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Gulshan And Another vs Shahjahan on 23 September, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R

Reserved on: 5.8.2019

Delivered on: 23.9.2019

Court No. – 34

Case :- FIRST APPEAL No. – 625 of 2015

Appellant :- Gulshan And Another

Respondent :- Shahjahan

Counsel for Appellant :- Abhishek Kumar

Counsel for Respondent :- Manoj Yadav

Hon’ble Sudhir Agarwal,J.

Hon’ble Rajeev Misra,J.

(Delivered by Hon’ble Rajeev Misra,J)

1. This is an appeal under Sectionsection 19 of Family Courts Act, 1955 (hereinafter referred to as ‘Act 1955’) filed by defendants appellants, challenging judgement dated 7.11.2015, passed by Principal Judge (Family Court), Ballia, in Misc. Case No. 18 of 2004 (Shahjahan Vs. Jehangir) whereby, plaintiff-respondent Shahjahan has been appointed as guardian of minor Anjuman under Sectionsection 8 of Guardians and SectionWards Act, 1890 (hereinafter referred to as ‘Act 1890’).

2. We have heard Mr. Abhishek Kumar, learned counsel for defendant-appellants and Mr. Manoj Yadav, representing plaintiff-respondent.

3. It transpires from record that marriage of plaintiff-respondent Shahjahan was solemnized with Rabiya Khatoon on 26.11.2001, in accordance with Muslim Rites and Customs. From aforesaid wedlock, a daughter namely, Anjuman was born on 25.11.2002. Rabiya Khatoon, wife of plaintiff-respondent was subsequently, diagnosed of having cancer. Her treatment started. On account of ailment suffered by Rabiya Khatoon, she came to her parental home at Bansdih Ballia along with her minor daughter Anjuman. Ultimately, Rabiya Khatoon wife of plaintiff-respondent died at her parental home on 12.12.2003. Father of Rabiya Khatoon/Materna Grand Father (nana) of minor Anjuman retained minor Anjuman. Ultimately, minor Anjuman was given in the custody of Gulshan, sister of Rabiya Khatoon, mother of minor Anjuman. It may be noted that Gulshan is sister-in-law of Shahjahan, whereas Jahangir is father-in-law of Shahjahan.

4. Plaintiff-respondent, Shahjahan filed misc. case no. 18 of 2004 (Shahjahan Vs. Jahagir and another) regarding guardianship of minor Anjuman vide plaint dated 13.7.2004. According to plaint allegations, it was alleged by plaintiff-respondent that he was married to Rabiya Khatoon on 26.12.2001 in accordance with Muslim Rites and Customs. From aforesaid wedlock, a daughter namely, Anjuman was born on 25.11.2002. Ultimately, it was discovered that Rabiya Khatoon is suffering from cancer. The plaintiff-respondent accordingly took his wife Rabiya Khatoon to different Doctors for medical treatment. On accunt of ailment suffered by Rabiya Khatoon, she came to her parental home along with minor daughter so that she could meet all of her relatives and friends in the last days of her life. Ultimately, Rabiya Khatoon, wife of plaintiff-respondent died on 12.12.2003 at her parental home. Thereafter, Jahangir, father-in-law of plaintiff-respondent retained custody of minor Anjuman. Subsequently, custody of Anjuman was given to Gulshan, another daughter of Jahangir and sister-in-law of plaintiff-respondent. Thus, plaintiff-respondent filed Misc. Case No. 18/04 (Shahjahan Vs. Jehangir and Another) under Section 8 of Act 1890 for appointment of himself as guardian of minor Anjuman.

5. It was the case of plaintiff-respondent that minor Anjuman is not being properly looked after by defendant-appellants. The minor Anjuman has been deprived of love and affection of father and grand parents. Plaintiff-respondent has solemnized his second marriage with Yasmeen Khatoon on 14.4.2005. Plaintiff-respondent is capable of maintaining his minor dauther and further provide her with education.

6. Suit filed by plaintiff-respondent was contested by defendant-appellants. They accordingly filed a written statement whereby, not only allegations made in plaint were denied but also additional pleas were raised. According to defendant-appellants minor Anjuman is residing with defendant-appellant no.2 Gulshan who is her Mausi (sister of mother of minor Anjuman). The minor is being maintained from the income of husband of defendant-appellant no.2. Plaintiff-respondent did not undertake medical treatment of his wife Rabiya Khatoon. Entire expences in treatment of Rabia Khatoon were borne by husband of defendant-appellant no.2 Gulshan. Rabiya Khatoon, mother of minor Anjuman, during her life time, had executed a will dated 10.11.2003, providing that minor Anjuman shall be brought up by defendant-appellant no.2 Gulshan. The minor is being looked after by defendant-appellant no.2 like her own child. Plaintiff-respondent wants to do away with minor Anjuman. Lastly, it was submitted that in maintaining minor Anjuman, defendant-appellant no.2 incurs an expense of Rs. 5000/- per month. As such, in case the court comes to conclusion that custody of minor be given to plaintiff-respondent than defendant-appellant no.2 be compensated by awarding payment at the rate of Rs. 5000/- per month from 25.11.2002.

