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Bholaram vs Smt. Sukala Bai on 1 May, 2018

THE HIGH COURT OF MADHYA PRADESH

MA-1896-2017
(BHOLARAM Vs SMT. SUKALA BAI)

Jabalpur, Dated : 01-05-2018

Shri Rahul Tripathi, learned counsel for the appellant.
Shri Shyam Yadav, learned counsel for the respondent.

Appellant has filed this appeal against the judgment dated
24.06.2017 passed by Principal Judge Family Court, District
Balaghat (M.P.) in MJC No.06/2017.

Appellant has filed an application under Sections 7, 10
25 of Guardian and Wards Act, 1890 for the custody of his
daughter Ku. Vaishali aged about 6 years and son Rishabh aged
about 1.5 years. He pleaded that the marriage of the appellant
was solemnized with Kavita @ Pavita on 29.04.2004. Kastura
Bai was the second wife of the appellant. She was died on
19.05.2016 due to illness. The children born form the second
marriage are living under the custody of their grand mother
(Nani) and she is aged about 75 years. She has no property.
Hence, she could not properly look after the children.

It is further pleaded by the appellant that the appellant has
been working as Laboratory Assistant in Government Service
and posted at Government High School, Devalgaon. He is
earning Rs.26410/- per month. Hence, he would properly look
after the children. He is also, the natural guardian.

Grand mother of the children did not file any reply before
the trial Court.

On behalf of the appellant, he filed his affidavit and
pleaded that his second wife died due to ailment and he is the
father of the children i.e. son and daughter. He is working as
Laboratory Assistant in Government Service and posted at
Government High School, Devalgaon. He is capable to maintain
the children. First wife of the appellant Kavita @ Pavita also
filed her affidavit. She deposed that she agreed for the second
marriage of the appellant as there were no children born from
her, hence, she permitted the appellant to perform second
marriage, with the second wife Kastura Bai two children were
born. She died due to some ailment. Kavita @ Pavita pleaded
that she would look after the children and provide them proper
education.

The trial Court dismissed the application on the ground
that the appellant married with another lady and she would not
look after the children properly. Hence, it is not proper to give
the custody of children to the appellant.

Being a father the appellant is the natural guardian of the
children. It is well settled principle of law that welfare of
children is the paramount consideration in considering
application for custody of minor children. The Apex Court in
the case of Purvi Mukesh Gada Vs. Mukesh Popatlal Gada
and another (2017) 8 SCC 819 has held as under:-

10.5. The High Court has discussed the law on
custody of children and explained the ‘welfare
principle’, which is the paramount consideration while
deciding custody matters is to see where the welfare
of children lies. Applying this principle, the direction
is given to restore the custody of the children to the
respondent after the end of academic term in April or
May 2016.

11. We may say at the outset that though the
‘welfare principle’ is correctly enunciated and
explained in the impugned judgment, no reasons are
given as to how this principle weighed, on the facts
and circumstances of this case, in favour of the
respondent. Instead two main reasons which have
influenced the High Court are: (i) earlier detailed
orders are passed by the Additional ACMM allowing
the respondent to retain the custody; and (ii) the
appellant here had not given access of children to the
respondent even during weekend, in spite of orders
passed by the High Court.

12. After hearing the counsel for the parties at
length, we are of the opinion that the matter is not
dealt with by the High Court in right perspective.
Before supporting these comments with our reasons, it
would be apposite to take note of certain
developments from 17-6-2015, the date on which the
respondent had himself handed over the children to
the appellant, till the passing of the orders by the High
Court. It is also necessary to state the events which
took place during the pendency of these proceedings.

7. Section 7 of Guardians and Wards Act
1890 reads as under:-

7. Power of the Court to make order as to
guardianship.

(1) Where the Court is satisfied that it is for the
welfare of a minor that an order should be made

(a) appointing a guardian of his person or
property or both, or

(b) declaring a person to be such a guardian the
Court may make an order accordingly.

(2) An order under this section shall imply the
removal of any guardian who has not been appointed
by will or other instrument or appointed or declared
by the Court.

(3) Where a guardian has been appointed by will or
other instrument or appointed or declared by the
Court, an order under this section appointing or
declaring another person to be guardian in his stead
shall not be made until the powers of the guardian
appointed or declared as aforesaid have ceased under
the provisions of this Act.

8. The aforesaid section has been considered by
the Apex Court in the case of Ruchi Majoo Vs.
Sanjeev Majoo, (2011) 6 SCC 479 and has held as
under:-

Interest and welfare of the minor being
paramount, a competent court in this country is
entitled and indeed duty bound to examine the matter
independently, taking the foreign judgment, if any,
only as an input for its final adjudication. Decisions of
this Court in In Dhanwanti Joshi v. Madhav Unde
1998(1) SCC 112 and Sarita Sharma v. Sushil
Sharma (2000) 3 SCC 14 (supra) clearly support
that proposition.

In the present case the respondent is the grand mother
(Nani) of the children, who is aged about 75 years. There is no
evidence on record about her financial status. She did not
appear before the Court neither she filed reply or tendered her
evidence. Merely, on the basis of apprehension the trial Court
has rejected the application of the appellant on the ground that
the appellant had re-married and the first wife would not look
after the children.

The first wife Kavita @ Pavita is present before the Court
along with the appellant. She has stated that she would look
after the children very well.

In this view of the matter, appeal filed by the appellant is
hereby allowed. The impugned judgment and decree passed by
the trial Court is hereby set aside. Suit filed by the appellant is
hereby allowed. It is ordered that the respondent shall hand over
the custody of children Ku. Vaishali and Rishabh to the
appellant.

The appellant shall permit the respondent to meet with the
children once in a month.

No order as to costs.

(S.K.GANGELE) (SMT. ANJULI PALO)
JUDGE JUDGE
shabana
Digitally signed by
SHABANA ANSARI
Date: 2018.05.02
13:06:50 +05’30’

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