Pappu vs Smt. Kaushal And Another
2012 Latest Caselaw 4174 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 

 
Case :- FIRST APPEAL No. - 46 of 2010
 

 
Petitioner :- Pappu
 
Respondent :- Smt. Kaushal And Another
 
Petitioner Counsel :- Santosh Kumar Srivastava,Smt. Alka Srivastava
 
Respondent Counsel :- Sushil Kumar Shukla
 

 
Hon'ble Dinesh Gupta,J.

1.This first appeal is preferred against the judgement and decree dated 08.01.2010 passed by Additional District Judge, Baghpat in Misc. Case No. 3/2001 under section 25 of Guardians and Wards Act, 1890.

2.The brief facts which give rise to this appeal are that the appellant preferred an application under section 25 of Guardians and Wards Act, 1890 for having custody of his two minor daughters namely Km. Monika and Km. Komal.

3.As per the averments made in the application, the appellant was married to the opposite party no. 2 Smt. Kaushal with all Hindu rites on 22.05.1991 and out of the said wedlock two daughters were born. The elder daughter Monika was born on 31.08.1993 and the younger daughter Km. Komal was born on 25.10.1994. Thereafter, the opposite party no. 1 suddenly left the house of the appellant and went to her father (opposite party no. 2) and thereafter she performed second marriage with one Mehak Singh on 06.10.1998 and handed over his elder daughter Km. Monika to opposite party no. 2 Sukhbir and his younger daughter Komal is still living with opposite party no. 1 at the house of Mehak Singh. The opposite party no. 1 is not taking care of her two daughters nor she is taking care of education of her two children. In fact the applicant is the natural guardian of both the daughters and he so many times requested opposite party no. 1 to hand over the custody of his two daughters to him but the opposite party no. 1 refused. Hence, he moved the application under section 25 Guardians and Wards Act, 1890.

4.The opposite party no. 1 preferred objections and in the said objections, the opposite party no. 1 admitted her marriage with the appellant. However, she refuted other allegations and alleged that soon after marriage the appellant and his family members harassed and ill treated her and also demanded dowry and when the parents of the opposite party no. 1 could not fulfil the demands of the appellant, the appellant and his other family members turned out the opposite party no. 1 from their house at the time when she was pregnant and thereafter, she came to her father's house where she gave birth to her second daughter. The opposite party no. 2 further alleged that she is taking care of both the daughters herself and with the help of her father. The applicant never maintained his two daughters, on the contrary, misbehaved with them. The opposite party no. 2 is taking care of her daughters and is giving proper education and the daughters also are not agreed to go with their father and they want to remain with the opposite party no. 1.

5.The applicant in support of his application filed some documents regarding the second marriage of the opposite party no. 1 and also examined himself and one witness Ashok while from the side of the opposite party, the opposite party examined her minor daughters namely Km. Monika and Km. Komal as witnesses. After hearing the rival submissions of both the parties, the learned Additional District Judge dismissed the application of the appellant vide order dated 08.01.2010.

6.Feeling aggrieved, the appellant filed this appeal before this Court.

7.Counter and rejoinder affidavits have been exchanged between the parties.

8.Heard rival submissions made by the parties.

9.Learned counsel for the appellant submitted :-

That admittedly the marriage of the plaintiff-appellant was solemnized with the defendant-respondent and two female children were born out of the said wedlock and the appellant being the real father of these two female children is entitled to take custody of both the daughters. Since respondent no. 1 has remarried with one Mehak Singh without taking divorce from the appellant, hence welfare of the daughters can not be presumed to be protected in the house of Mehak Singh. The finding of the lower court is erroneous in this regard;

That there was specific allegation regarding the marriage of respondent no. 1 with one Mehak Singh. The learned court below totally ignored this fact and failed to adjudicate the said fact;

That the evidence given by the respondent itself clearly proves that elder daughter Km. Monika is living and is taking care by the respondent no. 2, who is her maternal grandfather and is not being care by her mother. Therefore, appellant is entitled to take custody of her child in comparison to the maternal grandfather;

That the respondent no. 1 has clearly failed to show that she has any independent source of living/income so as to maintain and take care the welfare of her daughters. She is an illiterate lady in comparison to the appellant, who has sufficient source of income and is in a better position to look after the welfare of the children. The learned court has wrongly dismissed his application without considering these facts;

That the Court has failed to consider this fact that both the minor children are under the influence of her mother and as such their statement has been obtained under such influence and has no legal sanctity. The court has to consider the crucial fact, which is mandatory for deciding the custody and welfare of the children and;

That the trial court has wrongly rejected his application, which is liable to be allowed and this appeal be allowed and the custody of both the children be given to the appellant.