7. After exchange of pleadings, parties went to trial. Plaintiff-respondent, in support of his case, adduced himself as A.P.W-1, Sarvdeo Upadhyay as A.P.W.-2 and Yasmeen Khatoon as A.P.W.-3. Plaintiff-respondent filed photocopy of F.D.R. in the name of Anjuman valued at Rs. 1,00,000/-. Plaintiff-respondent also filed documents relating to the education of minor Anjuman and also pay slip of Mustaque Ahmad, husband of defendant-appellant no.1 Gulshan. Defendant-appellant no.1, Gulshan in support of her defence adduced herself as O.P.W.1, defendant-appellant No.2 Jahangir adduced himself as O.P.W.-2 and minor Muskan was adduced as O.P.W.-3. Vide list of documents (paper no. 22 Ga), defendant-appellant No.1 filed nine documents. Apart from above, vide paper No. 28 Ga, the birth certificate of Anjuman and death certificate of Rabiya Khatoon were also filed.

8. Court below examined the case of parties in light of pleadings and evidence both oral and documentary on record. Court below concluded that plaintiff-respondent is the father of minor Anjuman and therefore, he is natural guardian of minor. The theory of will set up by defendant-appellants was disbelieved by court below as original will deed alleged to have been executed by Rabiya Khatoon, was never produced in Court. The defence taken by defendant-appellants that it is they who had borne the entire expenses, pertaining to medical treatment of Rabiya Khatoon was also disbelieved by court below, in view of medical receipts pertaining to Rabiya Khatoon being produced by plaintiff-respondent. Defendant-appellant No.2 Gulshan is having two sons as is proved from evidence of parties, therefore, contention raised by defendant-appellant no.2 that she has only one son was found false. On the aforesaid factual premise, court below concluded that under aforesaid circumstances, it is natural for minor Anjuman to feel neglected. Court below also recorded a finding that plaintiff-respondent has a tailoring shop from which he has sufficient income. On account of minor being detained by defendant-appellant no.1 Gulshan, she has been deprived of natural love and affection of her father and grand parents. On the aforesaid findings Court below opined that plaintiff-respondent is liable to be appointed as guardian of minor Anjuman. Accordingly, Misc. Case No. 18 of 2004 (Shahjahan Vs. Jehangir and Another) was allowed vide judgement dated 7.11.2015, passed by Principal Judge, Family Court, Ballia. Consequently, plaintiff-respondent Shahjahan was appointed as Guardian of minor Anjuman.

9. Thus, feeling aggrieved by aforesaid judgement, defendant-appellants have now come to this Court by means of present first appeal, challenging judgement and order dated 7.11.2015, passed by Court below.

10. Mr. Abhishek Kumar, learned counsel for defendant-appellants has challenged judgement and order 7.11.2015, passed by Court below primarily submitting that daughter of plaintiff-respondent, namely, Anjuman, is minor as her date of birth is 25.11.2002. Secondly he submits that there was no such evidence on record to show that interest of minor was not well protected in guardianship of defendant-appellant No.1 Gulshan. Lastly, he submits that irrespective of the fact that plaintiff-respondent is father of minor and therefore, natural guardian of minor, the guardianship of minor in favour of natural father can be denied in exceptional circumstances. Minor Anjuman was being looked after by defendant-appellant no. 1 Gulshan from 2002 without any complaint made by any person. The natural father i.e. plaintiff-respondent Shahjahan has remarried and therefore, it is not practical to give guardianship of minor Anjuman to natural father i.e. plaintiff-respondent Shahjahan.

11. On the other hand Mr. Manoj Yadav, learned counsel for plaintiff-respondent has supported impugned judgement and order on the strength of findings recorded therein. He further submits that since plaintiff-respondent is the natural guardian of minor Anjuman, guardianship of minor cannot be denied to him.

12. In view of rival submissions, only one point for determination has arisen which requires adjudication in this appeal, i.e;

“Whether Court below was justified in appointing plaintiff-respondent father of minor girl Km. Anjuman as guardian instead of defendant-appellant and judgement under appeal warrants interference or not?”

13. Before proceeding to consider respective submissions made by counsel for the parties, it would be appropriate to refer to Sectionsection 8 of Act 1890, which reads as under:

“8. Persons entitled to apply for order.–An order shall not be made under the last foregoing section except on the application of–

(a) the person desirous of being, or claiming to be, the guardian of the minor; or

(b) any relative or friend of the minor; or

(c) the Collector of the district or other local area within which the minor ordinarily resides or in which he has property; or

(d) the Collector having authority with respect to the class to which the minor belongs.”

14. Section 8 of Act 1890 provides as to who may apply for an order regarding appointment of guardian. Section 7 of Act 1890 empowers the Court to make order as to guardianship. However, neither in Sectionsection 7 or in Sectionsection 8, there are any indicators which shall be followed by Court before making an order regarding appointment of a guardian. Similarly, Act, 1890 does not contain any provision, which provides the facts/circumstances which are required to be looked into before making an order appointing a guardian nor there is any such provision indicating facts and circumstances, which are required to be ignored by Court while passing an order regarding appointment of a guardian.

15. It is well established that father is natural guardian of minor. After death of mother, it is father who is entitled to guardianship of minor children. Therefore, in all probability, it is father who has to be appointed as guardian of minor. However, this rule is subject to certain exceptions. Such exceptions should be strong enough to deprive the father of guardianship of minor children.

16. Learned counsel for defendant-appellant could not point out any such special facts, existing in this case, on the basis whereof plaintiff-respondent Shahjahan could be denied guardianship of minor Anjuman. Similarly, no illegality or perversity could be established by learned counsel for defendant-appellants in respect of findings recorded by Court below. The findings of fact recorded by Court below remain intact. Logical conclusion is that if findings could not be dislodged, conclusion also cannot be dislodged. The point for demarcation framed above, therefore, is answered against appellants.

17. In view of above discussion, this appeal is clearly devoid of merits and therefore, liable to be dismissed. It is accordingly dismissed.

18. Cost made easy.

Order Date :- 23.9.2019

Arshad

 

 

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