Madhya Pradesh High Court
Umesh Kaithwas vs Rajendra Borasi on 30 May, 2024
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 30th OF MAY, 2024
MISC. PETITION No. 355 of 2024
BETWEEN:-
UMESH KAITHWAS S/O SHRI SHAMLAL
KAITHWAS, AGED ABOUT 32 YEARS,
OCCUPATION: PRIVATE JOB 508, VINOBA
NAGAR INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ABHINAV MALHOTRA -ADVOCATE)
AND
RAJENDRA BORASI, AGED ABOUT 59 YEARS,
OCCUPATION: DRIVER R/O HOUSING BOARD
1. COLONY, BADNAGAR, DISTRICT UJJAIN
(MADHYA PRADESH)
SMT. SEEMA BORASI W/O SHRI RAJENDRA
BORASI, AGED ABOUT 56 YEARS, OCCUPATION:
2.
HOUSEWIFE R/O HOUSING BOARD COLONY,
BADNAGAR, DIST. UJJAIN (MADHYA PRADESH)
...RESPONDENTS
(BY SHRI SHUBHAM DHOLPURE - ADVOCATE)
Whether approved for reporting : YES
-----------------------------------------------------------------------------------------
This petition coming on for admission this day, the court passed the
following:
ORDER
1. Heard on IA No.4416/2024, which is an application for taking
documents on record.
2. Documents may be relevant for proper adjudication of this petition,
therefore, IA is allowed and the documents are taken on record.
3. This miscellaneous petition under Article 227 of the Constitution
of India has been preferred by the petitioner being aggrieved by the
impugned order dated 19.12.2023 passed in MJC GW/1/2023 by the
District Judge, Badnagar, District Ujjain.
4. Brief facts of the case are that petitioner and his wife (Late
Chanchal Kaithwas) belongs to the Hindu Religion and their marriage
was solemnized on 23.5.2019 at Badnagar as per the Hindu rites and
rituals and after the marriage they blessed with a son Nirbhay who has
been born on 5.12.2021. Now he is about 2 years old. Unfortunately on
26.11.2022 petitioner's wife Chanchal has been died.
5. Learned counsel for the petitioner contended that now the minor
child Nirbhay is living with the respondents who are maternal grand-
father & maternal grand-mother of Nirbhay. Petitioner being the natural
guardian wishes to have the custody of his child to ensure his
wellbeing, health, education and lifestyle, which is very crucial for his
future and life, but the respondents denied to get back the custody of his
son Nirbhay. Petitioner has made complaints against the respondents to
the several police authorities, but no action has been taken. Then he
preferred an application under Section 10 of the Guardians and Wards
Act, 1890 (in short "Act of 1890") before the trial court, but after
hearing both the parties, trial Court has dismissed the application. The
impugned order passed by the court below is against the law and facts.
Petitioner has a good job and he earns about Rs.20,000/- per month. He
has sufficient bank balance and owns two houses. He is now residing in
metro-city Indore. On the contrary respondents No.1 & 2 are illiterate
old aged labour and they are living in the village. Their financial and
social status is not sufficient enough to match the growing requirement
of minor with passage of time and their behaviour towards the
petitioner is extremely cruel. Hence, he prays that the impugned order
be set aside and the interim custody of his minor child Nirbhay be
granted to the petitioner.
6. Per contra, learned counsel for the respondents opposes the prayer
and prays for its rejection by supporting the impugned order passed by
the trial Court.
7. Counsel for both the parties heard at length and perused the
record.
8. Relevant provisions of Hindu Minority & Guardianship Act, 1956
(hereinafter shall be referred as "Act of 1956") are also to be taken into
consideration. As per Section 2 of Act of 1956, the provisions of this
Act shall be in addition to, and not, save asexpressly provided, in
derogation of, the Guardian and Wards Act, 1890. Section 6 of the Act
of 1956 talks about Natural Guardians of a Hindu Minor. Same is
reiterated as under:-
"6. Natural guardians of a Hindu minor.- The natural
guardian of a Hindu minor, in respect of the minor‟s person 5
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 by becoming a hermit (vanaprastha) or an ascetic (yati
or sanyasi)."
9. If the provisions of Act of 1890 and Act of 1956 are seen in
juxtaposition then the conclusion appears is that the welfare of minor is
paramount consideration while considering the interim custody, in
appointment or declaration of a person as guardian of Hindu minor by a
Court. Section 13 of Act of 1956 is reproduced for ready reference:-
"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 law
relating to guardianship in marriage among Hindus, if the
Court is of the opinion that his or her guardianship will not be
for the welfare of the minor."
