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Manish Kumar Tripathi vs Laxmi Kant Shukla on 22 February, 2018

1

HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR

Miscellaneous Appeal No. 2644 of 2012
Parties Name Manish Kumar Tripathi
Vs.
Laxmi Kant Shukla and another
Bench Constituted Hon’ble Shri Justice S.K. Gangele
Hon’ble Smt. Justice Anjuli Palo
Judgment delivered by Hon’ble Shri Justice S.K. Gangele
Whether approved for No
reporting
Name of counsels for parties For appellant: Ms. Anjali Banerjee,
Advocate.

For respondents: None.

Law laid down
Significant paragraph
numbers

(J U D G M E N T)
Pronounced on : 22.02.2018

1. Appellant has filed this appeal against the order dated

30.07.2012 passed in Misc. Case No.39/12. By the aforesaid

order, the trial Court rejected the application filed by the appellant

under Section 10 of Guardian and Wards Act, 1890. Appellant

sought a relied that he be given custody of girl Km. Ayushi

Tripathi. The appellant is the uncle of the girl. Father of the girl,

who was the brother of the appellant, has died.

2. The appellant pleaded that mother of the girl has remarried

on 12.03.2007 after death of her husband. Father of the girl was

the brother of the appellant. He was died on 09.03.2003 due to

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M.A. No. 2644 of 2012

cancer. The girl is living with the mother and father of her mother

i.e. nana and nani (grandfather and grandmother). Mother of the

girl performed second marriage with a divorcee namely

Ravishankar Gautam. The respondents denied the pleadings of the

appellant and pleaded that the girl has been living with her nana

and nani. Mother of the girl is also living with the girl. After

performing second marriage, the mother of the girl is living with

her father and mother. The appellant has two sons. The father of

the girl deposited Rs. 14 lacks in the bank. However, the present

appellant had withdrawn the aforesaid amount and did not pay

any amount towards the welfare of the girl for whom he sought

guardianship. The real intention of the appellant is to grab the

property which would come in the name of the girl after death of

her father. The trial Court rejected the application.

3. Learned counsel for the appellant admitted the fact that the

girl, at present, is aged about 16 years. Learned counsel has

submitted that the appellant is the uncle of the girl. Mother of the

girl has already remarried. Hence, looking to the welfare of the

child, it is obligatory on the part of the Court to grant custody of

the girl in favour of the appellant. In support of aforesaid

contentions, she relied on the following judgments:

A. Sheila B. Das vs P. R. Sugasree, (2006) 3 SCC 62 and
B. Shri Paramjit Singh Lamba vs Smt. Prabhjot Kaur,
(2004) AIR (Delhi) 318.

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M.A. No. 2644 of 2012

4. Pleadings of the parties have already been mentioned

above in the judgment. The appellant in his evidence deposed the

same facts as pleaded by him in his plaint. He further pleaded that

the mother of the girl Km. Ayushi Tripathi has remarried. Hence,

it would not be proper that the girl be permitted to live with the

father and mother of the mother of the girl i.e. nana and nani. He

further deposed that he is working as Sales Executive in a private

company and he is getting salary of Rs.34,350/- per month. He

has two children, i.e. one son and one daughter. Both are studying

in schools. He is capable to provide proper education to the girl.

Another witness Arun Kumar Pandey deposed that the mother of

the girl has remarried and she is living with her husband. Another

witness Ramakant Dwivedi also deposed the same facts. He

further deposed that the appellant has sufficient means to

maintain the girl.

5. The respondents in their evidence deposed that after death

of the father of the girl, the appellant and his family members did

not come to see the girl. Laxmikant Shukla deposed that my

daughter (mother of the girl) is working as a teacher in Kistukala

Mission Higher Secondary School, Satna. My son Dharmendra

Shukla is getting salary of Rs.25,000/- per month and I am getting

Rs.22,000/- per month. Father of the girl had deposited an amount

of Rs.14,00,000/- in the bank. He requested the appellant to

deposit Rs. 5,00,000/- in the name of my daughter and

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M.A. No. 2644 of 2012

Rs.2,00,000/- in the name of the girl, however, the appellant had

withdrawn the money and did not deposit any amount. Smt.

Meenakshi Gautam, mother of the girl, deposed the same facts

that she is looking after the girl-Aishwarya. After death of my

husband I have remarried. She further deposed that after death of

my husband, the appellant did not come to meet the girl and he

had withdrawn the amount of Rs.14,00,000/- deposited by the

father of the girl in the bank. He did not give any amount to me or

the girl. Two more witnesses i.e. Vikas Kumar Dwivedi and

Devendra Singh Bhadauriya have also been examined on behalf

of the respondents. They deposed that the appellant did not come

to see the girl. Neither he had taken any care of the girl.

6. The Apex Court in the case of Purvi Mukesh Gada Vs.

Mukesh Popatlal Gada and another, (2017) 8 SCC 819 has held

that welfare of minor is paramount consideration while

considering the case of custody of minor. The Apex Court has

held as under:-

“10. 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

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M.A. No. 2644 of 2012

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 June 17, 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.”

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M.A. No. 2644 of 2012

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 Hon’ble Apex Court 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.”

9. The aforesaid principle has also been reiterated by the

Hon’ble Apex Court in the case of Sheila B. Das vs P. R.

Sugasree, (2006) 3 SCC 62, case law cited by learned counsel for

the appellant. The principle of law in regard to custody of female

child is that in giving custody of a female child the paramount

consideration by the Court is welfare of the child. In the present

case, the appellant in the uncle of the child (girl). She is aged near

about 16 years. Since birth, she has not lived with the appellant.

She has been living with her nana and nani. The mother of the girl

has remarried, but, it is also a fact that the girl is getting proper

education. She has not desired to live with the appellant. The

appellant himself admitted that after death of his brother i.e.

father of the girl, he did not take any step/effort to meet with the

girl. Neither he met with the girl. There is also allegation that the

appellant had withdrawn an amount of Rs.14 lacs from the bank

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M.A. No. 2644 of 2012

account of the father of the girl and he had not paid the aforesaid

amount to the mother of girl or the girl.

10. Looking to the aforesaid facts of the case, in our opinion,

the trial Court has rightly dismissed the application filed by the

appellant. Consequently, we do not find any merit in this appeal.

It is hereby dismissed.

11. No order as to costs.

(S.K. Gangele) (Smt. Anjuli Palo)
Judge Judge

Digitally signed by VINOD KUMAR TIWARI
Date: 2018.02.24 13:20:46 +05’30’
vkt

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