Madhya Pradesh High Court
Smt Vandana Pal vs Dharmendra Pal on 27 February, 2025
Author: Hirdesh
Bench: Anand Pathak, Hirdesh
NEUTRAL CITATION NO. 2025:MPHC-GWL:4342
1 MA-3180-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 27th OF FEBRUARY, 2025
MISC. APPEAL No. 3180 of 2024
SMT VANDANA PAL
Versus
DHARMENDRA PAL
Appearance:
Shri H. K Shukla- learned Counsel for appellant.
Shri Manas Dubey & Shri Yogendra Bhardwaj- learned Counsel for respondent.
ORDER
Per: Justice Hirdesh
The instant miscellaneous appeal under Section 47 of the Guardians
and Wards Act, 1890 has been preferred by appellant- wife assailing ex parte
order dated 23-02-2024 passed by Additional Judge to the Court of Principal
Judge, Family Court, Gwalior in RCSHM No.29 of 2021, whereby the
application filed by respondent -husband under Section 25 of the Guardians
and Wards Act, 1890 has been allowed.
(2) Facts giving rise to present appeal, in short, are that respondent-
husband filed an application under Section 25 of the Guardians and Wards
Act, 1890, pleading that his marriage was solemnized with appellant
according to Hindu customs and rites on 29th of April, 2007 in the City of
Gwalior. From their marital relationship, a son, Mayank Pal was born on 26-
09-2008. It was further pleaded that he is residing in Narmada Colony,
NEUTRAL CITATION NO. 2025:MPHC-GWL:4342
2 MA-3180-2024
Gandhi Road, Gwalior while appellant is residing in Chandra Nagar, in front
of Double Tower, Koteshwar Road, Gwalior for the last five years.
Appellant works in Hotel Radission, City Centre, Gwalior. Since marriage,
behaviour of appellant towards him has not been cordial. When his wife-
appellant became pregnant, she was not happy and told him and his family
that she wants abortion. On 26th of September, 2008 appellant reluctantly
gave birth to son, Mayank at Grover Hospital, Morar, Gwalior. All expenses
were borne by him and his family. The appellant used to leave minor son
with his mother and go to her parent's home without his consent or
knowledge. When appellant's maternal uncle passed away, she left the minor
son and went to her parents' house, not returned for 15 days. She used
obscene language in front of minor child while talking to him and his family.
Without informing him and his family, she used to leave minor son and go to
Bhopal, Ujjain and Mumbai. Her intention from the time of marriage was not
to have a happy married life with him or to give birth to a child. She also
filed a false report against him and his family under Section 498-A of IPC in
which the trial Court acquitted him and his family as the charges were not
found proved beyond reasonable doubt. She does not have time for her son
and the minor son Mayank is being adversely affected by her character,
jeoparadizing his future.
(3) Further, in the application, it was pleaded on behalf of respondent
that he works in a private job and earns a monthly income. He is willing to
bear all the expenses of minor son Mayank, if he is given custody of minor
son. After he goes to work, all members of his family are available and fully
NEUTRAL CITATION NO. 2025:MPHC-GWL:4342
3 MA-3180-2024
capable to take care of minor son. He and his entire family are educated
family. He is the father of minor son and being natural guardian, has the
natural right to keep his son Mayank with him. He is ready to fully cooperate
in making the future of his minor son. Appellant works in a private hotel due
to which she does not have any time to spend with his son and is unable to
take proper care of him, which is hindering the proper development of his
minor son. Being the natural father and guardian of minor son according to
Hindu law, he has the legal right to obtain custody of minor son Mayank.
Therefore, sought for custody of minor son.
(4) Although appellant appeared on 24-11-2023 but she remained
absent thereafter, therefore, ex parte proceedings were initiated.
(5) A reply was filed on behalf of appellant and it was alleged by
appellant that although the respondent is the biological father of minor son
Mayank, but he has never fulfilled his duties as a father. She is the mother of
minor child and is his actual guardian. The respondent has attempted to make
baseless accusations against her. His brother and father used to quarrel and
demand dowry at the time of marriage. She loves her son very much and
always keeps him with her and takes good care of him. Acquaintances of
respondent, Kallu, Naveen and Hautam Singh had assaulted and threatened
her, her father and brother at their home. On 27-09-2016, her husband-
respondent, father-in-law Omprakash Jatav, mother-in-law Ramshree Jatav,
elder brother-in-law Harish Jatav and elder sister-in-law Rekha Jatav
assaulted her and subjected her to physical and mental torture. They forcibly
gave her poison and left her to die. When she was admitted to the Hospital,
NEUTRAL CITATION NO. 2025:MPHC-GWL:4342
4 MA-3180-2024
the Hospital Management called police and a case under Section 498-A, 506,
34 of IPC was registered. Based on the medical report and dying declaration,
Sections 307, 328 of IPC was added. It was further alleged that respondent
earns Rs.50,000/- per month by lending money on interest but does not want
to spend any money on her minor son Mayank. He is not complying with the
order of Family Court to pay maintenance amount of Rs. 7000/- per month.
