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Bharatha Raja vs Subbulakshmi on 9 August, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated: 09.08.2018

RESERVED ON : 20.06.2018
DELIVERED ON: 09.08.2018

CORAM

THE HONOURABLE MRS.JUSTICE J.NISHA BANU

C.M.A(MD)No.1340 of 2012
and
MP.(MD).No.1 of 2012

Bharatha Raja …Petitioner/ Appellant

Vs

Subbulakshmi … Respondent/Respondent

PRAYER:- Civil Miscellaneous Appeal is filed under Section 47 of Guardian and
Wards Act, 1890, against the judgment and decree dated 21.07.2010 passed in
G.W.O.P.No.12 of 2009 by the District Judge, Sivagangai.

!For Appellant :Mr.A.Rahul
^For Respondent:Mr.K.Sekar

:JUDGMENT

The appellant has filed this Civil Miscellaneous Appeal against the
judgment and decree dated 21.07.2010 passed in G.W.O.P.No.12 of 2009 by the
District Judge, Sivagangai.

2. The brief facts of the case are as follows:

The appellant would aver among other things that the respondent
herein is the wife of the appellant herein and their marriage took place on
22.11.2001. Out of their wedlock, minor kathirpandian was born to them on
19.06.2003. In the mean while, due to difference of opinion, the respondent
herein left the matrimonial home of the appellant. Consequently, the
appellant herein filed H.M.O.P.No.03 of 2008 before the Family Court, Madurai
for restitution of conjugal rights and the respondent herein filed
H.M.O.P.No.22 of 2008 before the Sub-Court, Sivagangai, seeking divorce from
the appellant. Seeking the custody of the minor child, the appellant
preferred G.W.O.P.No.12 of 2009 before the District Court, Sivagangai. The
Court below after scanning through the oral and documentary evidence,
dismissed the petition preferred by the appellant herein which led to filing
of the present Civil Miscellaneous Appeal.

3. The learned counsel appearing for the appellant submitted
that he is the biological father of the minor child and therefore, he is
entitled to get the custody of his minor child. He further submitted that it
is wrong on the part of the Court below to come to the conclusion that the
child is suffering from neurological defect and therefore, the
respondent/mother alone could take care of the child and therefore, he prays
for allowing this appeal by setting aside the order of the Court below.

4. The learned counsel appearing for the respondent submitted
that the paramount interest of the minor child must be the basis for the
grant of lawful custody by the Court. As per Section 17(3) of the Guardian
and Wards Act, the Court has ample power to find out the truth and also to
ascertain the facts of the case. He further submitted in order to escape
from the liability to pay maintenance to the minor child, the respondent
filed the above G.W.O.P and the same was also dismissed by the Court below
after taking note of the factual aspects and therefore, he prayed for
dismissal of the above CMA.

5. Heard the learned counsel appearing for the respective parties
and perused the materials available on record and considered the relevant
judgments produced on both sides.

6. The short question to be decided in this civil miscellaneous
appeal is whether the appellant entitled to hold the custody of the minor
child?

7. In this connection, it is useful to refer Section 17 of the
Hindu Minority and Guardianship Act,1956 :-

(1) Section 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 is subject, appears in the
circumstances to be for the welfare of the minor.

(emphasis supplied)
(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.

(4) Sub-S.(4) omitted by Act 3 of 1951, S.3 and Sch.

(5) The Court shall not appoint or declare any person to be a guardian
against his will.

(emphasis supplied)”

8. According to the said provision, the welfare of the minor
should be considered as paramount consideration for entrusting the custody of
the minor child to anyone. The said provision makes it clear that while
deciding the question as to which parent, the care and control of a child
should be committed, the first and the paramount consideration is the welfare
and interest of the child and not the rights of the parents under a statute.

9. That apart, the law relating to custody of minors has received
an exhaustive consideration of this Court in a series of pronouncements. In
Gaurav Nagpal v. Sumedha Nagpal[1] the principles of English and American law
in this regard were considered by this Court to hold that the legal position
in India is not in any way different. Noticing the judgment of the Bombay
High Court in Saraswati Bai Shripad Ved v. Shripad Vasanji Ved[2]; Rosy Jacob
v. Jacob A Chakramakkal[3] and Thirty Hoshie Dolikuka v. Hoshiam Shavdaksha
Dolikuka[4] this Court eventually concluded in paragraph 50 and 51 that:
?50. That when the Court is confronted with conflicting demands made by the
parents, each time it has to justify the demands. The Court has not only to
look at the issue on legalistic basis, in such matters human angles are
relevant for deciding those issues. The Court then does not give emphasis on
what the parties say, it has to exercise a jurisdiction which is aimed at the
welfare of the minor. As observed recently in Mousmi Moitra Ganguli?s case
the court has to give due weightage to the child?s ordinary contentment,
health, education, intellectual development and favourable surroundings but
over and above physical comforts, the moral and ethical values have also to
be noted. They are equal if not more important than the others.

51. The word ?welfare? used in section 13 of the Act has to be construed
literally and 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. Though the provisions of the special statutes which governs the
rights of the parents and guardians may be taken into consideration, there is
nothing which can stand in the way of the Court exercising its parens patriae
jurisdiction arising in such cases.?

