus appointing Gupon Suklabaidya as guardian of the minor child is challenged in the present appeal by one Smt. Nioti Das, who is the maternal grandmother of the minor child. While admitting the appeal the impugned judgment was stayed, consequently the minor continued to stay with his maternal grandmother. 7) I have heard Mr. K.A. Mazumdar, the learned counsel for the appellant and Mr. F.U. Borbhuyan for the respondent. Also perused the record. 8) The matter was initially heard on 7.1.2015 when it came to light that by this time the minor child might have become major and so in view of the interim order passed by this Court the learned counsel for the appellant was requested to obtain instructions as to the present status of the guardian as well as that of the minor. Mr. K.A. Mazumdar thereafter obtained instructions and made submissions today at the bar that Gupon Suklabaidya in whose favour the guardianship was ordered has died 2-3 years back. This information the learned counsel claims to have obtained from the minor child who is 16 years of age now. The minor is now reading in Class X at Lala Multi-purpose H.S. School and is living under the care and protection of his maternal grandmother for last ten years. When the appeal has been pending hearing the child has been staying with his grandmother and has been reared. 9) Mr. Mazumdar having consulted the minor child and the appellant has informed this Court that the minor is also willing to stay with his grandmother at this stage. When the appeal has been pending hearing the child has been staying with his grandmother and has been reared. 9) Mr. Mazumdar having consulted the minor child and the appellant has informed this Court that the minor is also willing to stay with his grandmother at this stage. He is afraid of going to the family of his paternal side as he is one of the witnesses on whose deposition Mission Suklabaidya was convicted. 10) Be that as it may, the present appeal is in relation to the judgment dated 19th February, 2005 passed by the learned District Court under Section 7 of the Guardianships and Wards Act, 1890 whereby one Gupon Suklabaidya was appointed as guardian of the minor Marjan Suklabaidya, who is 16 years of age at this stage. The guardianship certificate was stayed by this Court by an interim order passed on 25.5.2005 in MC 1304/2005. 11) The appellant did not implead Gupon Suklabaidya in whose favour the guardianship was given. Under the circumstances the said Gupon Suklabaidya appears to be a necessary party. The appellant was at liberty to implead Gupon Suklabaidya even at this stage in exercise of power under Order 41 Rule 20 of the Code of Civil Procedure. But since Gupon Suklabaidya has already died there is no scope for exercising such jurisdiction. Rather in view of this fact the impugned judgment dated 19th February, 2005 has lost its efficacy. Consequently the appeal is closed as infructuous. 12) Send down the records to the learned trial court. 13) Needless to say, the maternal grandmother in whose custody the minor is being reared all these years is at liberty to approach the appropriate authority for necessary orders, if so advised. 14) The judgment of the Hon’ble Supreme Court in Uttam Chakraborty v. State of Assam reported in (2010) 14 SCC 518 shall be kept on record.