Therefore, the claim of bearing all the expenses of her minor son Mayank is
completely false. He is not paying maintenance amount to her and her minor
son and keeps complaining about lack of money whereas, no one can take
better care of a child than a mother. He will ruin the future of her minor son
Mayank instead of building a bright future. In such a situation, the
respondent is not entitled to custody of minor son Mayank. He has never
fulfilled any of his duties as a father and maintenance amount ordered by
the Family Court for the benefit of minor Son has not been paid so far.
Therefore, prayed for dismissal of application filed by respondent.
(6) On appreciating the pleadings as well as evidence of respondent
and reply of the appellant and documents available on record, the Family
Court has passed the impugned ex parte order dated 23-02-2024 with a
direction to the appellant to handover the custody of minor son Mayank to
respondent.
(7) Feeling dissatisfied, appellant- wife has knocked the doors of this
Court by filing the instant miscellaneous appeal.
(8) It is contended on behalf of appellant that the impugned ex parte
order passed by the Family Court is patently illegal and contrary to law. The
NEUTRAL CITATION NO. 2025:MPHC-GWL:4342
5 MA-3180-2024
respondent has obtained the impugned ex parte order from the Family Court
by supressing the earlier dismissal of his application. The interest of
respondent was only for using the child as an instrument to harass the
appellant- wife and for taking care with prospective purpose. Presently,
minor child is studying in Class-X. The financial status of the respondent is
not good, therefore, if minor child is kept under the custody of respondent
and his family, then education as well as mental and physical welfare of
minor child would be affected at large. Respondent has an ulterior motive to
take away the minor child from the lap of mother. Therefore, it is prayed that
the impugned order order be set aside.
(9) On the other hand, learned Counsel for the respondent, opposed
the contentions of the appellant. It is submitted that earlier application filed
by respondent under Section 6 of Guardians and Wards Act was dismissed as
withdrawn with a liberty to the respondent to file afresh because the same
was not filed in prescribed proforma. Appellant has signed on the order-sheet
dated 03-04-2019, therefore, nothing has been suppressed or concealed by
respondent. It is further contended that appellant deliberately did not appear
before the Family Court although she is very much aware of case. Despite
giving various opportunities, on some of dates, appellant did not appear as
well as on some of dates, her counsel also did not appear, therefore, case was
fixed for 24-11-2023 and due to non-appearance of appellant as well as her
counsel, case was proceeded as ex parte. It is also contended that respondent
and his family have already been acquitted by the trial Court vide judgment
dated 12-03-2019 from charges levelled against them under Sections 498-A,
NEUTRAL CITATION NO. 2025:MPHC-GWL:4342
6 MA-3180-2024
506, 34 and enhanced Sections 307, 328 of IPC in connection with Sessions
Trial No.128 of 2017 and appellant has utterly failed to prove offence
beyond reasonable doubt. Welfare of minor child is the first and paramount
consideration and looking to the best interest of minor child as well as for
her maintenance and proper education, the Family Court has rightly allowed
the application of respondent filed under Section 25 of Guardians and Wards
Act, 1890 for custody of minor son Mayank. No interference is warranted.
Hence, prayed for dismissal of this appeal.
(10) Heard learned Counsel for parties and perused the impugned
order as well as documents available on record.
(11) Section 6 of the Hindu Minority and Guardianship Act of 1956
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),-
(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, ad after her, the fact.
xxxxx ''
(12) The word ''welfare'' used in Section 13 of the Hindu Minority and
Guardianship Act has to be construed liberally and must be taken in its
widest sense. The moral and ethical welfare of the child must also weight
with the Court as well as its physical well being. Though the provisions of
the special statues 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
NEUTRAL CITATION NO. 2025:MPHC-GWL:4342
7 MA-3180-2024
Court exercising its parens patri ae jurisdiction arising in such cases.
(13) The principles in relation to the custody of 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'' not
rights of the parents under a statute for the time being in force.
