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2016 DIGILAW 409 (RAJ)

Shanti Devi v. Fuli Devi

2016-03-14

P.K.LOHRA

body2016
JUDGMENT : P.K. Lohra, J. Appellant has laid this appeal under Section 47 of the Guardians and Wards Act, 1890 (for short 'the Act') to assail the impugned order dated 09.02.2016 passed by the Additional District Judge, Sojat District Pali (for short 'the learned Trial Court'). By the order impugned, learned Trial Court has allowed the petition of the respondent-mother for interim custody of her minor sons Kiran and Vivek respectively. 2. The facts apposite for the purpose of this appeal are that respondent initiated proceedings before the learned Trial Court for guardianship and custody of her two minor sons Kiran and Vivek aged 6 and 4 years respectively. It was, inter alia, averred in the petition that they are in custody of the appellant who is grand mother of the minor kids. The respondent stacked her claim for custody of minor children as their natural gaurdian after death of their father. Along with petition for guardianship and custody, the respondent also filed a separate petition under Section 12 of the Act craving interim custody of the minor children. Asserting her right as a natural guardian of both the minor children after death of her husband, the respondent has also pleaded some relevant facts for craving interim custody of the minor children in their welfare. 3. The petition is contested by the appellant precisely on the ground that respondent has remarried, therefore, it is not in the welfare of the minor kids to grant their interim custody to her. In the reply, it is also pleaded that respondent in presence of Panchayat has disowned both the minor children and now after entering into matrimony with someone else, it would not be in the interest of kids to grant interim custody to the respondent-mother. 4. The learned Trial Court, after hearing the rival parties, by the order impugned, allowed the petition of the respondent under Section 12 of the Act and granted her interim custody of the children. 5. I have heard learned counsel for the appellant and perused the impugned order. 6. The pivotal question which has emerged in this appeal for judicial scrutiny lies in a narrow compass. While examining the legality and propriety of the impugned order, this Court is required to see whether remarriage of a mother is an embargo for claiming interim custody of her minor children. 6. The pivotal question which has emerged in this appeal for judicial scrutiny lies in a narrow compass. While examining the legality and propriety of the impugned order, this Court is required to see whether remarriage of a mother is an embargo for claiming interim custody of her minor children. There remains no quarrel that after death of father, mother is a natural guardian of her minor children but upon a conjoint reading of the provisions of Hindu Minority and Guardianship Act, 1956 and the provisions of the Act, it becomes abundantly clear that mother cannot claim primacy for guardianship and custody of minors at the costs of jeopardising welfare of the children. The concern of the Court while granting interim custody of a minor child is to see the moral and ethical welfare of the child. In the instant case, while opposing prayer of the respondent for interim custody of minor children, appellant has not pleaded any material fact to show that grant of interim custody of minor kids to her would not be in moral and ethical welfare of the minor. The only reason which is sought to be cited by the appellant is remarriage of the respondent. In the considered opinion of this Court, factum of remarriage of the mother cannot disentitle her to claim interim custody of her minor kids. The facts pleaded by the appellant for castigating the respondent in neglecting the kids or ignorant about the welfare of the kids are superfluous and that being so, aptly dealt with by the learned Trial Court in the impugned order. The learned Trial Court has also laid emphasis on a benevolent gesture shown by the respondent in parting with Rs. 1,00,000/- which she has received as compensation in accident claim case of her late husband who died in road accident. As a matter of fact, the respondent has deposited Rs. 50,000/- each for both the children in the fixed deposit out of the amount which she has received as compensation, is a sufficient proof to show her bona fide and credentials that she is seriously concerned about the welfare of the minor kids. 7. As a matter of fact, the respondent has deposited Rs. 50,000/- each for both the children in the fixed deposit out of the amount which she has received as compensation, is a sufficient proof to show her bona fide and credentials that she is seriously concerned about the welfare of the minor kids. 7. The Supreme Court in the case of Kumar V. Jahgirdar v. Chethana Ramatheertha: (2004) 2 SCC 688 while approving the judgment of High Court completely repelled the argument of a natural father that remarriage of the mother is an embargo for claiming custody of a minor child. The Court held,- ".......We, however, do not find that the judgment of the High Court is based solely on one consideration that between two parents, the mother always can claim superior right to retain the custody of the child. The High Court has taken into consideration all other relevant facts and circumstances to come to the conclusion that female child of growing age needs company more of her mother compared to the father and remarriage of the mother is not a disqualification for it. The conclusion of the High Court seems to be just and proper in safeguarding the interest of the child." 8. In the case of Gaurav Nagpal v. Sumedha Nagpal: (2009) 1 SCC 42 , Supreme Court has emphasised welfare of a child as prime consideration for determining issues relating to his custody and visitation rights. While deciding a dispute between mother and father, the Court preferred custody of the mother of a minor child in his welfare. The Court held,- "48. Merely because there is no defect in his personal care and his attachment for his children--which every normal parent has, he would not be granted custody. Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him. Children are not mere chattels nor are they toys for their parents. Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him. Children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. 49. In Surinder Kaur Sandhu v. Harbax Singh Sandhu, this Court held that Section 6 of the Act constitutes father as a natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. [See also Elizabeth Dinshaw v. Arvand M. Dinshaw and Chandrakala Menon v. Vipin Menon (Capt).] 50. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mousami Moitra Ganguli's case, the court has to give due weight-age to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others. 51. The word "welfare" used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well-being. They are equal if not more important than the others. 51. The word "welfare" used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well-being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases." 9. In view of the law laid down by Apex Court, endeavour of the appellant to retain interim custody of the minor children as grand mother in preference to respondent-mother is all the more vulernable. 10. Therefore, viewed from any angle, I am unable to find any illegality or perversity in the impugned order passed by the learned Trial Court warranting interference in this appeal. 11. Resultantly, the appeal fails and the same is hereby dismissed summarily.