Smt. Anita vs Santosh Kumar Garg on 9 November, 2017

THE HIGH COURT OF MADHYA PRADESH
MA-2989-2010

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(SMT. ANITA Vs SANTOSH KUMAR GARG)

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Jabalpur, Dated : 09-11-2017

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Shri Siddharth Sonkar, learned counsel for the appellants.

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Shri Rakesh Jain, learned counsel for the respondent.

Arguments heard.

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Appellants have filed this appeal against the order dated
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13.05.2010 passed in Miscellaneous Civil Case No.01/2010. The
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respondent filed an application before the trial Court for custody
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of his minor sons Saurabh and Sagar under the Provisions of
Guardians and Wards Act.

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It is an admitted fact that the marriage of the appellant No.1
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and the respondent was solemnized in accordance with Hindu
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rituals. From their wedlock two male children were born. After
some time, the relationship between the husband and wife
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became deteriorated.

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The respondent filed an application before the trial Court
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for grant of guardianship of both the children, who were at that
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time aged near about ten years and six years. He pleaded that
after marriage, relationship of both the appellant No.1 and
himself (respondent) strained and the appellant No.1 left his
house and she had been living separately. The appellant No.1 had
no sufficient means of her livelihood and she was not able to
maintain both the children. Hence, both the children be given in
his custody. The trial Court allowed the application vide order
dated 13.05.2010.

Learned counsel for the respondent has informed this Court
that the respondent filed a petition for divorce that was allowed
and the appeal is pending before this Court.

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The appellant No.1-wife and two children filed this appeal
before this Court against the order of the trial Court. This Court

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vide interim order dated 08.07.2010 allowed the appellant No.1
to keep the custody of both the children with her. Since then both
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the children are living with the appellant No.1.

Both the children were called before this Court on
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02.08.2011. They were present before the Court. They stated that
they wanted to live with their mother-appellant No.1. The Court
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has recorded the statements of the children in the order sheet
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dated 02.08.2011, which reads as under:

“Appellant Smt. Anita is preset alongwith
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appellant No.2 Sourabh Garg and appellant No.3
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Sagar Garg. We have heard both the children. At
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present both the appellants Sourabh and Sagar have
expressed their wish to live with their mother. When
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Sourabh was asked whether his father love him or not,
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he stated that he used to beat him. The same question
was repeated with Saggar, who stated that he once
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went to her father but not given the answer of the
aforesaid question. It is broutht to our notice by the
appellant Smt. Anita that when she was having
pregnancy of two months, she was deserted from the
house by the respondent and appellant No.3 Sagar took
birth at her parents house. She has also stated that she
is dependent on her mother who is having small
ariculture. So far as Sourabh Garg is concerned, it is
stated that he is studying but he could not narrate his
school name or the name of teacher. He also could not

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gave answer in respect of the marks obtained by him.
So far as Sagar Garg is concerned, he stated that he is

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studying in Star Public School. “

The Apex Court in the case of Thrity Hoshie Dolikuka vs
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Hoshiam Shavaksha Dolikuka, AIR 1982 SC 1276 has
considered the provisions of Guardians and Wards Act and has
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held as under in regard to custody of minor child:

“The principles of law in relation to the custody
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of a minor appear to be well-established. It is well
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settled that any matter concerning a minor, has to be
considered and decided only from the point of view of
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the welfare and interest of the minor. In dealing with a
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matter concerning a minor, the Court has a special
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responsibility and it is the duty of the Court ot consider
the welfare of the minor and to protect the minor’s
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interest. In considering the question of custody of a
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minor, the Court has to be guided by the only
consideration of the welfare of the minor.”

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The principle of law is that the Court has to consider the
point of welfare and interest of the minor and protect the minor’s
interest. In the present case, elder son is at present aged about 17
years, he shall attain majority after a period of one year and the
younger son may be aged about 13-14 years. After birth, both the
children have been living with the appellant No.1-mother.

In view of the aforesaid facts of the case, in view of the
statement made by both the children before this Court on
02.08.2011 and the fact that from birth both the children have
been living with their mother, in our opinion, it would not be just

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and proper and in the interest of the children to give the custody
of the children to the respondent; neither it would be in the

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welfare of the children. Consequently, the appeal filed by the
appellants is hereby allowed and the impugned order dated
13.05.2010 is hereby set aside. Pr
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(S.K. GANGELE) (ANURAG SHRIVASTAVA)
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JUDGE JUDGE
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Digitally signed by VINOD
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KUMAR TIWARI
Date: 2017.11.09 15:07:15
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+05’30’
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