Smt.Netu Sharma vs Shayamkarna Sharma on 9 November, 2017

THE HIGH COURT OF MADHYA PRADESH
MA-4457-2008

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(SMT.NETU SHARMA Vs SHAYAMKARNA SHARMA)

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Jabalpur, Dated : 09-11-2017

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None appears on behalf of the appellants even the case is
called in second round.
None for the respondent also. Pr

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Appellants have filed this appeal against the order dated
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03.09.2008 passed in Civil Suit No.01/2007. The respondent filed
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an application for custody of his minor son Shiva Sharma under
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the Provisions of Guardians and Wards Act.

Admitted facts of the case are that marriage between the
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appellant No.1 and the respondent was solemnized with Hindu
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rituals in December, 2001. From their wedlock a son was born on
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05.02.2005. After some time, the relationship between the
husband and wife became deteriorated and it is alleged that
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appellant No.1 remarried with another person Krishna Murari.
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The son is living with the appellant No.1.
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The respondent filed an application before the trial Court
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for grant of guardianship of the son on the ground that he is the
father of the child and he is earning Rs.6000/- per month.
Appellant No.1 had remarried with Krishna Murari Tiwari.
Hence, the future of the child is not protected. The trial Court
ordered custody of child in favour of the respondent.

This Court granted interim stay of the order passed by the
trial Court vide order dated 16.03.2009. Since then the minor
child is with the appellant No.1. At the time of passing of the
order by the trial Court, the age of the child-appellant No.2, who
is the son, was near about three years. Near about ten years have
been passed since then and his age is near about 13 years now.

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Since then, the son is living with the appellant No.1.

This Court directed the child to remain present before the

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Court to find out the observation of the child. The child appeared
before the Court on 27.06.2011 and it is stated by him that he has
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been living with the mother and he refused to recognize the
respondent-father. This Court observed the act of the appellant
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No.2 and noted the same in the order sheet dated 27.06.2011,
which reads as under:

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“Child appellant No.2 has been produced by his
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mother appellant No.1. He has stated that his name is
Nishant. On being asked, it was explained by appellant
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No.1 that earlier his name was Shiva which was
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assigned to the child by his father, but subsequently
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mother has changed the name of appellant No.2 as
Nishant. On being asked from the child where he is
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residing, it is stated by hi that he is residing withfather
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and mother and on being asked the name of his father,
it is staed byhim that the nameof his is Rajkumar.

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Respondent who is present in the Court is also shown
to the child but the child stated that he does not know
him. Asking about his father, it is stated by him that his
father is at home. About wishes of the child with whom
the child wants to reside, it is stated by the child that he
wants to live with his mother. Aforesaid statement is
taken on record.”

The Apex Court in the case of Thrity Hoshie Dolikuka vs
Hoshiam Shavaksha Dolikuka, AIR 1982 SC 1276 has
considered the provisions of Section 7 of Guardians and Wards

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Act and has 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
settled that any matter concerning a minor, has to be
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considered and decided only from the point of view of
the welfare and interest of the minor. In dealing with a
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matter concerning a minor, the Court has a special
responsibility and it is the duty of the Court ot consider
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the welfare of the minor and to protect the minor’s
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interest. In considering the question of custody of a
minor, the Court has to be guided by the only
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consideration of the welfare of the minor.”

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The principle of law is that the Court has to consider the
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point of welfare and interest of the minor and protect the minor’s
interest. In the present case, the child-appellant No.2 is presently
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aged near about 13 years. He has been living with his mother. He
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did not make any complaint about the behaviour of the mother or
the fact that he has not been treated properly. He is one of the
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appellant of the case. When he appeared before the Court, he
refused to recognize the respondent-father.

In this view of the matter, in our opinion, it would not be in
the interest of the child-appellant No.2 or there would not be any
benefit in regard to welfare of the child if his custody is given to
the father. Consequently, the appeal filed by the appellants is
hereby allowed and the impugned order dated 03.09.2008 is
hereby set aside.

(S.K. GANGELE) (ANURAG SHRIVASTAVA)
JUDGE JUDGE

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Digitally signed by
VINOD KUMAR TIWARI
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Date: 2017.11.09
15:05:47 +05’30’
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