Suman W/O Late Nemichand vs Bhikam Singh S/O Mangal Singh ...
2023 Latest Caselaw 5556 Raj/2

    [2023:RJ-JP:29171-DB]

              HIGH COURT OF JUDICATURE FOR RAJASTHAN
                          BENCH AT JAIPUR

                D.B. Civil Miscellaneous Appeal No. 862/2021

    Suman W/o Late Nemichand, R/o Village Jayera Ka Pura, Police

    Station Maniyan, Tehsil And District Dholpur (Raj.) Presently

    Resident Through Wife Vishnu S/o Dinesh Alias Sarpath, R/o Holi

    Khirakiya, Opp. Sitaramji Mandir Ki Gali Dang Karauli (Raj.)
                                                                          ----Appellant
                                           Versus
    Bhikam Singh S/o Mangal Singh, R/o Village Chorpur Kachhwaha

    Basti Mamodhan, Tehsil Basedi, District Dholpur (Raj.)
                                                                        ----Respondent


    For Appellant(s)             :     Mr. Hari Krishana Sharma
    For Respondent(s)            :     Ms. Shashi Bala Sharma



     HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA
          HON'BLE MR. JUSTICE PRAVEER BHATNAGAR

                                        Judgment
REPORTABLE
    05/10/2023
    By the Court : (PER HON'BLE BHATNAGAR, J.)

1. This appeal is preferred against the order dated 03.02.2021

passed by the Family Court, Dholpur (hereinafter referred to as

'Family Court' for short) whereby, the application of the

respondent paternal grandfather filed under Sections 6 and 25 of

the Guardians and Wards Act, 1980 (hereinafter called 'the Act' for

short) was allowed and, the Court directed the appellant mother

to hand over the custody of Master X to the respondent and

further authorised the limited visiting rights to the appellant.

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2. Admittedly, minor X is the appellant's son and paternal

grandson of the respondent (father-in-law of the appellant).

3. The operative part of the order reads as follows:-

"16½ mijksDr laiw.kZ foospu ds vk/kkj ij izkFkhZ Hkhde flag dh vksj ls izLrqr ;g izkFkZuk i=] vo;Ld ckyd fd"ku iq= Lo- usehpan dh vfHkj{kk ds lanHkZ esa fuEu fn"kk&funsZ"kksa ds lkFk Lohdkj fd;k tkrk gS %& 1- izkFkhZ Hkhde flag dks vius iq= usehpan o lqeu ds uqRQs ls mRiUu larku ukckfyx fd"ku iq= Lo- usehpan dh mfpr ns[kHkky] dY;k.k ,oa ykyu&ikyu gsrq fof/kd laj{kd fu;qDr fd;k tkdj vkns"k fn;k tkrk gS fd izkFkhZ vius ikS= fd"ku dh f"k{kk] [kku&iku] LokLF; ,oa dY;k.k dk iwjk /;ku j[ksxkA 2- vizkFkhZ lqeu fd"ku ls izR;sd jfookj dks ,oa /kkfeZd R;kSgkjksa ij izkFkhZ dks iwoZ lwpuk nsdj izkFkhZ ds ?kj ls ckgj fey ldsxh vkSj vodk"k ds fnu cPps dks vius lkFk ?kqekus] euksjatu ;k [kjhnnkjh ds fy;s ckgj ys tk ldsxh vkSj "kke gksus ls iwoZ izkFkhZ ds ikl okfil ys vk;sxhA 3- dkykarj esa ;fn vizkFkhZ vkSj cPps fd"ku ds chp vkilh lkeatL; o izse fodflr gksrk gS vFkok ifjfLFkfr;ksa esa dksbZ ifjorZu gksrk gS rks vizkFkhZ cPps dh vfHkj{kk ds lanHkZ esa bl vkns"k esa la"kks/ku gsrq izkFkZuk i= is"k dj ldsxhA fu;ekuqlkj izek.k i= tkjh gksA"

It is quintessential to narrate the brief facts to appreciate the findings arrived at by the Family Court:

4. The respondent filed an application under Sections 6 and 25

of the Act with the averments that master X, six years in age, is

his grandson and son of deceased Nemichand. After getting

married to his son, the appellant used to quarrel and desired to

reside with her brother-in-law Ramnath. She repeatedly left the

marital house without intimating her husband and often declined

to come. She insisted on marrying Nemichand's brother Yogesh.

