Gauhati High Court
Pintu Nandi vs Dipshikha Sonowal on 26 September, 2022
Page No.# 1/6
GAHC010195392022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/105/2022
PINTU NANDI
SON OF LATE GOPAL NANDI,
RESIDENT OF WARD NO. 4, DHEMAJI,
POLICE STATION- DHEMAJI,
DISTRICT- DHEMAJI, ASSAM.
VERSUS
DIPSHIKHA SONOWAL
DAUGHTER OF LATE BHABEN SONOWAL,
RESIDENT OF WARD NO. 6, STATION ROAD,
DHEMAJI,
POST OFFICE AND POLICE STATION- DHEMAJI,
DISTRICT- DHEMAJI, ASSAM. PIN- 787058.
Advocate for the Petitioner : MR. P HAZARIKA
Advocate for the Respondent :
:: BEFORE ::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
O R D E R
26.09.2022
Heard the learned counsel Mr. P. Hazarika appearing for the petitioner.
2. This is an application under Article 227 of the Constitution of India
Page No.# 2/6
whereby the order dated 25.08.2022 passed by the District Judge,
Dhemaji in Misc(J) Case No.3 of 2022 arising out of Title Suit (D) No.10 of
2020 is under challenge.
3. The petitioner married the respondent on 28.06.2022. The couple is
blessed with a child. Thereafter, marital dispute started to arise. They
jointly approached the appropriate court for divorce on mutual consent.
4. In the meantime, they had a written agreement regarding their child
who was 7 years old at that time. They agreed that for the first four days
of a week, the child will stay with the respondent and on the next three
days, he will be with the petitioner.
5. Divorce was granted to the couple and after that, the respondent
remarried another person.
6. Now, the respondent alleged that the petitioner has violated their
agreement relating to the said child. He allegedly stopped sending the
child to the respondent's house. Alleging this fact, the respondent filed
an application before the court below.
7. The court of the District Judge held that both sides are bound by
their agreement and they are to comply with the terms of the
agreement.
8. The learned counsel Mr. Hazarika submits that the child is now more
than five years old and after remarriage of his mother, he is reluctant to
be in the company of his mother.
9. Mr. Hazarika has relied upon the provision of law as laid down in
Section 6 of the Hindu Minority and Guardianship Act, 1956.
Page No.# 3/6
10. The Section 6 of the Hindu Minority and Guardianship Act, 1956
reads as under:
"6. Natural guardians of a Hindu minor.--The natural guardian 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 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 by becoming a
hermit (vanaprastha) or an ascetic (yati or sanyasi). "
Explanation.--In this section, the expression "father" and "mother" do not
include a step-father and a step-mother."
11. Thereby, Mr. Hazarika has claimed that since the child is a male child
and therefore the present petitioner, being the father of the child is the
natural guardian. Mr. Hazarika further claimed that by an agreement
between the parties they cannot go beyond one. According to the
learned counsel, the agreement between the parties, relating to the
child, itself is illegal.
12. In order to buttress his point regarding custody of the child, the
Page No.# 4/6
learned counsel Mr. Hazarika has relied upon a decision of the Supreme
Court rendered in Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471.
Paragraph 12 of the said judgment reads as under:
"12. The law relating to custody of minors has received an exhaustive
consideration of this Court in a series of pronouncements. In Gaurav
Nagpal v. Sumedha Nagpal [(2009) 1 SCC 42 : (2009) 1 SCC (Civ) 1] the
principles of English and American law in this regard were considered by
this Court to hold that the legal position in India is not in any way
different. Noticing the judgment of the Bombay High Court
in Saraswatibai Shripad Ved v. Shripad Vasanji Ved [AIR 1941 Bom
103] , Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1 SCC 840]
and Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka [(1982) 2 SCC
544 : 1982 SCC (Cri) 505] this Court eventually concluded in paras 50 and
51 that : (Gaurav Nagpal case [(2009) 1 SCC 42 : (2009) 1 SCC (Civ) 1] ,
SCC p. 57)
"50. [T]hat when the court is confronted with conflicting demands made
by the parents, each time it has to justify the demands. The court has not
only to look at the issue on legalistic basis, in such matters human angles
are relevant for deciding those issues. The court then does not give
emphasis on what the parties say, it has to exercise a jurisdiction which is
aimed at the welfare of the minor. As observed recently in Mausami
Moitra Ganguli case [Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7
SCC 673] , the court has to give due weightage to the child's ordinary
contentment, health, education, intellectual development and
favourable surroundings but over and above physical comforts, the
moral and ethical values have also to be noted. They are equal if not
Page No.# 5/6
more important than the others.
51. The word 'welfare' used in Section 13 of the Act has to be construed
literally and must be taken in its widest sense. The moral and ethical
welfare of the child must also weigh with the court as well as its physical
well-being. Though the provisions of the special statutes which govern the
rights of the parents and 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."
13. I have given my anxious considerations to the submissions made by
the learned counsel for the petitioner.
14. Section 13 of the aforesaid Act of 1956 lays down that whenever a
guardian of the Hindu minor is appointed by court, the paramount
consideration shall be the welfare of the child. In some other statutes also
this fact has been mentioned.
15. Whenever a court appoints a guardian of a minor child, the court
must consider the welfare of the child. Here in this case, both sides have
entered into an agreement as if the child is an object. He is a human
being and moreover he is a minor unable to take care of himself.
16. This Court is constrained to hold that the learned court below also
treated the child to be a lifeless object. The court below has miserably
failed to consider matter in a lawful way. The law relating to the custody
of a child is well settled. The paramount consideration shall be the
welfare of the child.
17. Now, the child is more than five years old and therefore, his wish is
also important. He should have been questioned by the court regarding
Page No.# 6/6
his choice. The custody of a child cannot be agreed upon by an
agreement.
18. For the aforesaid reasons, the impugned order 25.08.2022 passed by
the District Judge, Dhemaji in Misc(J) Case No.3 of 2022 arising out of Title
Suit (D) No.10 of 2020 is set aside.
19. The trial court is directed to personally interview the child to know
what his wish is. Since he is more than five years old, his wish must be
given importance.
20. After interviewing the child and after knowing his wish, the trial court
shall pass a fresh order of custody of the child. The court shall keep in
mind that the welfare of the child must be a paramount importance.
With the aforesaid directions, the revision petition is disposed of at the
motion stage.
JUDGE
Comparing Assistant