(14) In the case of Rosy Jacob vs. Jacob A Chakramakkal (1973) 1
SCC 840, the Hon'ble Apex Court observed that object and purpose of 1890
Act is not merely physical custody of the minor but due protection of the
rights of ward's health, maintenance and education. The power and duty of
the Court under the Act is the welfare of minor, in considering the question
of welfare of minor, due regard has of course to be given to the right of the
father as natural guardian but if the custody of the father cannot promote the
welfare of the children, he may be refused such guardianship.
(15) Again, in the matter of Thrity Hoshie Dolikuka vs. Hoshiam
Shavaksha Dolikuka (1982) 2 SCC 544, the Hon'ble Apex Court reiterated
that the only consideration of the Court in deciding the question of custody
of minor should be welfare and interest of the minor. And it is the special
duty and responsibility of the Court. Mature thinking is indeed necessary in
such situation to decide what will enure to the benefit and welfare of the
child.
(16) Regarding welfare of a minor child, the coordinate Bench of this
Court also in the case of Jayant Bavar vs. Smt. Deepa Bavar, AIR 1994
NOC 269 (Madhya Pradesh) has held that the statutory right of the father as a
natural guardian of the child cannot be allowed to prevail over the wife's
NEUTRAL CITATION NO. 2025:MPHC-GWL:4342
8 MA-3180-2024
custody of the ward on paramount consideration of the child's welfare. Thus,
the welfare of the ward is a paramount consideration and all other
considerations have secondary relevant. That is the mandate of law and
morale of the precents. The tender feelings of the child should not be
shattered or hampered in developing, lest he should shape as an unwelcome
citizen in the society. For determining welfare of the child the questions to
be asked are : Where is he likely to more happy? By whom the physical and
mental development and comfort of the child can be better looked after?
Who has not only the desire but a determination, not only the concept but
also the capacity to provide for a better education and round the clock
nursing of the child? Who would be available by the side of the child when
the child would need love and affection, the care and counselling, the
protection and petting up? (Emphasis underlined)
(17) It is not in dispute that that the marriage of appellant with
respondent was solemnized on 29th of April, 2007. Out of their wedlock,
minor son, Mayank was born on 26-09-2008. Since 2016, the minor son
Mayank was living with her mother, who is living separately from her
husband- respondent in her parental home.
(18) Respondent (AW1) in his Court statement has specifically
deposed that his wife- appellant is residing at her parents house and did not
take proper care of minor child. She used to stay at her parents as well as at
maternal uncle's house since 2016. Since 2021, he has been running a
readymade garment and gift shop from which, he is earning Rs.8,000-
10,000/- per month and prior to this, he was doing a private job from which
NEUTRAL CITATION NO. 2025:MPHC-GWL:4342
9 MA-3180-2024
he used to receive Rs.6,000/- per month. His wife- appellant has already
filed maintenance application and domestic violence case. He and his family
members have already been acquitted by the Trial Court from the charge
levelled against him and his family at the instance of appellant for offence
under Section 498-A, 506, 34 of IPC and enhanced Section 307, 328 of IPC
vide judgment dated 12th of March, 2019. Even otherwise, in compliance
with the Court order, he is paying monthly maintenance amount. Despite
several attempts, since 2016, the appellant did not permit him and his family
members to meet his minor son Mayank. He is ready to bear all expenses and
wants to maintain his minor son for his higher education and fulfil his needs.
He has an ancestral property in which, he and his family reside. He and his
family also love his minor son very much. Appellant is dependent on her
parents and she has no source of income.
(19) In view of law laid down by the Supreme Court as well as
coordinate Bench of this Court, it is evident that the welfare of minor child is
the paramount consideration. The Court has to give weightage to child's
ordinary contentment, health, education, intellectual development, favourable
surroundings, love and affection, etc. and where minor child is likely to be
more happy and by whom, physical and mental development and comfort of
minor child can be better looked after and who has capacity to provide for a
better education and development of child.
(20) Thus, from evidence of respondent as well as documents
available on record, it appears that respondent is the father as well as natural
guardian of minor child. He has sufficient source of income as compared to
NEUTRAL CITATION NO. 2025:MPHC-GWL:4342
10 MA-3180-2024
appellant and the welfare of minor child appears to be best in the custody of
respondent for better education and bright future.
(21) Accordingly, this Court does not find any error or illegality in
passing the impugned ex parte order passed by the Family Court in favour of
respondent. The order dated 23-02-2024 passed by Additional Judge to the
Court of Principal Judge, Family Court, Gwalior in RCSHM No. 29 of 2021
is hereby affirmed.
(22) In view of foregoing discussion, the instant appeal fails and is
hereby dismissed.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
MKB
