This post is a case digest on Appeal under Guardians and Wards Act 1890 for Custody of Child wherein the custody of two minor children were refused since they wanted to go back to their maternal grandfather and grandmother than their father as paramount in these cases is welfare of the child and nothing else. The appellant filed application under Section 25 of Guardians and Wards Act where the petition was refused by the court on adducing evidence since the father was of furious nature towards the deceased mother of children.
Now let’s read the judgment
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Member and Authority:
Hon. Shri Justice SheelNagu
Hon. Shri Justice Rajeev Kumar Shrivastava
Madhya Pradesh High Court
Case No.:M.A. No.1732/2020Date of Judgement: 11 May, 2020Appellant:Manoj Kumar Goswami
Shri B.K. Sharma, learned counsel for the appellant
Respondent:
Smt. Sudha Sharma & others
Shri Anuraj Saxena, learned counsel for the respondents.
Facts and Judgments:
This Miscellaneous Appeal is preferred under Section 47 of Guardians and Wards Act 1890 by the appellant/father against the respondents, challenging the order dated 26/10/2018 passed by First Additional Sessions Judge, Ganjbasoda, District Vidisha M.A. No.1732/2020 (Manoj Kumar Goswami Vs. Smt.Sudha Sharma & others) (M.P.) in M.J.C. No.04/2016, whereby, the petition filed by the appellant is allowed to the extent that he can meet his sons once in a month for four hours and he may talk twice on phone in a month. The facts of the case in short are that the appellant and late Riturani were legally wedded on 25/05/2001. Thereafter, due to their wedlock, they got two sons, one Dev Goswami and Yash Goswami, who are in custody of the respondents. The date of birth of Dev and Yash are 10/02/2004 and 07/04/2005 respectively. Just after birth of aforesaid sons, the wife of the appellant became seriously ill. Despite various treatments, she passed away on 28/09/2012.
After death of appellant’s wife, appellant sent his sons to the respondents to change the atmosphere. Thereafter, he went many a times to get back his sons but respondents refused the appellant and treated him improperly. Hence, the appellant filed application under Section 25 of Guardians and Wards Act, which was registered as M.J.C. No.04/2016, wherein the impugned order has been passed. Learned counsel for the appellant has submitted that the order impugned is against the provisions of law. The appellant is the natural guardian of his minor sons. The appellant is an Officer in Indian Army and is competent to maintain his sons properly. Due to aforesaid order, the appellant has been deprived from his paternal obligations. The appellant is seeking custody of his sons M.A. No.1732/2020 (Manoj Kumar Goswami Vs. Smt.Sudha Sharma & others) with a view to make their future bright. He belongs to a reputed family.
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Therefore, he prayed to set aside the impugned order and allow the appeal.Per contra, learned counsel for the respondents has opposed the submissions of learned counsel for the appellant and has submitted that trial Court in paragraph 23 of its order has observed that in examination, the minor sons have specifically stated that they do not want to reside with their father and want to reside with the respondents. Under these circumstances, learned counsel for the respondents prayed to save the welfare of the sons and prayed to dismiss the appeal. Heard learned counsel for the parties and perused the record. Paragraph 23 of the impugned order specifically indicates that both the sons have stated that they do not want to reside with their father and want to reside with their maternal grandfather, maternal grandmother and maternal uncle.
It has also come on record that the respondents are maintaining minor sons, Dev Goswami and Yash Goswami properly and they are having sufficient means to maintain Dev Goswami and Yash Goswami. It is also apparent that the respondents have taken care of minor sons’ for their bright future.In paragraph 7 of the impugned order, it is observed on the M.A. No.1732/2020 (Manoj Kumar Goswami Vs. Smt.Sudha Sharma & others) basis of evidence produced before the trial Court that the behaviour of the appellant’s father with the appellant’s wife late Riturani was not proper and the appellant/husband had illicit relation with some other lady. His behaviour was very furious towards his late wife. The aforesaid facts remained unreverted. The evidence produced by the appellant was rightly disbelieved by the trial court and evidence produced by the respondents was rightly accepted by the trial Court.
