Sanjay vs Sukwariya
2022 Latest Caselaw 7586 Chatt

                                    1


                                                                    NAFR

         HIGH COURT OF CHHATTISGARH, BILASPUR

                         FAM No. 197 of 2017

                                               Reserved on 23-11-2022

                                               Delivered on 15-12-2022

Sanjay son of Ran Sai, aged about 33 years, Caste Harijan, R/o.
Village Churcha Coliery, Distt. Korea (C.G.)

                                                 ---- Appellant/(Applicant)

                                 Versus

Sukwariya wife of Sanjay, aged about 30 years, R/o. Village
Dhodhibaraha, PS and Tahsil Baikunthpur, Distt. Korea (C.G.)

                                          ---- Respondent/(Non-applicant)



For Appellant                   : Mr. Syed Majid Ali, Adv.
For Respondent                  : Mr. Vaibhav A. Goverdhan, Adv.


               Hon'ble Shri Justice Goutam Bhaduri
               Hon'ble Shri Justice N.K. Chandravanshi
                          CAV Judgment

Per N.K. Chandravanshi, J.

1. This appeal has been preferred by the appellant against

order dated 24-7-2017 passed by the Family Court, Baikunthpur Distt.

Korea (CG) in Misc. Criminal Case No. 13/2016 (CIS No. 6/2017)

whereby application filed by the appellant/husband under Section 7 of

the Guardianship and Wards Act, 1890 (hereinafter referred to as 'the

Act, 1890') read with Section 6 of Hindu Minority and Guardianship Act,

1956 (hereinafter referred to as 'the Act, 1956'), for grant of custody of

his minor son, was dismissed.

2. Facts of the case, in brief, are that marriage of the

appellant/ husband was solemnized with respondent/wife on 7-5-2009.

They have been blessed with a son namely Ashish, who was aged

about 6 years at the time of filing of the application. It is alleged that

the respondent/wife lived with the appellant only for about 10 months,

thereafter, she left company of appellant and efforts made by the

appellant to bring her back went in vain and she is residing with her

parents at their village. It has been further pleaded that on an

application being filed by the respondent, earlier the husband was

giving Rs. 1,500/- per month for her maintenance, which was

subsequently increased to the tune of Rs. 1,700/- per month. Thus,

she is not having source of income to maintain herself and their son,

whereas the appellant is having government job and he is natural

father of the child. Hence, he can take better care for welfare of their

child in respect of his study, health and other needs of life, therefore,

the appellant has requested to give custody of their minor child Ashish

from respondent/wife.

3. In reply, the respondent/wife has accepted that she is

residing along with her child in her parental home at village

Dhodibahra, where she delivered their son Ashish, but she has been

compelled by the appellant to part him, as she was subjected to cruelty

on various counts by the appellant. After delivery of child, appellant has

never come to meet them, divorce proceeding is also going on

between them. Appellant has never taken care of them and when she

filed maintenance application, only thereafter, he is giving amount of

maintenance and only to escape from paying maintenance to them, he

has filed aforesaid application. She has further pleaded that she is

mother of the child, capable to maintain him and taking proper care of

him, therefore, the application filed by the appellant is liable to be

rejected.

4. In respect of his pleading, appellant examined himself as

P.W. 1, and Secretary of their social forum Sanjay Kumar Kurre as

P.W. 2. Respondent has examined herself as D.W. 1 and her father

Pati Narayan as D.W. 2.

5. Learned Family Court, after appreciating and evaluating

the evidence adduced by both the parties, dismissed the application

filed by the appellant after holding that welfare and betterment of child

is much more safe with his mother, as father was not found to be

responsible towards their child.

6. Learned counsel for the appellant would submit that at the

time of filing of application, age of child was about 6 years, thus he had

become a school going boy, but he is residing along with her mother at

village Dhodhibahra where school facility is not good and respondent

is not only an illiterate house lady, but also she has no source of

income to maintain her own and their son's livelihood, as she is

maintaining herself and the child only from the amount of maintenance,

given by the appellant, whereas the appellant is posted as Health

Worker (Male) in the health department and taking monthly salary.

Efforts made by the appellant to bring back the respondent and their

child have gone in vain, as not only the respondent refused to reside

with the appellant, but she also denied to send their child with the

appellant. Appellant lives at village Churcha, which is a municipal area

and he wants to get admitted his child in Central School or St. Joseph

School, Baikunthpur for his better study and better future, but these

aspects which have been proved by the appellant and his witness,

have not been properly considered by learned Family Court and only

on the basis of assumption, it has dismissed his application, therefore,

the impugned order is liable to be set aside by allowing this appeal and

custody of child may be given to the appellant.

7. Per contra, learned counsel for the respondent would

submit that due to physical and mental torture meted out to the

respondent by the appellant and his family members, she has been

compelled to live separately. Even when the child Ashish was in womb,

at that time also, appellant tried to abort his wife. The respondent

delivered child at her parental home, but appellant never came there

to see him, rather he had alleged that he is not his child. It is further

submitted that appellant has never taken care of respondent and their

son on any count and he has started giving maintenance to them only

after order of the Court. His such conduct shows that he is not a

responsible father and he has no affection with the child. He has filed

this application only after the order of maintenance was passed by the

Court, which has now been increased to the tune of Rs. 4,000/- per

month. Thereafter, he filed present application for custody of child only

to avoid giving maintenance to them. It is further submitted that the

impugned order does not suffer from any infirmity or illegality. Hence,

the appeal is liable to be dismissed.