During the lifetime of his son (since deceased), the appellant led

an adulterous life with her brother-in-law and others, further

forcing on to marry Nemichand's brother Yogesh. Thus, due to

constant domestic conflicts, Nemichand committed suicide on

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22.11.2016. After the death of the respondent's son, the appellant

left the matrimonial house, leaving her minor son X with the

paternal grandparents. The minor X was adequately nurtured and

taken care of by the respondent.

5. After the death of her husband Nemichand, the appellant

contacted marriage with Vishnu Mali, a resident of the village Holi

Khirkiya and lived with him. Vishnu Mali murdered his first wife

and had two children with his first marriage and is a man of the

criminal antecedent. It is also pleaded that the appellant

threatened the respondent to implicate in the case of rape and,

with the aid of the police, illegally acquired custody of the minor

child. The appellant handed over the child to her brothers, namely

Ramraj and Kaptan. Both the brothers are indulged in gambling

and are drunkards. They do not allow the respondent to meet his

grandson and extract money to allow visit to the minor. It is

adversely affecting minor's physical and mental health and

education. The appellant is negligent towards the welfare of the

minor. The respondent desires to provide higher education to his

grandson for his bright future. Therefore, the custody of the minor

is handed over to him.

6. The appellant, in response to the pleadings above, denied

the allegations of harassment leading an adulterous life during the

lifetime of her deceased husband, marrying Vishnu Mali and

further refuted the averment about the conduct of her brothers

and their alleged ill-treatment towards the minor and her lax

attitude towards the welfare and future of her minor son. She

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alleges that the respondent had bad intentions towards her. After

knowing the conduct of the respondent, the deceased had an

altercation, and due to respondent's conduct, Nemichand

committed suicide. She further alleges that after the death of her

husband, respondent and his wife forcibly ousted appellant from

the matrimonial house and took the minor to an undisclosed

place. She got the custody of minor after lodging a missing report

at the police station.

7. Learned Family Court framed the following issue for

determination:-

"vk;k e`rd usehpan o vizkFkhZ lqeu ds iq= ,oa izkFkhZ Hkhdeflag ds ikS= fd"ku dk dY;k.k mlds nknk Hkhdeflag vFkok mldh ekrk lqeu ds lkFk jgus esa gS\"

8. The respondent examined himself as AW-1 and other

witnesses AW-2 Hetram, AW-3 Pappu Kushwah and AW-4 Yogesh

to prove the averments.

9. The appellant testified herself as NAW-1 Suman and led

evidence of NAW-2 Guddi and NAW-3 Vrindawani to repudiate the

respondent's claim.

10. The Family Court after appreciating the evidence put forth,

categorically held that:-

(i) After 8-10 days of Nemichand's demise, appellant

Suman left the matrimonial house with her brothers, leaving

her minor child with the grandparents; afterwards, the minor

child studied at Chourpura and remained with the

grandparents for nine months. (The factum of minor X

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having studied at Chorpura is proved from Exhibit-1 School

Certificate) Suman left the marital house after Nemichand's

demise is proved from Exhibit-3. On the contrary, apart from

her oral version, the appellant did not produce any

documents proving that her minor son is getting education

from the village school.

(ii) In Exhibit-3, appellant Suman admitted that she lodged

a false report against her father and mother-in-law.

(iii) The appellant failed to prove that the respondent

sexually harassed her and kept the minor at an undisclosed

place. The version gets negated from Exhibit-3. The evidence

of AW-2 Guddi and AW-3 Vrindawani in this regard is

unreliable.

(iv) The witnesses (NAW-2 Guddi and NAW-3 Vrindawani)

adduced by the appellant have admitted that Suman doesn't

have earning means and is wholly dependent on her

brothers. Appellants brothers are indulged in gambling and

are drunkards. The appellant has contracted marriage with

Vishnu and resides in Karauli village. Apart from her oral

version, the appellant did not produce any documents

revealing her minor son getting an education from the village

school. Whereas respondent is educated, doing tailoring

work, and owns agricultural land. During the brief stay with

the respondent, minor X got proper schooling.

