G Aruna Kumari/ Ayesha Narseen vs G Veerabhadra Rao
2022 Latest Caselaw 1408 Tel

     THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
                         AND
          THE HON'BLE SRI JUSTICE M.LAXMAN

          FAMILY COURT APPEAL No.157 OF 2018

JUDGMENT:    (Per Hon'ble Sri Justice M.Laxman)


1.   The present appeal assails the order and decree dated

02.01.2018 in G.O.P.No.119 of 2015 on the file of the Judge,

Family Court, Khammam (for short, trial Court), wherein and

whereby the application filed by the respondent herein for

change of custody of the minor child viz., Ganji Sai Gnyanesh

from the custody of petitioner herein was allowed.

2. The appellant herein is the respondent and the respondent

herein is the petitioner in GOP.No.119 of 2015. For the sake of

convenience, the parties hereinafter are referred to as they are

arrayed before the trial Court in the said GOP.

3. The case of the petitioner is that the respondent is his own

sister. The petitioner married one Ganji Durga and the minor

child Ganji Sai Gnyanesh was born to them on 19.07.2008 at

Khammam. 40 days after the birth of the child, the wife of the

petitioner died. When the petitioner was under shock and

sorrowful condition, at the instance of his old aged parents, he

reluctantly agreed to handover the custody of the minor child to

the respondent.

4. It is the further case of the petitioner that the respondent

married to Syed Abdul Quddus. Even though the child was in

the temporary custody of the respondent, the petitioner had

been regularly visiting the child and he was taking care of the

child. On 09.01.2015, the petitioner went to the house of the

respondent to bring the minor child back for Pongal holidays,

but the respondent resisted and refused to allow the custody. In

the said circumstances, the petitioner filed the said GOP.

5. Contesting the GOP, the respondent admits that the child

was born to the petitioner and his deceased wife. She also

admits the circumstance under which the custody of the minor

child was handed over to her from the petitioner. She also

admits that she married to Syed Abdul Quddus. She claims that

the petitioner voluntarily handed over the minor child to her for

taking care, welfare and maintenance when the child was of

tender age. She had been taking care of the minor child as a

foster mother and the minor child was given good education and

he is studying 2nd class in Narayana Foundation School,

Khammam. She further claims that the child's name was

changed as 'Syed Meer Rashid Ali'. She further claims that her

husband is also very cooperative in looking after the welfare of

the minor child and the minor child is also happy, peaceful and

comfortable with her. She denied the claim of the petitioner that

she refused to hand over the custody of the minor child to the

respondent. According to the respondent, there is no cause of

action.

6. In the trial Court, the petitioner to support his case,

examined P.Ws.1 to 3 and relied upon Exs.A-1 and A-2. The

respondent, to support her case, examined herself as R.W.1, but

she did not let in any documentary evidence.

7. The trial Court, after considering the evidence on record,

found that the petitioner has made out case for change of

custody of the minor. Accordingly, the trial Court allowed the

said GOP and ordered for change of custody of the minor from

the respondent to the petitioner. Hence, the present appeal by

the respondent.

8. Heard both sides.

9. The only point that arises for consideration is whether the

welfare of the minor is better in the custody of the petitioner or

the respondent?

10. The undisputed facts are that the custody of the minor was

handed over to the respondent when the wife of the petitioner

died after 40 days of giving birth to the child. According to the

petitioner, his parents were old aged, and on account of their

pressure, and considering the tender age of the child, temporary

custody of the minor was given to the respondent, who is no

other than his own sister. The respondent has claimed that the

petitioner has voluntarily handed over the minor child to her and

she is taking care and welfare of the minor.

11. As per Section 6 of the Hindu Adoptions and Maintenance

Act, the custody of the child upto five years is legally with the

mother and thereafter, father is entitled for custody. Section 11

of the said Act says that irrespective of legal rights of the

parents, the paramount consideration for deciding the custody of

the minor is welfare of the child. The rights of the parties are

subservient to the welfare of the child.