8. We have heard learned counsel for the parties and

perused the impugned order, record of the Court below, and the

documents annexed with the appeal.

9. The statute which deals with the situation under

consideration, is the Guardians and Wards Act, 1890 and Section 4 of

the Act, 1890 defines minor as a person who has not attained the age

of majority. Guardian means a person having care of the person of a

minor or of his property, or of both his person and property. Ward is

defined as a minor for whose person or property or both, there is a

guardian.

10. Chapter II (Sections 5 to 19) relates to appointment and

declaration of guardians. Section 7 deals with `power of the Court to

make order as to guardianship' and reads as under:

"7. Power of the Court to make order as to guardianship.-(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made--

(a) appointing a guardian of his person or property, or both, or

(b) declaring a person to be such a guardian, the Court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

(3) Where a guardian has been appointed by will or

other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act."

11. Section 8 of the Act, 1890 enumerates the persons entitled

to apply for an order as to guardianship. Section 9 empowers the

Court having jurisdiction to entertain an application for guardianship.

Section 10 to 16 deal with procedure and powers of the Court. Section

17 is another material provision and is reproduced:-

"17. Matters to be considered by the Court in appointing guardian.-(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 Court 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.

(emphasis supplied)

12. Section 19 prohibits the Court from appointing guardians in

certain cases.

13. Chapter III (Sections 20 to 42) prescribes duties, rights

and liabilities of guardians.

14. The Hindu Minority and Guardianship Act, 1956 is another

equally important statute relating to minority and guardianship among

Hindus. Section 4 defines "minor" as a person who has not completed

the age of eighteen years. "Guardian" means a person having the care

of the person of a minor or of his property or of both his persons and

property, and inter alia includes a natural guardian. Section 2 of the Act

declares that the provisions of the Act shall be in addition to, and not in

derogation of 1890 Act.

15. Section 6 enacts as to who can be said to be a natural

guardian. It reads thus;

"6. Natural guardians of a Hindu Minor.

--The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are--

(a) in the case of a boy or an unmarried girl:- the father, and after him, the mother;

provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl:- the mother, and after her, the father.

(c) in the case of a married girl:- the husband:

Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section--

            (a)    if he has ceased to be a Hindu, or

            (b)    if he has completely and finally renounced the world

becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Explanation.--In this section, the expressions "father" and "mother" do not include a step-father and a step-mother."

16. Section 8 enumerates powers of a natural guardian.

Section 13 is an extremely important provision and deals with welfare

of a minor. The same may be quoted in extenso;

            "13.    Welfare     of   minor    to    be    paramount

         consideration.

         (1)        In the appointment or declaration of any

person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.

(2) No, person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.

(emphasis supplied)

17. Section 26 of the Hindu Marriage Act, 1955 provides for

custody of children and declares that in any proceeding under the said

Act, the Court could make, from time to time, such interim orders as it

might deem just and proper with respect to custody, maintenance and

education of minor children, consistently with their wishes, wherever

possible.

18. The principles in relation to the custody of a minor child

are well settled. In determining the question as to who should be given

custody of a minor child, the paramount consideration is the `welfare of

the child' and not rights of the parents under a statute for the time

being in force.

19. The Supreme Court in the case of Nil Ratan Kundu and

another Versus Abhijit Kundu1 at para 52 has observed that in

deciding a difficult and complex question as to the custody of a minor,

a Court of law should keep in mind the relevant statutes and the rights

flowing therefrom. Further the Court held that but such cases cannot

be decided solely by interpreting legal provisions. It further observed

that it is a human problem and is required to be solved with human

touch. The Court at para 52 has held thus:-

"52.......... A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we

1 (2008) 9 SCC 413

may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor."

20. Further the Supreme Court in the case of Tejaswini Gaud

and others Vs. Shekhar Jagdish Prasad Tewari and others2 has

observed that the welfare of the minor child is the paramount

consideration. The Court in para 26 & 27 reiterated the law laid down

in the case of Nil Ratan Kundu and another Versus Abhijit Kundu3 .

It further referred to the case of Goverdhan Lal v. Gajendra Kumar4

and has observed thus in para 26:-

"26. The court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child. The paramount consideration for the court ought to be child interest and welfare of the child."

21. It is well settled legal proposition that while determining the

question as to which parent the care and control of a child should be

given, the paramount consideration remains the welfare and interest of

the child and not the rights of the parents under the statute. Such an

issue is required to be determined in the background of the relevant

2 (2019) 7 SCC 42 3 (2008) 9 SCC 413 4 2001 SCC OnLine Raj 177

facts and circumstances and each case has to be decided on its own

facts as the application of doctrine of stare decisis remains irrelevant

insofar as the factual aspects of the case are concerned. While

considering the welfare of the child, the "moral and ethical welfare of

the child must also weigh with the court as well as his physical well-

being". The child cannot be treated as a property or a commodity and,

therefore, such issues have to be handled by the court with care and

caution with love, affection and sentiments applying human touch to

the problem. Though, the provisions of the special statutes which

govern the rights of the parents or guardians may be taken into

consideration, there is nothing which can stand in the way of the court

exercising its parens patriae jurisdiction arising in such cases.