(v) The appellant has admitted that the minor X often

insists on meeting his grandfather.

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11. Learned counsel appearing on behalf of the appellant

questions the conclusion arrived at by the Family Court and would

contend that the Family Court did not appreciate the evidence

correctly and that the mother, being a natural guardian, ought not

to have been denied custody of the minor. The conclusion

regarding the appellants contracting marriage with Vishnu, the

brothers indulging in gambling and drunkards, is perverse. He

would further argue that during the interaction of the child by this

Court, the child has, in unequivocal terms, expressed the desire to

stay with the mother, which indicates that he is being looked after

properly and shifting the child from motherhood after the gap of

six years to grandparents would adversely affect him emotionally.

He further argues that the appellant is keen to continue the

education of her minor son.

12. Per contra, the learned counsel for the respondent supports

the findings arrived at by the Family Court. He vehemently points

out that the appellant has not provided education to the minor for

the last seven years, and that fact remains uncontroverted. In the

interaction with the Family Court, the appellant blamed the

respondent for not providing Adhar card by the respondent as the

reason for his non-admission to the school. The reason cited by

the appellant for the minor's non-admission to the school is false

and an afterthought; this solitary fact is enough to demonstrate

that it is not in the welfare of the minor to keep him in the

appellant's custody. Further, the evidence confirms that the

appellant is uneducated and dependent on her brothers. The

evidence also proves that the appellant's brothers are involved in

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gambling and are drunkards. The conclusion of the Family Court is

well-founded and reasoned. Therefore, the appeal may be

dismissed.

13. We have heard both the learned counsel and considered the

submissions made hereinabove and perused the record of the

Family Court.

14. Before delineating the factual aspects of the case, it is

relevant to state the law and general principles regarding

entitlement to the custody of the minor.

15. Section 6 of the Act provides that in the case of a minor,

nothing in this Act shall be construed to take away or derogate

from any power to appoint a guardian of his person or property or

both, which is valid by the law to which the minor is subject.

16. Section 7 of the Act provides for the power of the Court to

make orders as to guardianship. Subsection (1) of Section 7

provides that where the Court is satisfied that it is for the welfare

of a minor that an order should be made appointing a guardian of

his person or property or both or declaring a person to be such a

guardian, the Court may make an order accordingly.

17. Section 17 (1) & (2) and Section 25 of the Act read as

under:-

"17. Matters to be considered by the Court in appointing a 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

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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."

"25. Title of guardian to custody of ward--(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of the opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian. (2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882 (10 of 1982).

(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship."

18. Thus, from a bare perusal of the provisions of Section 17

read with Section 25(1) of the Act, one thing is evident in the

matter of custody of the child: paramount consideration is the

welfare of the minor and not the status of the parents or relatives.

The word 'welfare' used in Sections 7, 17 and 25 has to be

construed literally.

19. While dealing with custody cases, a court is neither bound by

statutes nor strict rules of evidence or procedure. In selecting the

proper guardian of a minor, the paramount consideration should

be the welfare and well-being of the child.

20. Further, under Section 17 of the Act, the Court is duty-bound

to find a more suitable person amongst the rival claimants. The

Court and its physical well-being must also weigh the moral and

ethical welfare of the child.

21. The object and purpose of the Guardians and Wards Act is

not merely physical custody of the minor but due protection of the

rights of the ward's health, maintenance and education. In

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considering the question of the welfare of the minor, due regard

has, of course, to be given to the right of the parents as natural

guardians, but if the custody of the parents cannot promote the

welfare of the children, they may be refused such guardianship.

22. Further, It is not the better right of either party that would

require adjudication while deciding their entitlement to custody.

The desire of the child coupled with the availability of a conducive

and appropriate environment for proper upbringing, together with

the ability and means of the party concerned to take care of the

child, health, moral or ethical welfare, maintenance, etc., are

some of the relevant factors that have to be taken into account by

the Court while deciding the issue of custody of a minor.