12. In this regard, it is relevant to refer to the decision of the

Apex Court in Gaurav Nagpal v. Sumedha Nagpal1, wherein at

para 24, it was observed as under:

"24. In Mc Grath, Re, (1893) 1 Ch 143 : 62 LJ Ch 208, Lindley, L.J. observed:

The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of the child is not to be measured by money only nor merely physical comfort. The word `welfare' must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well-being. Nor can the tie of affection be disregarded."

13. A reading of the above decision, the welfare of the child is

not to be measured in money or physical comfort, but it has a

wider sense to include even moral or religious welfare of the

child apart from physical well-being. It is also held that tie of

Civil Appeal No.5099 of 2007, dated 19.11.2008

affection cannot be disregarded. In dealing with the welfare of

the child, the Court must take into consideration the ordinary

contentment, health, education, intellectual development,

favourable circumstances, maintenance apart from physical

comfort, moral and ethical values.

14. In case of Rosy Jacob v. Jacob A.Chakramakkal2, the

Apex Court held that right of the father as a natural guardian

cannot be deprived unless it is shown that if the custody is given

to the father, there is no promotion of welfare of the child.

15. Guided with the above principles, we have to examine

whether the trial Court erred in giving the custody of the minor

to the father. The evidence on record clearly shows that the

respondent is the own sister of the petitioner. The custody was

given under the circumstance that the mother of the child died

after 40 days of birth of child and the child was of tender age. At

that time, no woman was there to take immediate welfare of the

child, since the parents of the petitioner were old aged and all

other family siblings were married. The petitioner claimed that

he agreed for handing over temporary custody of the child under

mental pressure created by his parents on account of their old

age and the circumstance of shock and sorrow due to sudden

(1973) 1 SCC 840

demise of his wife. Whereas, the respondent set up the plea that

the petitioner voluntarily gave custody of the child to her.

16. The evidence of the petitioner clearly shows that the

permanent custody was never intended and it was temporary

custody to meet the immediate necessity of the child on account

of his tender age. The respondent has not made out any

circumstance from the evidence on record to show that the

father, who is the natural guardian of the child, and who is

having a legal right to have the custody, was disqualified on

account of any of the existing circumstance which would be

detrimental to the welfare of the child. The only ground taken by

the respondent is that the child is being given good education

and he is comfortable with her and her husband is also very

cooperative in taking care of the child.

17. As adverted to herein before, the welfare is not to be

measured in money or physical comfort. The moral and

physical, including the religious welfare, is also to be taken care

of. The admitted case of the respondent shows that her marriage

is a love marriage and she married a Muslim person and the

child is projected as the child of the respondent and her

husband. Unfortunately, even the name of the child was

changed from Ganji Sai Gnyanesh to Syed Meer Rashid Ali.

These circumstances would indicate that the child is being

grown as a Muslim instead of Hindu. This circumstance itself

shows that the religious welfare of the child is not properly taken

care of by the respondent. Further, there is no evidence of

disqualification of the petitioner to hold the custody and no

circumstances are brought that if the change of custody was

given to the natural father, there is no promotion of welfare of

the minor in the hands of the petitioner.

18. The Apex Court in Tejaswini Gaud v. Shekhar Jagdish

Prasad Tewari3 held as follows:

"34. The welfare of the child has to be determined owing to the facts and circumstances of each case and the court cannot take a pedantic approach. In the present case, the first respondent has neither abandoned the child nor has deprived the child of a right to his love and affection. The circumstances were such that due to illness of the parents, the appellants had to take care of the child for some time. Merely because, the appellants being the relatives took care of the child for some time, they cannot retain the custody of the child. It is not the case of the appellants that the first respondent is unfit to take care of the child except contending that he has no female support to take care of the child. The first respondent is fully recovered from his illness and is now healthy and having the support of his mother and is able to take care of the child."

19. In the said circumstances, the trial Court has rightly

appreciated the evidence and rightly held that the petitioner is

(2019) 7 SCC 42

entitled for change of custody. Hence, such findings do not

require any interference.

20. In the result, the appeal is dismissed. Miscellaneous

petitions pending, if any, shall stand closed. There shall be no

order as to costs.

____________________________ A.RAJASHEKER REDDY, J

_______________ M.LAXMAN, J Date: 23.03.2022 TJMR