22. This proposition has been laid down by the Supreme Court

in case of Gaurav Nagpal v. Sumedha Nagpal 5, which has been

further reiterated by the Supreme Court in the subsequent case law in

Ashish Ranjan v. Anupma Tandon and another6

23. Taking into consideration aforesaid legal proposition, now

we see in the instant case as to who is fit and proper to be a guardian

of minor child Ashish in the facts situation of the instant case.

24. It is not in dispute that marriage between the parties was

held on 7-5-2009 and after about 10 months/1 year, respondent left

company of the appellant. It is also not in dispute that having blessed

with a child Ashish, who was aged about 6 years at the time of filing of

application for his custody, respondent is residing along with her

5 (2009) 1 SCC 42 6 (2010) 14 SCC 274

mother in her parental home at village Dhodibahra. It is also not in

dispute that the appellant is in a government job i.e. Health Worker

(Male) in the Department of Health.

25. Appellant Sanjay (P.W. 1) and his witness Sanjay Kumar

Kurre (P.W. 2) have stated in their deposition that appellant lives at

village Churcha which is municipal area, he is in government job and

has income. He has also stated that he wants to get admitted their

child in Central School or St. Joseph School, Baikunthpur and only on

that basis, he has claimed custody of child.

26. As per evidence of respondent Sukwaria (D.W. 1) and her

father Pati Narayan (D.W. 2), when child Ashish was in her mother's

womb, at that time, appellant had tried to abort her by injecting

injection saying that it was not his child. They have also stated that

after delivery of child, the appellant has never come to meet or see

him, these facts remained un-rebutted in their cross-examination.

Although, appellant has stated in his deposition that he tried to talk

with the child when he came with respondent/ mother at the time of

hearing in the Court, but respondent did not facilitate and she abused

him and threatened to implicate him in a case, but he has admitted in

his cross-examination that he has never made any application before

the Court to meet the child. Thus, it is apparent from evidence that

appellant neither went to meet or to see his child even after the

delivery nor he has made any effort to talk with the child, rather, he

had tried to abort his wife when the child was in womb. Thus, facts do

not show any affection or attachment of appellant with child Ashish.

27. Although appellant is in government job and is getting

salary and also he resides in municipal area, and on the other hand,

respondent is not having any source of income and they are getting

maintenance from the appellant, but her father D.W. 2 Pati Narayan

(D.W. 2) has specifically stated that being father, they are taking care

of respondent and her child, respondent has also stated that Ashish is

studying in KG-II in Holy Palace English Medium School, Salka.

Hence, considering the conduct and behaviour of appellant towards

child and more particularly, the statement of respondent and her father

that the appellant had tried to abort his wife by saying that it is not his

child and also considering the fact that earlier he has never taken care

of them and such application is filed only after passing of order of

maintenance in favour of the respondent and her child, which has now

been increased to Rs. 4,000/- per month, as has been stated by D.W.

2 Pati Narayan, it is not found proved that appellant has any care,

affection or attachment towards his child Ashish.

28. Looking to the aforesaid irresponsible behaviour and

conduct of appellant, child Ashish cannot be given in his custody only

because he is natural father and he is doing government job. As has

been stated in preceding paragraphs that in a case of custody of child,

Court is not bound by the mere legal right of the parents or guardian,

rather, welfare of minor child is paramount consideration. As has been

observed in the instant case, the appellant has never been found

affectionate or responsible towards his child Ashish. Therefore, in such

a situation, it is not found proper to give custody of child Ashish to

appellant.

29. In view of above discussion, we find that the order

impugned passed by the Family Court does not suffer from any

infirmity or illegality.

30. In the case of Ritika Sharan Vs. Sujoy Ghosh7, their

Lordships of the Supreme Court have held that a balance has to be

drawn so as to ensure that in a situation where the parents are in a

conflict, the child has a sense of security. The interests of the child are

best served by ensuring that both the parents have a presence in

his/her upbringing.

31. Therefore, following the principles laid down in the case of

Yashita Sahu Vs. State of Rajasthan and others8 and in the case of

Ritika Sharan (supra), we hereby order to grant visitation right to

appellant father. It is directed that on every Sunday, the appellant may

meet the child for 4 hours i.e. from 12.00 noon to 4.00 pm at the

respondent's place or at the place agreed to between the parties,

subject to condition that if the child wants to meet his father.

32. With the aforesaid observations & directions, the appeal

stands disposed of.

                         Sd/-                                          Sd/-
                   (Goutam Bhaduri)                          (N.K. Chandravanshi)
                      Judge                                         Judge



Pathak/-

           7     2020 SCC OnLine SC 878
           8 2020(3) SCC 67