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2017 DIGILAW 374 (JHR)

Gopal Prasad v. Shyamdeo Sao

2017-02-22

H.C.MISHRA, S.N.PATHAK

body2017
JUDGMENT : Heard learned counsel for the appellants and learned counsel for the respondents. 2. The appellants are aggrieved by the judgment dated 13th March, 2012, passed by the learned Principal Judge, Family Court, Palamau at Daltonganj, in Guardianship Case No. 1F of 2009, whereby the custody of the child has been given in to the respondents herein, who are the great grandfather and father of the minor boy respectively. The appellants herein, who are the maternal grandfather and maternal grandmother of the child, have been directed to handover the minor son of their deceased daughter to the respondents herein, within one month of the judgment, giving them only the liberty to interact with the minor child, while the minor shall be residing of his father's place. 3. The facts of this case lie in a short compass. The daughter of these appellants were married to the respondent No.2 Akhilesh Prasad and out of the wedlock, one son was born. It is alleged that the mother of the minor son was being subjected to cruelty and torture for demand of dowry and her dowry death was committed at her in-laws place. Thereafter, the child remained in custody of his maternal grandfather and grandmother. It is the admitted case, as is apparent from the impugned judgment, that at the time of filing of the case and during the pendency of the case in the Court below, both the petitioners, i.e., the great grandfather as well as the father of the child were in judicial custody in connection with the criminal case, relating to dowry death of the mother. The Guardianship Case No. 1F of 2009 was filed stating that the wife and daughter-in-law of petitioner-respondent No.1 were living in the house and they were capable to keep the child with them, as they had sufficient means to maintain the child, whereas the maternal grandfather was having a small business of spices and he was not capable to up bring the child, giving proper food and looking after proper development of the child. 4. Upon notice, these appellants appeared in the Court below and filed their written statement, stating that they were fully capable to maintain the child and it was also averred that the petitioners had never visited the child, nor they had ever given any money for the maintenance of the minor. 4. Upon notice, these appellants appeared in the Court below and filed their written statement, stating that they were fully capable to maintain the child and it was also averred that the petitioners had never visited the child, nor they had ever given any money for the maintenance of the minor. It was also stated that they were accused of committing the dowry death of the mother of the child and giving them the custody of the child was detrimental for the welfare of the child. 5. On the basis of the pleadings of the parties, issues were framed by the Court below, one of the issues being issue No. V,-"whether it is proper and safe for the life of the child in the custody of the petitioners against whom the case of dowry death of the mother of the child is going on?". 6. It appears from the impugned judgment that at the time of passing of the judgment, the issues were re-casted and in the aforesaid issue No. V, which was the most important issue to be decided in the case, was deleted. 7. It may be stated at this place itself that it is an admitted position by the learned counsels for the both the sides that the father of the minor son has since been convicted and sentenced by the trial Court for the offence under Section 304-B of the IPC and his appeal is pending in this Court, in which, he has been granted bail. 8. The impugned judgment shows that three witnesses were examined on behalf of the petitioners-respondents in the Court below and two witnesses were examined on behalf of these appellants. The discussion of the evidence made by the Court below shows that there were extensive cross-examinations of the petitioners' witnesses on the point of dowry death of the deceased mother of the minor son, but the Court below has brushed aside those evidence, stating that the cross-examination is only confined mainly towards the alleged dowry death of the deceased mother. It also finds mentioned in the impugned judgment that it has come in the evidence that the petitioners-respondents had never visited to see the minor in the house of the O.Ps., nor had spent any money on him. It also finds mentioned in the impugned judgment that it has come in the evidence that the petitioners-respondents had never visited to see the minor in the house of the O.Ps., nor had spent any money on him. It has also come in the evidence of the petitioners in the Court below that the petitioner-respondent No.1, though was ready to keep and maintain his great grandson, but he was not ready to give any maintenance to him. On the other hand, from the evidence of the O.Ps. appellants, it is clear that the minor son has been admitted in a school and from the time the minor was in custody of his maternal grandfather and grandmother, no one had come to meet him from his father's family, nor any amount was ever paid by them. 9. In spite of the aforesaid evidence on record, it is strange that the Court below has held that the culpability part of the family of the petitioners that they are accused of killing of the mother of the minor in dowry death case, is not very much relevant, if the welfare of the child is to be considered, and the Court below has given the custody of the child to the great grandfather and the father of the minor son. 10. Learned counsel for the appellants has submitted that the impugned judgment passed by the Court below cannot be sustained in the eyes of law, in view of the fact that the respondents were accused of committing dowry death of the mother of the minor boy and ultimately after trial, the father of the minor boy has been convicted and sentenced by the trial Court for the offence under Section 304-B of the Indian Penal Code. Learned counsel placed reliance upon the decision of this Court in Mahendra Modi v. Goberdhan Lal, reported in 2004 (4) JCR 603 (Jhr), wherein, in similar circumstance, the natural father, who was convicted and sentenced for the offence of dowry death of the mother of the child, was denied the custody of the child. 11. Learned counsel for the respondents, on the other hand, has submitted that the father is the natural guardian of the minor son and accordingly, he is entitled to the custody of his son. 11. Learned counsel for the respondents, on the other hand, has submitted that the father is the natural guardian of the minor son and accordingly, he is entitled to the custody of his son. It is submitted that the father and his family members were falsely implicated in the case of dowry death, and though, it is a fact that the father of the child has been convicted and sentenced for the offence under Section 304-B of the Indian Penal Code by the trial Court, but this Court, in appeal, has allowed bail to the father. Learned counsel accordingly, submitted that in view of the fact that the father is the natural guardian of his son, and he is capable to maintain the child, the welfare of the child requires that he be kept in the care and protection of his father, and as such, there is no illegality in the impugned judgment passed by the Court below. 12. Having heard learned counsels for both the sides and upon going through the record, we find that in the present case it is an admitted fact that the father has since been convicted for the offence under Section 304-B of the IPC for committing the dowry death of the mother of the minor son. We are simply at a loss to find as to how the Court below, considering the welfare of the minor, has given the custody of the minor to the petitioners-respondents. In our considered view, the child cannot be given in custody of a person or the family, accused of killing the mother of the child, as that shall have an adverse psychological effect on the child, as the child shall be compelled to live with the persons, whom he knows to be instrumental for the death of his mother. We cannot be a party to this adverse psychological effect on the mentality of the child, compelling him to live in the family, responsible for the unnatural death of his mother, constantly living under a fear and threat. This itself shall have an adverse effect on the overall growth of the child, and not at all conducive for the welfare of the child. 13. This itself shall have an adverse effect on the overall growth of the child, and not at all conducive for the welfare of the child. 13. For the aforesaid reasons, the impugned judgment dated 13th March, 2012 passed by the learned Principal Judge, Family Court, Palamau at Daltonganj, in Guardianship Case No. 1F/2009 cannot be sustained in the eyes of law and the same, is hereby, set aside. 14. We hereby, direct that the child shall remain in custody of the appellants herein, and in the facts and circumstances of this case, we even deny the visitation rights of the father of the child. 15. This appeal is accordingly, allowed with the directions as above.