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2018 DIGILAW 759 (MP)

Chaganlal Mansoriya v. Ajay Kewat

2018-09-05

R.S.JHA, SANJAY DWIVEDI

body2018
JUDGMENT 1. Parties as ordered by this Court are present in the Court personally alongwith the child. 2. The learned counsel for the parties are heard finally. 3. This appeal has been filed by the appellant being aggrieved by order dated 31.1.2018 passed by the Second Additional Principal Judge, Family Court, Jabalpur in Guardians and Wards Case No. 4/2016, whereby the application filed by the respondent under section 25 of the Guardianship and Wards Act, has been allowed and the custody of the child Daksh has been directed to be handed over to the respondent father. 4. The appellant who is the maternal grand father of the child has filed this appeal alleging that the respondent was married to his daughter Dimple. Thereafter, she died in an unnatural circumstances on 26.8.2014 after the birth of the child Daksh. It is stated that the appellant filed an FIR against the respondent in respect of the death of his daughter pursuant to which the respondent was confined to jail. It is submitted that at that point of time as there was nobody to look after the infant child, the appellant and the father of the respondent agreed that the child should be kept in the custody of the appellant. It is submitted that for this purpose they had also entered into an agreement on 2.2.2015. It is submitted that in the agreement, the father of the respondent had also agreed to pay a sum of Rs.4,50,000/- for the upkeep of the child. It is submitted that subsequently the respondent was acquitted in the criminal proceedings and thereafter, he has filed an application for custody and guardianship of the child which has been allowed by the trial Court by the impugned order dated 31.1.2018, hence, this appeal. 5. The learned counsel for the appellant submits that the Court below has failed to take into consideration the fact that the respondent was a person who was criminally prosecuted for allegedly committing the murder of his wife and daughter of the appellant and therefore, it is against the interest of the child to be kept in the guardianship of such a person. It is further submitted that the respondent is a person who is working and in such circumstances, there is nobody in his house to look after the child and therefore, in case, the impugned order is upheld and the child is directed to be handed over to the respondent, there would be nobody to look after him which would be detrimental to his interest. 6. The learned counsel for the petitioner further submits that in such cases, it is the interest of the child that is to be kept in mind and as the interest of the child lies in remaining in the custody of the appellant, therefore, the impugned order be set aside and the custody of the child be directed to be continued with the appellant. 7. The learned counsel for the respondent per contra submits that the respondent is the father of the child Daksh and is the statutorily recognized guardian of the child under the law. He further submits that the respondent was falsely prosecuted by the appellant by making false allegations regarding committing the murder of his wife. It is stated that the respondent has been acquitted by the trial Court and has thereafter sought the custody of the child. It is submitted that during the intervening period when the respondent was in jail an arrangement had been made by his father with the appellant for looking after the welfare of the child which was without his consent and does not in any way dilute or wash away his statutory right as the natural guardian of his son. 8. He submits that on his acquittal, his criminal background is wiped out and, therefore, the allegations that he has a criminal background, is misplaced and misconceived and as every father, is a working father, the mere fact that he is working does not disqualify him from having the custody of his son. 9. It is submitted that the child Daksh being the son of the respondent, his interest lies in staying with him and there would be no better person than the father of the child to look after his future and his well-being. 9. It is submitted that the child Daksh being the son of the respondent, his interest lies in staying with him and there would be no better person than the father of the child to look after his future and his well-being. It is submitted that in such circumstances, it is in the interest of the child that he should at this stage itself be handed over to the respondent and that there is no infirmity in the impugned order warranting interference by this Court. 10. We have heard the learned counsel for the parties at length. 11. The fact, namely that the child was born to the respondent and his deceased wife Dimple on 16.11.2013 and that since his birth till 2.2.2015, he stayed in his father’s house itself, is admitted and undisputed. It is also an undisputed fact that thereafter, in view of the criminal complaint and case filed by the appellant, as all the family members of the respondent including the mother and sister of the respondent were taken into custody and as there was nobody to look after the child in his house at that particular point of time, the respondent’s father had handed over the responsibility of looking after the child to the appellant and had also paid him a sum of Rs.4,50,000/- for that purpose which fact is evident from the document that has been filed by the appellant himself alongwith the appeal. 12. It is also an undisputed fact that subsequently the respondent has been acquitted by the competent Court and that the respondent is the statutorily recognized guardian of the child. 13. It is also apparent from a perusal of the impugned order passed by the Court below that the Court below has taken all these aspects into consideration as well as the fact that the respondent being the natural father of the child, is capable of and has the right to the custody of the child as well as the right to bring up the child in his own family at his parental house, moreso as he does not suffer from any such kind of an insurmountable disqualification which would render him incapable of doing so or would result in any kind of adverse impact or affect on the child, has directed the child to be handed over to the respondent and for that purpose has granted three months time. 14. 14. It is also apparent that the impugned order was passed on 31.1.2018 and thereafter, this Court had directed maintenance of status quo in the appeal filed by the appellant in April, 2018 but had permitted the respondent to meet the child. In such circumstances, we are of the considered opinion that there is no perversity or infirmity in the impugned order warranting interference by this Court. We also do not find any merit in the appeal and therefore, the same is hereby dismissed. 15. It is further ordered that looking to the future of the child and the fact that it should be immediately secured as well as keeping in mind the fact that a lot of time has elapsed and it is in the interest of the child that he is restored in his parental house with his father at the earliest, we direct that the custody of the child shall be handed over to the respondent No.1 forthwith. 16. With a view to ensure compliance of the order passed by this Court today regarding handing over custody of the child Daksh to the respondent No.1 and with a view to prevent the eventuality of the appellant not doing so, it is ordered that a copy of the order passed today shall be sent to the Superintendent of Police and Collector, Itarsi, Mandsaur, Hoshangabad and Jabalpur. The Superintendent of Police and Collector, on receipt of the copy of this order, shall ensure that the order passed by this Court is complied with by making an enquiry in this regard and in case the appellant has not complied with the order, shall take immediate steps in that regard and hand over custody of the child to the respondent No.1 and send a report in this regard to this Court. The Superintendent of Police and Collector would also be at liberty to take all necessary steps for the implementation of the order passed today and in case so required, would also render necessary assistance to the respondent No.1 for securing admission in school, etc. of the child Daksh. 17. The appeal filed by the appellant is, accordingly, dismissed with the aforesaid directions.