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Child custody to his natural guardian and father

Rajasthan High Court

Tara Chand Mavar vs Smt. Basanti Devi on 1 November, 1988
Equivalent citations: 1988 WLN UC 500
Author: I.S. Israni
Bench: M Sharma, I Israni

I.S. Israni, J

1. This appeal under Section 19 of the Family Court Act, 1984 has been filed against the judgment dated July 9, 1987 passed by learned Judge, Family Court, Jaipur in Civil Case No. 81/86 by which he rejected the petition filed by the appellant under Section 7 of Guardian and Wards Act, 1890 for custody of his minor son Rinku.

2. Briefly the facts as stated in the appeal are that the appellant and his parents and brothers constitute a joint Hindu family and reside together in their house at Jaipur. Besides mother and father of the appellant, he has five brothers and one sister. The appellant who is eldest son in the family is B.Com. and is employed Junior Accountant in P. and T. Department, Jaipur. The marriage of the parties took place on May 10, 1971 and son Rinku was born from their wedlock on June 5, 1981. It is stated that respondent is a woman of hot temperament and was pressing the appellant to break his relationship of the joint Family and reside separately with her. Since the appellant refused to do so the respondent left the appellant’s house in the month of December, 1983 along with her minor son Rinku and has been residing in village Govindpura Tehsil Sanganer.

3. The respondent had filed an application under Section 125 Cr.PC for grant of maintenance of herself and for her minor son Rinku in the Family Court, Jaipur. This petition was registered as Criminal Petition No. 161 of 1986. It is stated that respondent made a false allegation in the said proceedings that she was beaten by the appellant and that Kerosene oil was sprinkled on her body by the appellant but on account of non-availability of match box, she could not be burnt. She claimed maintenance for herself at rate of Rs. 400/- and Rs. 200/- for herself and her minor son respectively. In the said petition the Court disallowed any maintenance to the respondent but maintenance of Rs. 100/- was granted for child Rinku vide judgment dated March 12, 1986.

4. The appellant filed a petition under Section 7 of the Guardian and Wards Act for custody of his minor son Rinku stating that he was entitled to have custody of a child being his natural guardian. This petition was dismissed by the trial court vide his judgment dated July, 9, 1987 and this appeal has been filed against the same.

5. The contention of Shri R.S. Rathore, learned Counsel for the appellant is that it is in the interest of the minor child Rinku to be in custody of his father and natural guardian. It is contended that the respondent is an un-educated lady living in a village which does not have facility of any School or hospital and the village does not have even Pacca Road. It is stated that even though the child is now more than 7 years old he has jus( joined 1st class and has to walk about 5 to 6 Kilometers for going to village Sitapur where the school is situated. It is also pointed out that none of the family members of respondent including her parents and brothers are educated. It is pointed out that in her statement recorded by the respondent in the trial court, she has admitted that her brother Chhote Lal is taxi-driver and another brother Moolchand drives Car in an Office It is also contended that she has no sources of income and she has clearly stated in her statement that she lives separately from her brothers and she will bring up the child from the maintenance amount put by the appellant for maintenance of the child. It is further pointed out that the appellant has clearly stated in his statements and pleadings that younger brother of appellant Prem Chand has appeared in M. Com. final examination and is working as an Asstt. in the Life Insurance Corporation of India. His third brother Amarchand is studying in Third Year M.B.B.S His two younger brothers namely Naresh Chadd and Sharad Chand are 15 and 13 years respectively. Naresh Chand is studying in Secondary class in Poddar School Gandhi Nagar Jaipur and Sharad Chand is in 7th Class studying in Central School Military Cantt. The only sister of the appellant aged 10 years is also studying in 6th Class in Central School Military Cantt., Jaipur. The appellant’s father is in service in Indian Railway. It it therefore, contended that there is no propsr atmosphere for up bringing of minor child Rinku who is presently living in a family where there is hardly any educated person. It is pointed out that the appellant deems it the duty to look after his old parents and also his younger brothers and sister and is not willing to live separately from his family and live separately with the respondent.


6. The contention of Shri Gupta, learned Counsel for the respondent is that it is in the interest of minor child that he continues to live with his mother with whom he has been living since his birth. It is pointed out that the child is receiving education in a school which has good teachers and his report card shows that he is doing well. It is also pointed out that in the trial court the learned Judge enquired from the child Rinku, who stated that he wants to live with his mother. It is stated that he did not recognise his father he even did not know his name properly. It is also stated that since the appellant has filed proceedings for divorce under the provisions of Hindu Marriage Act, it will not be in the interest of the child to live with his father.

7. We have heard both the learned Counsel as also perused the judgment of the trial court and the statements recorded of the parties.