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On perusal of the relevant provisions of the Act of 1890 what clearly emerges is that the matter relating to the custody of a minor child is not only an overwhelming but the paramount consideration that must weigh with the court when examining the “welfare of the minor” and the said term must be given effect to in its broadest sense. At the time of appointing or declaring any person as the guardian of a minor, it is not the rights of the parents or relatives that should concern the court. The paramount consideration is the welfare of the minor child.
The aforesaid aspect has been consistently highlighted over the years in several judicial pronouncements of the Supreme Court and the High Courts including in the cases of Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1 SCC 840]; L.Chandran vs. Mrs. Venkatalakshmi and Anr. [AIR 1981 AP 1]; Smt. Surindar M.A. No.1732/2020 (Manoj Kumar Goswami Vs. Smt.Sudha Sharma & others) Kaur Sandhu vs. Harbax Singh Sandhu and Anr. [(1984) 3 SCR 422,]; Kamla Devi vs. State of Himachal Pradesh and Ors. [AIR 1987 HP 34]; Mrs. Elizabeth Dinshaw vs. Arvand M. Dinshaw and Anr. [(1987) 1 SCR 175]; Smt. Elokeshi Chakraborty vs. Sri Sunil Kumar Chakraborty [AIR 1991 Calcutta 176]; KirtikumarMaheshankar Joshi vs. Pradipkumar Karunashanker Joshi [AIR 1992 SC 1447]; Bimla Devi vs. Subhas Chandra Yadav “Nirala‟ [AIR 1992 Patna 76]; Sumedha Nagpal vs. State of Delhi & Ors. [(2000) 9 SCC 745]; MausamiMoitra Ganguli vs. Jayanti Ganguli [AIR 2008 SC 2262]; Gaurav Nagpal vs. Slumedha Nagpal [(2009) 1 SCC 42]; ShyamraoMarotiKorwate vs. Deepak KisanraoTekam reported as [(2010) 10 SCC 314]; and, Smt. Vibha vs. Sh. Rama Nand [2013 X AD (DELHI) 399].
In Halsbury’s Laws of England, Fourth Edition, Vol. 24, para 511 at page 217 it has been stated;”Where in any proceedings before any court the custody or upbringing of a minor is in question, then, in deciding that question, the court must regard the minor’s welfare as the first and paramount consideration, and may not take into consideration whether from any other point of view the father’s claim in respect of that custody or upbringing is superior to that of the mother, or the mother’s claim is superior to that of the father.”
Sometimes, a writ of habeas corpus is sought for custody of a minor child. In such cases also, the paramount consideration M.A. No.1732/2020 (Manoj Kumar Goswami Vs. Smt.Sudha Sharma & others) which is required to be kept in view by a writ-Court is `welfare of the child’. 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.” Law in the United States is also not different. In American Jurisprudence, Second Edition, Vol. 39; para 31; page 34, it is stated;”As a rule, in the selection of a guardian of a minor, the best interest of the child is the paramount consideration, to which even the rights of parents must sometimes yield”.
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In Saraswathibai Shripad v. Shripad Vasanji [AIR 1941 Bom 103], the High Court of Bombay stated;”It is not the welfare of the father, nor the welfare of the mother that is the paramount consideration for the Court. It is the welfare of the minor and the minor alone which is the paramount consideration.”In Rosy Jacob’s case (supra), the Hon’ble Supreme Court held 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 M.A. No.1732/2020 (Manoj Kumar Goswami Vs. Smt.Sudha Sharma & others) 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.
In Surinder Kaur Sandhu (Smt.) v. Harbax Singh Sandhu, [(1984) 3 SCC 698], the Hon’ble Supreme Court held that Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes father as a natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. [See also Elizabeth Dinshaw (Mrs.) v. Arvand M. Dinshaw, [(1987) 1 SCC 42] and, Chandrakala Menon (Mrs.) v. Vipin Menon (Capt), [(1993) 2 SCC 6]. In KirtikumarMaheshanker Joshi v. Pradip Kumar Karunashanker Joshi [(1992) 3 SCC 573] custody of two minor children was sought by father as also by maternal uncle. Mother died unnatural death and the father was facing charge under Section 498-A of IPC.
