Smt Akshi Yadav vs Pradeep Yadav on 22 June, 2017

Reserved

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Appeal from Order No. 103 of 2017

Smt. Akshi Yadav …………….Appellant

Versus

Pradeep Yadav ………. Respondent

Present: Mr. Navneet Kaushik, Advocate for the appellant
Mr. Tapan Singh, Advocate for the respondent.

Coram:- Hon’ble Rajiv Sharma, J.

Hon’ble Sharad Kumar Sharma, J.

Reserved on 05.06.2017
Decided on : 22.06.2017

Per – Hon’ble Sharad Kumar Sharma, J.

The philosophy of the Guardians and Wards Act, 1890
took its birth from the Roman era upto the present day, where a duty
has been casted upon the State to take care of class of persons, who
are incompetent or incapable to take care of themselves. This
imperfection was a consequence of their immaturity, lack of intellect
or lack of capacity or exercise of discretion which was on account of
their age. Under the Hindu mythology, it was the King, whose
responsibility was to protect the estate of infants. The said protection
as assigned to the Kings initially by usages is now being taken over
by the Courts in the exercise of their sovereign powers. Thus, the
basic intention and the paramount factor to be borne in mind is the
welfare of the child. No other surrounding circumstances would play
any significant role, while considering the application for the grant of
guardianship.

2. The appellant in the instant appeal is the wife of the
applicant (respondent herein) whose application under
Section 10
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read with Section 25 of Guardians and Wards Act, 1890 has been
allowed by the Additional Family Court, Roorkee, District Haridwar
whereby the custody of the minor son, namely Manvir has been
granted, to the respondent in the appeal, by the impugned judgment
dated 04.02.2017.

3. For a better scrutiny of the controversy involved, it
centers around, fact, as to whether the findings recorded in the
proceedings under
Section 125 Cr.P.C. for granting maintenance to
the wife, children or parents, could be taken into consideration to lay
down the foundation for considering the application under
Section 10
read with Section 25 of Guardian and
Wards Act, 1890, is the core
issue to answered?

4. The legislature in Chapter IX of the Code of Criminal
Procedure, 1973 while providing the provision of
Section 125
Cr.P.C. was a legislation whereby a person having sufficient means
neglects or refuses to maintain the class of family members given
under sub clauses a, b, c d of
Section 125 Cr.P.C. The aforesaid
section 125 Cr.P.C. only grants liberty to Magistrate, 1st Class on
being satisfied and establishment of neglect by any of the class of
relation mentioned in the sub clause of
Section 125 Cr.P.C., the
Court may allow the monthly allowance for maintenance of wife or
child, father or mother.

5. Under law, Section 125 Cr.P.C. happens to be an
independent provision and that too is contemplated under a Code of
Criminal Procedure, which lays down the modality and procedure to
be followed while dealing with the criminal proceedings. The issue
which will gradually crop up in the instant appeal is that when the
Courts are exercising its powers provided under
Section 125 Cr.P.C.
whether finding could be borrowed for the purposes of invoking
Section 10 read with Section 25 of Guardians and Wards Act, 1890,
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which has got altogether a different purpose for attaining social
objective and security to infants and unsecured persons.

6. The paramount consideration for the granting of
guardianship is the interest of the child whose wellbeing is required
to be protected by the Court. It is the duty on the Court. In the said
Act under
Section 10 which is procedural in nature, laying down the
manner in which application would be preferred and dealt with by
the person claiming the guardianship of a minor and to the manner in
which the proceedings before the Court would be governed and the
provisions
of the Code of Civil Procedure, 1882 has been made
applicable.

7. The principal section with which the controversy herein
is related to
Section 25 of the Act which deals with the title of the
guardian to have custody of ward.
Section 25 of the Guardians and
Wards Act, 1890 reads as under:-

“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 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 1882)
(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.”

8. Since the purposes of Cr.P.C. viz-a-viz the object of the
guardianship and wards being divergent to one-another, the
proceedings in both the cases ought to be held independently without
being influenced by any of the observations made in an adjudication
which has taken place, prior in time. It goes without saying that the
proceedings under
Section 10 read with Section 25 of the Guardians
and
Wards Act, 1890, being the civil in nature, under a special social
welfare statute, will have an overriding effect over the general
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proceedings or the findings recorded under Section 125 Cr.P.C.
which is criminal in nature.

