Jharkhand High Court
Anwar Hussain vs Mehrun Nisha on 24 November, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 9 of 2019
Anwar Hussain --- --- Appellant
Versus
1. Mehrun Nisha
2. Tanwair Alam
3. Jahangir Alam
4. Munir Alam --- --- Respondents
With
First Appeal No. 38 of 2020
1. Suhail Khan @ Md. Suhail
2. Anwar Hussain
3. Boby Khan @ Tarannum Parween
4. Sinu Khan @ Sehar Afroz
5. Minu Khan @ Imrana Tabassum
6. Saiddin @ Rajan --- --- Appellants
Versus
Mehrun Nisha --- --- Respondent
---
CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh
Hon'ble Mrs. Justice Anubha Rawat Choudhary
Through video conferencing
---
For the Appellants : Mr. Naiyar Eqbal, Adv.
For the Respondents : Mr. Manoj Kr. Choubey, Adv.
---
13/24.11.2021 Both these appeals are by the appellant who is paternal
grandfather of the minor child Md. Wafi for whose custody the paternal
grandfather and maternal grandmother i.e. respondent in both the appeals are
fighting.
First Appeal No.9/2019 arose on account of dismissal of the
Guardianship Misc. Case No.5/2014 preferred by the paternal grandfather by
the learned Principal Judge, Family Court, Palamau at Daltonganj. The Suit
was instituted under Sections 7 and 17 of the Guardians and Wards Act, 1890.
First Appeal No.9/2019 was preferred with a delay of 70 days, for
condonation of which I.A. No.6921/2019 has been filed.
First Appeal No.38/2020 arises out of the judgment dated 5 th
October 2018 i.e. of the same day in Original Suit No.4/2015 whereby the
learned Principal Judge, Family Court, Palamau at Daltonganj allowed the
Suit preferred by the maternal grandmother/respondent herein seeking a
declaration and appointment as the guardian of the same minor boy Md. Wafi,
her grandson under Section 7 of the Guardians and Wards Act, 1890. This
appeal, however, was preferred by the aggrieved paternal
grandfather/appellant with a delay of 487 days. I.A. No.4161 of 2020 has
been preferred for condonation of delay taking a ground that the outcome of
the Original Suit No.4/2015 was not known to the appellant and only at the
time of arguments in F.A. No.9/2019 at instance of the respondent's counsel,
he came to know about it. Thereafter he obtained the certified copy on 14th
February 2020 and the appeal was preferred. Appellant Anwar Hussain/
paternal grandfather has taken a plea of old age and several ailments, as a
result of which he could not contact his lawyer and obtain the necessary
information within time to challenge the judgment. He says that the mistake
was bonafide and not deliberate.
Learned counsel for the appellant submits that the delay may be
condoned in both the appeals since the issue relates to custody of a minor
child.
Learned counsel for the respondent maternal grandmother has
strongly opposed the prayer. He has filed a reply in F.A. No.38/2020 to the
I.A. No.4161/2020 asserting that the plea of old age and illness is not tenable
on facts. Both the judgments impugned in the respective appeals were
delivered on the same date and in the case of the same parties: one preferred
by the paternal grandfather (F.A. No.9/2019) and the other by the maternal
grandmother (F.A. No.38/2020). There were other respondents in the Original
Suit No.4/2015 who have also been added as parties/appellants and that plea
of old age and illness is not available to them. Therefore, F.A. No.38/2020
may be dismissed on the point of delay. However, he does not have serious
opposition to the prayer for condonation of delay in F.A. No.9/2019
considering the less delay of 70 days only.
We have considered the submissions of learned counsel for the
parties, taken note of the conspicuous facts relating to both the first appeals
for the purposes of consideration of the prayer for condonation of delay.
F.A. No.9/2019 suffers from a delay of 70 days which the Court
is inclined to condone taking into account that the issue involves welfare of
the child. But if F.A. No.38/2020 is dismissed only on the point of delay of
487 days, a piquant situation arises. The judgment rendered in Guardianship
Misc. Case No.5/2014 rejecting the prayer for appointment of paternal
Grandfather as a guardian of the minor boy, would be in jeopardy in appeal.
In such an event either of the outcome can be possible upon adjudication
finally. However, the declaration of the maternal grandmother as
a guardian by the judgment of the same date 5 th October 2018 in Original
Suit No.4/2015 shall attain finality and the exercise to adjudicate the question
of custody in F.A. No.9/2019 would be a futility. The contention of learned
counsel for the respondent in opposing the prayer for condonation of delay in
F.A. No.38/2020 though has same force, but considering the issue of the well-
being of the minor child in perspective, it would be proper to entertain both
the appeals on merits by condoning the delay in the interest of justice.
Therefore, keeping into mind the larger interest of the well-being
of the child for whose custody the paternal grandfather and the maternal
grandmother are fighting, it would be desirable that both the appeals be heard
on merits otherwise adjudication of one of the appeals i.e., F.A. No. 9 of 2019
and rejection of the other appeal i.e., F.A. No. 38 of 2020 on the grounds of
delay may result in conflicting judgments on the same issue. Therefore, delay
in filing in both the appeals are condoned. I.A. Nos.6921/2019 and 4161/2020
in respective appeals seeking condonation of delay are accordingly allowed.
Admit.
Call for the lower court records from the learned court of
Principal Judge, Family Court, Palamau at Daltonganj in connection with
Guardian Misc. Case No.5/2014 and Original Suit No.4/2015.
(Aparesh Kumar Singh, J)
(Anubha Rawat Choudhary, J)
Shamim/