8. It is evident from the facts discussed above that the appellant is anxious to bring up his son in such a manner that he receives proper education and gets all opportunities to develop his personality. In such cases the paramount consideration is welfare of the child. All the facts and circumstances have, therefore, been examined from this angle alone. It is evident that the family members of the respondent are not properly educated and the child has to live in a village where there is no school or even a hospital. Even though he is more than 7 years he has only joined 1st class and has to go to a different village for study. For small child like this going daily to a school which is situated quite for away from the place where he lives would be a difficult proposition. The respondent admittedly has no independent income as has been stated by her in her statement. She admits that she will bring up the child from the amount obtained for the maintenance of the child from the appellant. She her self also is an un educated lady, the appellant is educated person in whose family there is proper atmosphere for education and all the brothers and sister of the appellant are getting good education as has been stated above. It is natural desire of a father to see that his son receives good education and is is brought up in a manner that there is atmosphere to allow the child to develop his personality.

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9. Section 6 of the Hindu Minority and Guardianship Act, 1956 (for short ‘the Act of 1956’) deals with natural guardian of a Hindu Minor Child, which reads as under:

Section 6. Natural guardians of a Hindu Minor–The natural guardians of a Hindu minor, in respect of the minor person and in respect of the minor’s property (excluding his or her undivided interest to joint family property), are–

(a) in the case of boy or an unmarried girl the father, and after him, the mother:

Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother–

10. It is therefore, clear that when a minor has not completed the age of 5 years he shall ordinarily be with the mother and after completion of 5 years the natural guardian is father.

11. Section 13 of the Act of 1956, provides the considerations which have to be kept in view in regard to appointment of guardian, which reads as under:

13. Welfare of minor to be paramount consideration–

[1] In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration;

[2] No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among the Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.

12. Section 7 of the Guardian and Wards Act, 1890 (for short ‘the Act, 1890’) empowers the court to make order as to guardianship. This order be passed keeping in view the welfare of a minor. Section 17 of the Act of 1890, lays down the matters to be considered by the Court in appointing the guardian, which reads as under:

17. Matters to be considered by the Court in appointing guardian–

[1] In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor in subject, appears in the circumstances to be for the welfare of the minor;

[2] In considering, what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property;

[3] If the minor is old enough to form an intelligent preference, the Court may consider that preference.

13. It is, therefore, evident that while considering the appointment of a guardian the paramount consideration is welfare of the minor and the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness to the relationship with the minor. It is also provided that the Court may consider the preference of the minor if he is old enough to form an intelligent opinion for the same. Reference may be made to the case of Thirty Hoshie Dolikula v. Hoshiam Shavaksha Dolikula , in which it was held by the Apex Court that “It is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the Court has a special responsibility end it is the duty of the Court to consider the welfare of the minor and to protect the minor’s interest. In considering the question of a custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor.

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14. The trial court thought it fit of allow the child Rinku in the custody of the mother on the sole sentimental consideration that as the child has been living with his mother since his birth and the child also wants to live with his mother. The learned Judge thought it fit to allow the child to remain in custody of his mother. In our considered opinion no sentimental consideration should come in the way of deciding the custody of the child where the sole and only consideration is welfare of minor child. Minor child of 7 years cannot form any intelligent opinion about his own welfare and to give preference in whose custody the child wants to live. Therefore, merely because the minor child Rinku expressed preference to live with his mother, this cannot be said to be a proper consideration for allowing the child to remain in custody of his mother. The Court has carefully to see that sentimental consideration should not prevail over obvious welfare of a minor. The expression “welfare of the minor” has very wide meaning. It has several facts including financial, educational, physical, moral and religious welfare. Therefore, due regards should also be given to the affection and capacity for building up a good carreer for the child.

15. In the present case, when a child starts going to school at the age of 4/5 years, minor Rinku has started going to school when he become 7 years old In our considered opinion it will not be in the welfare of the child if he is allowed to remain with his mother who stays in a village where are no proper facilities for education, medical care. Apart from this atmosphere in the family makes lot of contribution in the all round development of the child which minor Rinku will not be able to get while living with his mother. It is evident that since the members of the family of the respondent are not themselves well educated, there will not be proper atmosphere for all round development of the minor child. Apart from this education also needs financial backing which the respondent is not in position to give. It may also be pointed out that none of the brothers of the mother have come forward to state before the Court that they are prepared to support the child financially and provide him proper education and other necessities. There is nothing on record to show that the appellant is not a fit person to be a guardian of his minor son Rinku. No allegations against his character has been made and merely because a petition for divorce has been filed by the appellant against the respondent who is not prepared to go and live with her husband, it cannot be said that the appellant is not a fit person to be given custody of his child he is anxious to get. We do not find anything in the character of the appellant which may disentitle him from getting custody of his minor son.

16. We are, therefore, of the considered opinion that it will be in the interest of the welfare of minor Rinku to be in custody of his natural guardian and father, the appellant.

17. In the result, the appeal is allowed and the order of the trial court is set aside. We give 4 weeks time to the respondent to hand over the custody of minor Rinku to the appellant Shri Tara Chand Mavar. In case the custody is not handed within the time allowed by this Court steps will be taken under Section 25(2) of the Act of 1890. No order as to costs.

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