9. In the case at hand, the marriage of the appellant and the
respondent was solemnized on 05.02.2007 at Arya Samaj Mandir in
accordance with rituals, prevalent amongst Arya Samaji. Out of the
wedlock, a male child ‘Manvir’ was born, who is a minor and for
claiming for custody under
Section 25 of the Guardians and Wards
Act, 1890, the respondent (husband) has filed the proceeding which
was registered as Misc. Case No. 08 of 2015 before the Additional
Family Judge, Roorkee, District Haridwar.

10. In the case at hand, the proceedings under Section 10
read with
Section 25 of the Guardians and Wards Act purports to be
in the shape of a civil proceedings, whereas, on the other hand,
proceedings for maintenance under
Section 125 Cr.P.C. is
contemplated under a Code of Criminal Procedure. The impugned
judgment passed by the Family Court on 04.04.2017, whereby the
custody of the minor child, Manvir, has been given to Pradeep Yadav
(Husband) on the premise that in the findings recorded under
Section
125 Cr.P.C., the respondent wife has taken a plea that she is suffering
from depression and has got no source of earning. Thus, the Court
has traveled to the fact that the aforesaid finding about having no
source of income as recorded in
Section 125 Cr.P.C. has been
borrowed for the purposes of deciding
section 25, on the ground that
once the wife (mother) has no source of earning, she will not be an
appropriate spouse, who could be able to maintain a minor child and
hence has drawn a conclusion that looking to the expenses to be met
towards school fee, dress, traveling, etc., wife would not be
financially capable to take care of her child and hence she has been
rendered as non-suited.

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11. This observation made, apart from the fact that the
observation and the stand taken by the respective parties for
establishing the case was within the ambit of
Section 125 Cr.P.C.
The learned Family Court ought not to have derived the aforesaid
fact and findings of
Section 125 Cr.P.C. order while considering the
parameters of the welfare of the child that even otherwise under the
law, the best savior of the child would be mother herself.

12. Apart from the derogation of the aforesaid grounds under
Section 125 Cr.P.C. proceedings coupled with the income capacity,
no other reason has been assigned by the Court for granting custody
of minor son Manvir to respondent by exercising powers under
Section 10 read with Section 25 of Guardians and Wards Act, 1890.
The learned trial court, while interpreting the statement recorded by
Pradeep Yadav as PW-1 has submitted his version that since he has
got a Photostate shop, the business which he has said to have been
inherited from his father, but contends that the same was closed in
the year 2003, in itself cannot constitute to come to a conclusion that
the income of the respondent was more viz-a-viz the income of the
mother. Apart from it, income of either of the party in matrimony is
irrelevant for considering the propriety of guardianship, as even
poorest of poor have right to procure child and shower his or her love
and affection.

13. The Division Bench of Calcutta High Court in the matter
of
The Gaya Muzaffurpur Roadways Co. and others vs. Fort
Gloster Industries Ltd. And another reported in AIR 1971
Calcutta 494 (V 58 C 112) in its para 19 and 21, while taking into
consideration, the impact of
Section 125 of the Indian Evidence Act
has held that the deposition of the findings recorded by the Criminal
Court cannot be used as a substantive evidence i.e. as an admission
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in a Civil Court. Para 19 and 21 is reproduced herein below for
convenience:-

“19. Mr. Banerjee next contended that in any event, the liability
of the carrier was limited by the consignment notes which
constituted the basis of the agreement for transport. Before we
proceed to examine the contention, it is necessary to consider
whether the consignment notes for the suit goods were at all
issued to or accepted by the company. We have seen that the
entire goods of the company were carried by fourteen lorries, and
for each consignment in one lorry, one set of such notes was
issued. Out of the same twelve consignment notes containing
endorsement of due receipt by the consignee have been exhibited
in this case, being exhibits A to A-11 and conditions of carriage
are printed overleaf. As to the suit goods carried by the two
lorries, no consignment note was produced. It is an admitted
position that the relevant consignment notes were not signed by
the company. The learned Judge came to the finding that no
consignment notes were issued to the company, firstly because
they were not filed in this suit, though stated to have been filed in
the criminal proceedings. D. W. 1 stated that the consignment
notes were prepared in five copies, three were sent with the driver
of the lorry concerned, one was retained in their office and one
was sent to the company. The P. W. 2 who had no personal
knowledge stated in her evidence that there was a note in her
office to the effect that no consignment note was issued to the
company but the office note was not produced and this was rightly
commented by Mr. Banerjee. The learned Judge also relied on the
deposition of D. W. 1 in the criminal court (Ext. 9) where he
stated that the original consignment note with three copies,
meaning four copies were handed to the driver. Mr. Banerjee took
serious objection as to the admissibility of such deposition in
criminal court. His contention is that there was no compliance of
the requirement under
Section 145 of the Evidence Act in that the
witness was not confronted with any particular statement which
again could only be admitted to shake the credibility of the
witness and could not be used by way of substantive evidence as
an admission. Mr. Banerjee relied on the decision in
Bal
Gangadhar Tilak v. Shrinivas Pandit, 19 Cal 729 (742) (AIR
1915 PC 7 (11) ) in which it was held that in absence of proof of
circumstances specified in
Section 33 of the Evidence Act, the
introduction and use in bulk in a civil suit of depositions of
witnesses recorded in a criminal trial for contradicting or
discounting the witnesses of the suit without placing the
particular matter or point for explanation in view of the
discrepancy, “were illegitimate”. Reliance was also placed on the
decision in Bhagawan Singh v. State of Punjab, AIR 1952 SC 214
(218) and it was observed in that case that the witness should be
afforded a reasonable opportunity of explaining contradictions
after his attention is drawn to them in a fair and reasonable
manner.