10.Learned counsel for the respondents submitted:-

That the trial court after considering all the facts and circumstances and considering the welfare of the minors has rightly dismissed the application of the appellant;

That even according to the allegations made in the application, the elder daughter Km. Monika was born on 31.08.1993 and at present, she is major and therefore, there is no question of giving her into the custody of the appellant and so far as second daughter Km. Komal is concerned, she was born on 25.10.1994 and at present, she is seventeen years and ten months old and she is almost major and is of the age of understanding and both the daughters being categorical in their statement denied to go with the appellant and they have also stated that they are being taken care of by their mother and maternal grandfather;

That the lower court has committed no illegality or irregularity in dismissing the application and;

The appeal is liable to be dismissed.

11.I am unable to accept the contentions raised by the learned counsel for the appellant. First of all, without touching the merit admittedly, the elder daughter has already become major and therefore, so far as her custody is concerned, the appeal has become infructuous. So far as second daughter is concerned, she is also attaining the age of majority and if it is presumed that she is minor, the appellant can not take benefit of the same since the second daughter is of the age of understanding and she is in a position to understand her welfare and she has categorically refused to go with the appellant.

12.So far as the appellant is concerned, according to the appellant the wife along with her two children left the house of the appellant in 1997 and now fifteen years have lapsed and admittedly, the appellant has not taken care of his two daughters nor has sent any money for their education or maintenance.

13.Since the appellant has filed this appeal under section 25 of Guardians and Wards Act, according to the definition of 4 (1) of the Act, 'Minor' means the person, who under the provisions of the Indian Majority Act, 1875 is to be deemed not to have attained his majority and under the Indian Majority Act 1875, age of majority of a person is to be subject to the provisions of personal laws. The Hindu Majority and Guardianship Act, 1956 and section 4(a) defines a "minor" as "a person who has not completed the age of eighteen years'. Thus the elder daughter Km. Monika has attained the age of majority and the application so far as her custody is concerned has become infructuous.

14.While deciding the application under section 25, the Court has to consider the matters appointing guardian enumerated in Section 17 of the Guardians and Wards Act 1890. Section 17 of the Act is as follows:-

(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Courts shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.

* * * * *

(5) The Court shall not appoint or declare any person to be a guardian against his will.

15. Different Courts considered Section 17 of the Act and it is considered in so many cases and there is a consistent view that in deciding the custody of the minor the welfare of the minor is the prime consideration. The welfare of the child is not to be measured by money alone nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare must be considered as well as its physical well-being. Nor can be ties of affection be disregarded. When all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare. The Children Act, 1989 provides a list of relevant factors which the court must consider before making any order in respect of child so that there may be a systematic approach in taking decisions concerning children, namely (a) the ascertainable wishes and feelings of the child concerned considered in the light of his age and understanding; (b) his physical, emotional and educational needs; (c) the likely effect on him of any change in the circumstances; (d) his age, sex, background and any characteristics of his which the court considered relevant; (e) any harm which he has suffered or is at risk of suffering; (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; (g) the range of powers available to the court under this Act. This list may not be considered to be exhaustive as each case depends on its own facts. Thus on reading this list, the main question before the court should be - What order could be passed for securing the welfare of the minors? With whom will they be happy: Who is most likely to contribute to their well-being and look after their health and comfort? The interest, well-being, health, education and happiness of the minor ought to be the main and paramount consideration for the Court in selecting the guardian.

16.So far as the allegation of the appellant that the opposite party no. 1 has remarried and is dis-entitled to keep the daughters is concerned, the Courts held in different cases that simply remarriage of a wife does not dis-entitle her to keep custody of her children.

17.Section 17(3) clearly provides that if minor is old enough to form an intelligent preference, the Court may consider that preference. In present case, both the daughters are old enough and they have clearly stated in their statement that they prefer their mother in comparison to their father.

18.In the case of Gangabai Vs. Bherulal AIR 1976 Raj 153, the facts of which case are similar to the present case, there was a contest between the father, natural guardian of the minor and the minor's maternal grandfather and the mother who were having the custody of the child. There, the father applied for the custody of the minor who, however, expressed his reluctance to go back to the father and in the custody of his mother and another guardian, he was progressing well in study. The Court held that mother and maternal grand father's custody was conducive to the best welfare of the child although the father was ready to keep the boy in a hostel and defray his hostel expenses and the child was allowed to remain in the custody of the mother and the maternal grandfather although the father was the most natural guardian. The present facts of the case are also similar to that case.

19.Considering all the facts and circumstances and the order passed by the learned Court below, I am of the opinion that there is no illegality in the order passed by the learned Additional District Judge. The learned District Judge has clearly taken care of the welfare of the minor daughters who are living with their mother, which is a prime consideration for deciding the custody of their daughters. The appeal has no merits and is liable to be dismissed.

20.Accordingly, the appeal is dismissed. No order as to costs.

Order Date :- 14.09.2012

yachna