10. The views expressed in Para 19 and 20 of the report in Mousmi
Moitra Ganguli v. Jayant Ganguli would require special notice. In the said
case it has been held that it is the welfare and interest of the child and
not the rights of the parents which is the determining factor for deciding
the question of custody. It was the further view of this Court that the
question of welfare of the child has to be considered in the context of the
facts of each case and decided cases on the issue may not be appropriate to
be considered as binding precedents. Similar observations of this Court
contained in para 30 of the Report in Sheila B. Das v. P.R. Sugasre would
also require a special mention here.

11. In the case on hand, the minor child is with her mother as
soon as the difference of opinion evolved between them. No doubt, the
respondent is the biological father of the minor child. But, the disturbing
feature in this case is he married another woman through her he is having a
female child. On this aspect, no reason flows from the side of the appellant
nor averred in the affidavit or pleaded before this Court. Thus, one thing
is clear that the appellant herein never bothered about the future of the
children and his wife. After filing maintenance petition, the respondent has
come forward with a petition claiming the custody of the minor child. The
attitude of the appellant is nothing but to defeat the maintenance petition
filed by the respondent and the appellant wants to wriggle out from his
dutiful responsibilities.

12. On the subject matter of the issue, I also gain support from
the judgment of the Honourable Supreme Court cited by the learned counsel for
the respondent, reported in CDJ 2008 SC 1566 in between Nil Ratan Kundu
Another Vs. Abhijit Kundu, it has been laid down as follows:-

“47. We observed:

“The principles of law in relation to the custody of a minor child are
well settled. It is trite that while determining the question as to which
parent the care and control of a child should be committed, the first and the
paramount consideration is the welfare and interest of the child and not the
rights of the parents under a statute. Indubitably the provisions of law
pertaining to the custody of child contained in either the Guardians and
Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956
(Section13) also hold out the welfare of the child are predominant
consideration. In fact, no statute on the subject, can ignore, eschew or
obliterate the vital factor of the welfare of the minor. The question of
welfare of the minor child has again to be considered in the background of
the relevant facts and circumstances. Each case has to be decided on its own
facts and other decided cases can hardly serve as binding precedents insofar
as the factual aspects of the cases are concerned. It is, no doubt, true that
father is presumed by the statutes to be better suited to look after the
welfare of the child, being normally the working member and head of the
family, yet in each case the Court has to see primarily to the welfare of the
child in determining the question of his or her custody. Better financial
resources of either of the parents or their love for the child may be one of
the relevant considerations but cannot be the sole determining factor for the
custody of the child. It is here that a heavy duty is cast on the Court to
exercise its judicial discretion judiciously in the background of all the
relevant facts and circumstances, bearing in mind the welfare of the child as
the paramount consideration.”

20. It is also further submitted by the learned counsel for the
respondent in respect of wishes of the minor, quoted in a Judgment of Delhi
High Court, reported in 25 (1984) DLT 186 in between Prabhati Mitra Vs.
D.K.Mitra, which would go to show that if the minor is of an age fit enough
to express an opinion, the Court has the duty to consider the application on
merits before it combining with the likes of the minor and the welfare of the
minor has to be considered in order to promote the welfare of the child.?

13. Apart from the above, there is no whisper or denial about the
disease suffered by the appellant in the affidavit nor his pleadings. The
respondent has categorically stated that her father is a retired Railway
Station Master and getting a decent pension to take care of the child.
However, it does not mean that the appellant need not pay any maintenance for
his wife and child. As earlier pointed out, subsequent to the divorce and
dismissal of the guardian petition, the appellant married another woman and
having one female child. The subsequent development of the events would also
disentitle the appellant to get custody of the minor child. All would go to
show the character and attitude of the appellant herein. It is the specific
contention of the respondent that her son is suffering from Epilepsy and the
same accepted by the appellant and he was treated by the Neurophysician in
Madurai and a medical history has also been produced before this Court. From
the above, it follows that an order of custody of minor children either under
the provisions of the Guardians and Wards Act, 1890 or Hindu Minority and
Guardianship Act, 1956 is required to be made by the Court treating the
interest and welfare of the minor to be of paramount importance. It is not
the better right of the either parent that would require adjudication while
deciding their entitlement to custody. The desire of the child coupled with
the availability of a conducive and appropriate environment for proper
upbringing together with the ability and means of the concerned parent to
take care of the child are some of the relevant factors that have to be taken
into account by the Court while deciding the issue of custody of a minor.
What must be emphasized is that while all other factors are undoubtedly
relevant, it is the desire, interest and welfare of the minor which is the
crucial and ultimate consideration that must guide the determination required
to be made by the Court. Back to the conclusion that the welfare of the
child is paramount importance and in other words, in the interest of the
minor child, this is the fittest case where the minor child can be granted to
the mother. This Court is also conscious of the fact that each and every case
has to be decided on its own factual aspect of the matter. Such situation is
absolutely warranted in the present case in the light of the detailed
judgment of the Apex Court Judgment made in 2013 (1) MWN (Civil) 699, Gaytri
Bajaj Vs. Jiten Bhalla and therefore, custody of the child is granted to the
respondent herein.

14. In the light of the factual aspect of the matter coupled with
the judgment cited supra, I have no hesitation to confirm the fair and
decreetal order dated 21.07.2010 made in G.W.O.P.No.12 of 2014 passed by the
learned District Judge, Sivagangai.

In the result, the Civil Miscellaneous Appeal is dismissed. No
costs. Connected miscellaneous petition is closed.

To,
The District Court,
Sivagangai District,
Sivagangai.

To

The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.

To
THE HON’BLE MRS.JUSTICE.J.NISHA BANU

Most respectfully submitted,

(S.Selvam)
P.S. to JNBJ
.

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