20. In our opinion, the above cases cited by Mr. Mitra are not
apposite to the facts of the present case. Here the certified copy of
the deposition in the criminal court, it appears, was filed after the
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evidence was closed and argument concluded and judgment was
reserved. Though the order sheet records that the D. W. 1 was
confronted with the same, it is not clear that this document was
proved in accordance with law as the original records do not
appear to have been produced or that the witness was recalled
and put on oath before confrontation which was made on the
same day the document was filed and there is no record of the
witness’s reaction on confrontation. The procedure adopted was
highly irregular and the learned Judge in the circumstances
committed an error in admitting the certified copy of the
deposition as substantive evidence and relying on it in holding
that no consignment notes were issued to the company. This
objection of Mr. Banerjee that Ext. 9 was in the circumstances
inadmissible must therefore be upheld.”

14. This Court feels that for grooming of a child, apart from
money, much more is required i.e. emotional and caring strength of
mother to a minor child for a better grooming which could only be
granted by mother, with whom, the child was initially residing.

15. For the purposes of better appreciation of the entitlement
of the applicant to the Miscellaneous Case No. 8 of 2015 under
Section 10 read with Section 25 of the Guardians and Wards Act,
1890, scrutiny of
Section 25 is necessarily required to be made.
Section 25 is confined to ensuring the wellbeing of the minor and the
custody of the guardian to whom it is to be vested. The learned court
below in its finding recorded while allowing miscellaneous
application No. 8 of 2015 has traveled beyond the pith and substance
of the
Section 25. The factors which have been taken into
consideration, for example;

(i) The issue of borrowing of money by the brothers and family
of the appellant from the respondent.

(ii) Failure of the appellant to prove the incidence of breaking
of window panes of the car of the brother of the appellant.

(iii) Failure to prove any atrocities having been exercised by the
respondent in a drunken stage.

(iv) Failure to prove the investment of Rs. 16.00 lakh incurred in
the marriage by the appellant’s family.

(v) Failure to prove as to how the appellant and her family had
invested in the education of the minor child, taking a
contrary view that the statement of the respondent that he
got the education of the appellant conducted at his house
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despite the fact that the same was not proved, has been
erroneously accepted by the Court.

16. Learned court below, based on hypothesis had wrongly
come to a conclusion that the members of the family of the
respondent have no love and affection to the minor Manvir, which is
absolutely an unthinkable proposition and not established by any
independent instance of atrocity.

17. All the fact, apart from what has been stated above,
which constituted to be the basis for granting custody of the Manvir
to the respondent by the impugned dated 04.02.2017 apart from
being perverse it happens to be without any plausible finding and on
a sound reasoning and without taking into consideration about the
wellbeing of the child, with whom it would be safeguarded and
protected better. Apart from it, this Court feels that the factors,
predominantly considered by the Court are not the factors which fall
within the ambit of
Section 10 read with Section 25 of the Guardians
and
Wards Act, 1890. As such, this Court feels that the order dated
04.02.2017 deserves to be quashed and the custody of minor Manvir
to be handed over to the appellant, the mother and natural guardian,
and further a direction is issued to the respondent-father to pay a sum
of Rs. 4000/- by 10th of each month, to be invested for the
maintenance and education for minor Manvir to upkeep of the child.

18. Thus, the appeal stands allowed for the aforesaid
reasons. The impugned judgment dated 04.02.2017 is hereby
quashed/set aside.

19. No order as to costs.

(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.)
22.06.2017
Mahinder

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