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2025 DIGILAW 931 (TS)

XXXXXXXXXXXXXXXX v. XXXXXXXXXXXXXXXX

2025-07-17

B.R.MADHUSUDHAN RAO, MOUSHUMI BHATTACHARYA

body2025
ORDER : Moushumi Bhattacharya, J. The Family Court Appeal arises out of an order dated 09.02.2023 passed by the learned Principal Judge, Family Court- cum-Additional Chief Judge, City Civil Court, at Hyderabad (‘Trial Court’) in an Original Petition (O.P.No.287 of 2019) filed by the respondent for custody of the minor child of the parties and for appointment of the respondent as the sole guardian of the minor child. 2. The Trial Court allowed the petition filed by declaring the respondent herein (the petitioner in the O.P.), the father of the minor child, as the legal guardian of the minor child and held that the petitioner is entitled to permanent custody of the child till the child attains the age of majority. The appellants (the respondents in the O.P.) were directed to hand over the minor child to the petitioner within two months from the date of the order. 3. The appellant Nos.3 and 4 are the maternal grandparents and the appellant Nos.1 and 2 are the maternal aunt and uncle of the minor child. The Proceeding Sheet dated 27.06.2025 records the submission made by learned counsel appearing for the appellants that he is only representing the appellant Nos.3 and 4 i.e., the maternal grandparents of the minor child. 4. The appellants obtained interim suspension of the impugned order from a Co-ordinate Bench on 19.12.2023. The respondent filed an application for vacating the interim suspension which is pending before this Court. On 05.08.2024, the respondent (father of the child) was granted visitation rights on every Sunday from 11:00 A.M. to 12:00 P.M. 5. The respondent filed the O.P. under section 7, 10 and 25 of The Guardians and Wards Act, 1890 read with Explanation (g) to section 7(1) of The Family Courts Act, 1984. Explanation (g) to Section 7(1) of the 1984 Act relates to a suit/proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. Sections 7, 10 and 25 of the 1984 Act relate, inter alia, to orders for guardianship of a minor and custody of ward. 6. The respondent, in the O.P., states that he was married to the daughter of the appellant Nos.3 and 4 on 16.01.2015 as per Islamic Shariah. The minor child was born on 23.08.2017. The respondent’s wife developed health complications after delivery of the child and passed away on 16.01.2018. 6. The respondent, in the O.P., states that he was married to the daughter of the appellant Nos.3 and 4 on 16.01.2015 as per Islamic Shariah. The minor child was born on 23.08.2017. The respondent’s wife developed health complications after delivery of the child and passed away on 16.01.2018. The child was in the custody of the appellants after the death of the respondent’s wife. The respondent states that he tried to meet his son for eight months before filing of the O.P. but came to know that his son was given to the appellant Nos.1 and 2 in adoption without the respondent’s knowledge and consent. The respondent further states that the respondent was not in a position to look after his son after the sudden demise of his wife and had no option but to leave his son to the care of the appellants but the appellants changed their stand over time and prevented the respondent from meeting his son. The respondent complains that the respondent was assaulted and forced out of the appellant's house on 07.07.2018. The respondent accordingly prayed for custody of his son and for appointment as sole guardian of his son in the O.P. before the Trial Court. 7. The counters filed by all the four appellants deny that the minor child was ever in the custody of the appellants since the date of death of the respondent’s wife. Paragraphs 4 and 9 of the counter filed by the appellant Nos.1 and 2 (maternal aunt and uncle) reiterates that the minor child is not in their custody and hence the Family Court could not assume jurisdiction in the matter. The appellant Nos.3 and 4 (maternal grandparents) adopted the counter filed by the other two appellants and states that the O.P. filed by the respondent is not maintainable and that there is no relevant claim against the maternal grandparents. 8. The evidence brought before the Trial Court consists of the affidavits filed by the parties to the O.P. as well as the examination-in-chief/cross examination of the parties. The said documents are part of the records. 9. 8. The evidence brought before the Trial Court consists of the affidavits filed by the parties to the O.P. as well as the examination-in-chief/cross examination of the parties. The said documents are part of the records. 9. The respondent/father of the minor child stated in his affidavit that the respondent was not in a position to take care of his son due to the sudden demise of his wife and that the appellants, being the maternal relatives and grandparents, looked after his son during the period of crisis. The respondent was under the impression that the appellants had taken care of his son to help the respondent to tide over the crisis but subsequently found that the appellants were bent on depriving the respondent from seeing his son. This caused a great deal of mental agony to the respondent. In the cross examination, the respondent states that the respondent has not maintained his son since he was not allowed to see his son for four years. The respondent also states that he has not given any clothes and chocolates to his son by reason of the forced separation for his son. The cross examination of the maternal grandparents does not contain any material with regard to the custody of the minor child or disputing the contentions in the respondent’s O.P. The cross examination is primarily on the alleged harassment suffered by their daughter on account of the respondent. 10. Learned counsel appearing for the parties have placed the evidence on record. The material part of the evidence has been stated above. 