10. The Bombay High Court in the case of Amol Ramesh Pawar Vs.
The State of Maharashtra reported in 2014 SCC OnLine Bom 280
observed as under:-
"9. The Petitioner being the father of the child is the
natural guardian. The Petitioner was prosecuted for an offence
punishable under Section 498-A and 302 of the Indian Penal
Code, 1860. The Petitioner has been acquitted of the said
offence by the judgment of the Additional Sessions Judge,
Satara in Sessions Case No.120 of 2012 by judgment dated 26
April 2013. Since the judgment is of the year 2013 and
practically 22 months have passed, no appeal against acquittal
was filed by the State. Counsel for the Respondent now informs
us that an appeal against acquittal has been filed in the Court by
Respondent No.6. However, since the Petitioner has been
acquitted and the Petitioner is the natural guardian of the minor
child, the Petitioner cannot be deprived from obtaining the
custody of his minor child. If the Respondents feel that the
Petitioner is disentitled to continue the custody of the minor, the
Respondents may avail the remedies available in law. The
question is as to whether the welfare of the minor would
warrant the handing over the custody of the minor to any other
person is a question which can only be decided after the
evidence of the parties is recorded and certainly not in this
Petition. The Respondent, however, would be at liberty to file
appropriate proceedings under the Hindu Minority and
Guardianship Act for claiming custody of the minor child. The
said proceedings if they are filed by Respondent No.6 would be
decided in accordance with law. Presently the Petitioner being
the father cannot be deprived the custody of his minor child.
10. We accordingly allow this Writ Petition and make rule
absolute by issuing the writ of Habeas Corpus directing
Respondent No.6 to hand over the custody of the minor child
Tejas to the Petitioner. In the event the custody of the minor
child is not handed over to the Petitioner, we direct the
Respondent State to provide the necessary aid to the Petitioner
for taking the custody of the minor child. We accordingly direct
the officer in-charge of the Baramati Police Station to provide
the necessary aid to the Petitioner for taking the custody of the
minor child from Respondent No.6."
11. Again same view has been taken in the case of Shekhar Jagdish
Prasad Tewari Vs. State of Maharashtra reported in 2019 SCC
OnLine Bom 214, which has been affirmed by the Hon'ble Apex Court
in the case of Tejaswini Gaud Vs. Shekhar Jagdish Prasad Tewari
reported in (2019) 7 SCC 42.
12. Having considered all the evidence available on record and the
rival submissions, this Court is of the considered opinion that the
petitioner is biological father of the child and his natural guardian under
Section 9 of the Act of 1956. He is the sole surviving parent of the
child, who is just two and half years old, definitely needs love, care and
affection of his father. It cannot be said that the welfare of the child will
seriously be compromised if the custody is handed over to the father.
The father is educated man and is gainfully employed in a job. He has
his own two houses and having a good financial status with sufficient
bank balance and his parents are also residing with him.
13. On the other hand, respondents are illiterate, old aged labour
persons, not having sound financial and social status. Since they are not
biological parents of the minor, therefore, statute also favours the case
of the petitioner as father. Therefore, there is no reason to deprive him
from having custody of the child. As observed earlier, the child is of
very tender age and is not yet capable of forming and expressing his
wish. Therefore, this Court is of the considered opinion that the child
Nirbhay's welfare lies in living with father and petitioner being father
of the minor child, is entitled to get custody of his minor child.
14. In the cumulative consideration and findings given, this Court is
of the considered opinion that the trial court has ignored all these
aspects, which is necessary for welfare of the minor child. Hence, the
impugned order passed by the trial court suffers from illegality and
perversity and deserves to be dismissed.
15. In the result, this petition is allowed and the impugned order
dated 19.12.2023 passed by the trial court is hereby set aside and the
respondents No.1 and 2 are directed to handover the custody of the
minor child Nirbhay to the petitioner within 10 days from today. In the
event the custody of the minor child is not handed over to the Petitioner,
this Court direct the State to provide the necessary aid to the petitioner for
taking the custody of the minor child.
16. Before parting, it is made clear that after handing over the custody
of minor to father, maternal grand-parents will have visitation right to
interact with the child and to take note of overall wellbeing of the minor
on every Saturday of every month on any suitable time mutually fixed by
them. No order as to the costs.
C.C. as per rules.
(ANIL VERMA)
JUDGE
Trilok/-
TRILOK SINGH SAVNER
2024.05.31 19:15:50 +05'30'
