Allahabad High Court
Vidyasagar vs Anil Kumar Pachori And 2 Others on 25 August, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:147326-DB
AFR
HIGH COURT OF JUDICATURE AT ALLAHABAD
FIRST APPEAL DEFECTIVE No. - 627 of 2025
Court No. - 39
HON'BLE ARINDAM SINHA, J.
HON'BLE PRASHANT KUMAR, J.
(Per Arindam Sinha, J.)
1. The First Appeal is up for final hearing and disposal. Mr. Deo Kaushik, learned advocate holding the brief appears on behalf of appellant, the maternal grandfather. Ms. Abhilasha Singh, learned advocate appears on behalf of respondent, the father. It is a custody battle for the boy, who at present is around four and a half years old. Unfortunately, his mother is no more. There is a criminal case pending against respondent on accusation of dowry death. He is out on bail.
2. Respondent had filed for custody. Ms. Singh submits, there was error in the petition carrying mention of section 12 in Guardians and Wards Act, 1890. The provision invoked is section 25. Reliance on incorrect provision of law cannot stand in way of getting the relief. She relies on judgment of the Supreme Court in J. Kumaradasan Nair vs. IRIC Sohan reported in (2009) 12 SCC 175.
3. Mr. Deo Kaushik submits, his client is aggrieved by final judgment dated 31st May, 2025 of the Family Court directing custody of the boy being given to respondent father. He submits, respondent stands charged, inter alia, for having caused dowry death of his client's daughter, when the boy was about one and half years old. Since then the boy has been in custody of his client and it is in his welfare such custody continues.
4. He relies on view taken by a learned single Judge of this Court in Reshu @ Nitya and others vs. State of U.P. and others reported in 2022 (150) All LR 112. He submits, it supports his client's case on similar facts and circumstances.
5. The appeal was earlier heard on 16th July, 2025, by a Bench in which one of us (Arindam Sinha,J.) was party. We reproduce two paragraphs from order made that day.
"We reproduce below paragraph 58 (Supreme Today print) from Reshu @ Nitya (supra).
"58. The aforementioned facts do not indicate that the custody of the minor with the respondent no.4 can in any manner be said to amount to an illegal and improper detention. The child from her infancy, when she was of a tender age, appears to be living with her maternal grandfather. This together with the fact that the father who is claiming custody is named as an accused in a criminal case relating to the death of the mother of the corpus, would also be a relevant factor. The other considerations which would have a material bearing would be the necessity of the child being provided loving and understanding care, guidance and a warm and compassionate relationship in a pleasant home, which are essential for the development to the child's character and personality."
Above view was taken in context of facts, where the father was accused in a criminal case. In Tejaswini Gaud (supra) the mother of the child was undergoing treatment and ultimately succumbed. Custody had come to be with the sister-appellant. The High Court had directed custody to be given to the father on taking view, the father was surviving natural parent and welfare of the girl was best served on she being with the surviving parent, instead of her aunt. The father in that case was not an accused in a pending criminal case."
The appeal was thereafter but earlier taken up by us on 11th August 2025. We reproduce below paragraph 1 from order dated 11th August 2025.
"Ms. Abhilasha Singh, learned advocate appears on behalf of respondents and submits, pursuant to observation made on last occasion, her client and on her behalf, there were attempts made at settlement but contact could not be established. Mr. Dev Kaushik, learned advocate holding the brief appears on behalf of appellant and on query submits, settlement is not possible.
6. English translation of, inter alia, impugned judgment has been filed by Mr. Kaushik, on affidavit of date with copy served. Perused the translation of impugned order. The Family Court found that appellant had taken away custody of the boy, when the mother died. Issue framed in that regard stood accordingly answered in favour of respondent. The Family Court went on to say that though the boy said he wanted to continue to be with his maternal grandfather, on the other hand his father and maternal grand parents also needed to be with him. Considering he had been in custody of said grandfather, welfare of the child was directing custody to be with respondent, the natural guardian. We reproduce below passage from a paragraph in impugned judgment.
"The child is about 4 years old and his maternal grandfather's relationship with his father and grandfather is not good at present. In such a situation, there is every possibility of negativity being filled in the mind of the child towards the father and grandfather and it is not natural for him to go to the grandparents or father himself. In such a situation, since the child is with the maternal grandfather, the natural guardian father applicant no. 2 cannot be deprived of his legal rights while the father is not incapable of taking custody of the child. There is no credible concrete evidence on the record that a father would act contrary to the interest and welfare of his child."
7. We agree with view taken by the Family Court. However, we deem it necessary to modify directions given in impugned judgment, for appellant to meet the boy once a week for two hours in respondent's residence, failing which at a neutral place. The modification is necessary because respondent cannot dispute that the boy has been well looked after since his mother died and till date. In the circumstances, the boy will spend every alternate weekend with his maternal grandfather. Respondent will drop him at his maternal grandfather's house on the Friday evening and collect him on following Sunday evening. We have made queries to ascertain the boy is presently studying in Bawanbari International School, Post Ekah, District Firozabad. On query we are told, respondent intends to shift him to another school being St. Paul's Public School, Awagarh, District Etah. On further query Ms. Singh submits on instructions from her client present in the Court, for two years from date his client will not cause transfer of the boy from his present school. We have required this concession because the boy is being removed from familiar to new circumstances of residence. Change from the school at this time, which is accessible from the father's house, is not in welfare of the child.
8. Impugned judgment is confirmed with above modification on visitation rights.
9. The appeal is disposed of. The decree be drawn up expeditiously.
August 25, 2025
Kushal