11. The Trial Court framed two issues, namely, (i) whether the petitioner (the respondent in the Appeal and father of the minor child) is entitled to be declared as guardian of his minor son and (ii) whether the petitioner is entitled for permanent custody of his minor son. 12. The Trial Court noted that the minor child was aged five years two months as on the date of the impugned order i.e., 09.02.2023 and that it was undisputed that the respondent was prevented from meeting his son. The Trial Court found this to be evident from the respondent lodging a complaint with the Inspector of Police, Hussaini Alam Police Station on 06.09.2018 (Exhibit P.6). The Trial Court found this to be evident from the respondent lodging a complaint with the Inspector of Police, Hussaini Alam Police Station on 06.09.2018 (Exhibit P.6). The Trial Court held the appellants’ primary contention of the respondent not maintaining his son would lose relevance since the respondent was not shown the child for the past four years. The Trial Court found that there was no evidence on record to show that the respondent, as the natural guardian of his son, would not have the capacity to maintain his son particularly since the respondent was living with his mother and elder brother’s family. The Trial Court accordingly found that the respondent/father is competent to look after the welfare of his son and that the appellants have not pleaded that the respondent is incapable of maintaining his son or is incompetent to look after the welfare of his son. The Trial Court accordingly allowed the respondent’s O.P. for grant of permanent custody and guardianship of his son. 13. We have heard the respective submissions of the appellant Nos.2 and 3 (maternal grandparent of the minor child) and the respondent (father of the minor child). 14. As stated above, the appellants have not shown any evidence to doubt the competence of the respondent, the father of the minor child as the natural guardian of the minor child, to look after the needs and welfare of the minor child. There is no evidence on record to show that the respondent either has financial difficulties or any other vices which would have an adverse impact on the welfare of the minor child. In fact, the appellant Nos.1 and 2 (maternal aunt and uncle) in their counter before the Trial Court denied that the custody of the minor child was with them at any point of time. The appellant Nos.3 and 4 (maternal grandparents) adopted this stand in their counter before the Trial Court. This particular stand/contention is most curious since the appellants seek to have custody of the minor child and has contested the guardianship of the respondent. 15. The appellant Nos.3 and 4 (maternal grandparents) adopted this stand in their counter before the Trial Court. This particular stand/contention is most curious since the appellants seek to have custody of the minor child and has contested the guardianship of the respondent. 15. Further, the appellants’ primary contention that the respondent did not look after the needs of his son including giving him clothes and chocolates (curiously, chocolates is the recurring complaint), does not deserve any weightage since it is undisputed that the respondent was not allowed to meet his son for four years immediately preceding the impugned order. The appellants have not denied this fact in their counters, namely, that the respondent was deprived of interacting with his son or that the respondent was not forced out of the house when he tried to meet his son. 16. Mausami Moitra Ganguli Vs. Jayant Ganguli, (2008) 7 SCC 673 cited by the appellants in fact assists the case of the respondent. The Supreme Court in that decision held that there was nothing on record to suggest that the welfare of the child is in any way endangered in the hands of the father and that the stability and security of the child is an essential ingredient for the overall development of the child’s talent and personality. Harsha Tipirneni Vs. Smt.Pooja Tipirneni, 2021 (1) ALT 1 (TS) held that parents are entitled to the custody of the child and the child cannot be deprived of their love, affection and care. 17. We therefore do not find any factual error in the impugned order. The respondent is the natural guardian of the minor child and the material placed before us does not point to any incompetence, whether mental, financial or otherwise, to hold that the best interest of the child would be compromised if the child is reunited with his father. We must however confess that we did consider the option of calling the child to our chambers for an interaction to ascertain the wishes of the minor child. We however decided against it since the admitted facts would show that the minor child has been living with his maternal grandparents/ maternal relatives for more than six years. Hence, there could be a possibility of the child’s responses not being spontaneous. We however decided against it since the admitted facts would show that the minor child has been living with his maternal grandparents/ maternal relatives for more than six years. Hence, there could be a possibility of the child’s responses not being spontaneous. We also note that the respondent/father has complained that the visitation rights to the child allowed by an order of the Co-ordinate Bench of on 05.08.2024 on for one hour on Sunday has been impacted by the intrusive actions of the appellants. In essence, it is undisputed that the respondent has been deprived access to his son for the last six years. In these circumstances, any interaction with the child would not have been conducive to any meaningful conclusions. 18. We also note that despite the impugned order dated 09.02.2023 directing the appellants to hand over the custody of the minor child to the respondent within two months from the date of the order i.e., by April, 2023, the minor child continues to be with the appellants by reason of the interim suspension of the impugned order granted by the Co-ordinate Bench on 19.12.2023. 19. In our view, the above reasons are sufficient to dismiss the Appeal. We do not find any infirmity in the impugned order dated 09.02.2023. 20. FCA.No.58 of 2023 is accordingly dismissed. Miscellaneous applications, if any, stands closed. Interim order dated 19.12.2023 is vacated. There shall be no order as to costs.