Children were staying with maternal uncle. Before this Court, both the children expressed their desire to stay with maternal uncle and not with the father. Considering the facts and circumstances and bearing in mind the case pending M.A. No.1732/2020 (Manoj Kumar Goswami Vs. Smt.Sudha Sharma & others) against the father and rejecting his prayer for custody and granting custody to the maternal uncle, the Hon’ble Supreme Court stated;”After talking to the children, and assessing their state of mind, we are of the view that it would not be in the interest and welfare of the children to hand over their custody to their father Pradipkumar. We are conscious that the father, being a natural guardian, has a preferential right to the custody of his minor children but keeping in view the facts and circumstances of this case and the wishes of the children, who according to us are intelligent enough to understand their well-being, we are not inclined to hand over the custody of Vishal and Rikta to their father at this stage”
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Construing the expression `welfare’ in Section 13 of Hindu Minority and Guardianship Act, 1956, liberally, the Hon’ble Supreme Court observed;”It is well settled that the word `welfare’ used in this section must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being”.The Hon’ble Supreme Court in recent judgment in the case of YashitaSahu vs. State of Rajasthan and others (Criminal Appeal No. 127 of 2020, decided on 20 t h January, 2020) has held as under :-
“14. Reference in this regard may be made to the judgment in Elizabeth Dinshaw (supra) wherein this Court was dealing with a case where the wife was an American citizen whereas the husband was a citizen of India. They got married in America and a child was born to them in the year 1978. In 1980, M.A. No.1732/2020 (Manoj Kumar Goswami Vs. Smt.Sudha Sharma & others) differences arose between the couple and the wife filed a petition for divorce.
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The jurisdictional court in America had dissolved the marriage by a decree of divorce on 23.04.1982 and by the same decree it was directed that the wife would have the care, custody and control of the child till he reaches the age of 18 years. The husband was given visitation rights. Taking advantage of the weekend visitation rights, the husband picked up the child from school on 11.01.1986 and brought him to India. The wife filed a petition under Article 32 of the Constitution of India before this Court. Not only was the petition entertained, but the same was allowed and we would like to refer to certain important observations of this Court in Para 8:”8. Whenever a question arises before a court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. We have twice interviewed Dustan in our chambers and talked with him. We found him to be too tender in age and totally immature to be able to form any independent opinion of his own as to which parent he should stay with. The child is an American citizen. Excepting for the last few months that have elapsed since his being brought to India by the process of M.A. No.1732/2020 (Manoj Kumar Goswami Vs. Smt.Sudha Sharma & others) illegal abduction by the father, he has spent the rest of his life in the United States of America and he was doing well in school there. In our considered opinion it will be in the best interests and welfare of Dustan that he should go back to the United States of America and continue his education there under the custody and guardianship of the mother to whom such custody and guardianship have been entrusted by a competent court in that country. We are also satisfied that the petitioner who is the mother, is full of genuine love and affection for the child and she can be safely trusted to look after him, educate him and attend in every possible way to his proper upbringing. The child has not taken root in this country and he is still accustomed and acclimatized to the conditions and environments obtaining in the place of his origin in the United States of America. The child’s presence in India is the result of an illegal act of abduction and the father who is guilty of the said act cannot claim any advantage by sme school in Pune. The conduct of the father has not been such as to inspire confidence in us that he is a fit and suitable person to be entrusted with the custody and guardianship of the child for the present.”
In para 17 of the aforesaid judgment, it is also M.A. No.1732/2020 (Manoj Kumar Goswami Vs. Smt.Sudha Sharma & others) observed as under:-
“17. It is well settled law by a catena of judgments that while deciding matters of custody of a child, primary and paramount consideration is welfare of the child. If welfare of the child so demands then technical objections cannot come in the way.
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However, while deciding the welfare of the child it is not the view of one spouse alone which has to be taken into consideration. The courts should decide the issue of custody only on the basis of what is in the best interest of the child.” In the light of above, this Court has to consider various factors while deciding the issue in hand. No hard and fast rule can be laid down and each case is to be decided on its own merits but the foremost and paramount consideration would be the welfare of the child. In the examination before the trial Court, both the sons have shown their affinity towards their maternal grandfather, grandmother and maternal uncle (respondents herein) rather than their father and have expressed that they would not like to live with their father. In view of aforesaid discussion, in the considered opinion of this Court, this appeal sans substance being devoid of any merit and is hereby dismissed. The impugned order passed by the trial Court is hereby affirmed.
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