23. The welfare principle is aimed at administering twin

objectives. First, it ensures the child thrives and develops in an

adequate environment. The child's best interest has been placed

at the forefront of family/custody conflicts according to the

optimal growth and growth of the child's precedence over other

considerations. This right of the child is also based on individual

dignity. The second justification behind the welfare principle is the

public interest that stands served with the optimal growth of the

children. The evolved Child-centric human rights jurisprudence is

founded on the principle that the public reasonably demands

proper child development and the country's future.

24. Further, the determination of the custody of minor children

cannot be construed through a conventional modus operandi;

instead, it is dependent upon the facts and circumstances of each

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case. Having said that, although the custody/guardianship rights

cannot be decided solely by interpreting legal provisions, the

principles governing the custody of minor children are well settled.

The paramount consideration while determining the custody of a

minor should be the "welfare‟ and "well-being‟ of the child.

25. On the above tenets, the evidence adduced by both parties

requires to be reappreciated.

(A) On the point of Minor's Education :-

26. The oral evidence of respondent AW-1 and the documentary

evidence Exhibit-1 prove that while staying at Chorpura village,

the minor studied from 25.07.2017 to 19.08.2017. The appellant

has failed to refute the testimony of AW-1. Further, in her cross-

examination, the appellant admits that minor is not admitted to

any school. Exhibit-1 shows that the minor studied from

25.07.2017 to 19.08.2017. The custody of a minor afterwards is

with the appellant. We also interacted with the minor, and he said

he is not attending any school. The age of the minor at the

relevant period when he last attended the school in the year 2017

was of 5 years age.

27. Thus, it is explicit that the minor did not attend any school

and hung around for six years without acquiring even elementary

formal education. The appellant, in interaction with the Court,

expressed that due to the unavailability of the Adhar card, she

could not get the minor admitted to any school. The rationale of

the appellant regarding withholding the minor from gaining access

to the school for such a long span is not at all conceivable. Even

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the brothers of the appellant should have strived to admit the

minor to the school, but they failed. Such a lackadaisical approach

towards the ward in the era of excellence, wholly knowing the

significance of education, is against the welfare of the child and

amounts to playing with the future of the minor. The appellant is

accountable for thrusting the carrier of the minor in the dark.

Irreparable damage to the future of the minor has already been

inflicted with a far-reaching effect on mental psychosis. If the

custody of the minor continues with the appellant, then indeed,

the future of the minor shall be wrecked and ravaged. Therefore,

continuing the custody of a minor with the appellant is detrimental

and playing with his future. We know that resumption of studies

after a gap of almost seven years is a colossal task and a minor

may experience several problems coping up with students below

or above his age. Even if it is presumed that the minor would get

an amiable atmosphere in the school and would not be subjected

to teasing or taunting, the minor may feel that he is not akin to

other classmates and lagging behind in all the domains. Taking

into consideration all the above probabilities in mind, we cannot

leave the minor in the custody of the appellant to entirely ravage

his future prospects.

(B) On the Financial aspects:-

28. The evidence led by both parties ascertains that the

respondent is financially more affluent than the appellant, having

means to fulfill a family's basic needs. On the contrary, the

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appellant is wholly dependent on her brothers, having no

permanent source of earnings.

(C) On the aspect of a Conducive and appropriate environment:-

29. The evidence on record exhibits that the brothers of the

appellant are involved in gambling and habitual drinkers. Keeping

the child in such an environment may affect him, and the

possibility of falling prey to immoral activities and exploitation

cannot be ruled out.

30. Further, the fact regarding the appellant contracting marriage

with Vishnu having criminal antecedents and two sons from his

first wife has also come on record. However, this is not verified as

the evidence led by the respondent appears to lack clinching

proof. Still, the other events examined above are sufficient to

conclude that it is not in the interest of the minor X to continue in

the custody of the appellant. We do not find any perversity in the

Family Court's order while concluding the above findings. The

Family Court has rightly weighed the oral and documentary

evidence, and its conclusions are based on sound principles of the

Evidence Act.

31. Keeping in mind the welfare of the minor in its entirety, we

concur with the findings arrived at by the Family Court, resulting

in the appeal being dismissed. Let appellate decree be accordingly

drawn.

(PRAVEER BHATNAGAR),J (MANINDRA MOHAN SHRIVASTAVA),J

ASHWINI KUMAR CHOUHAN /680

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