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Mritunjay vs Hari Shankar Dixit on 8 July, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 34

Case :- FIRST APPEAL DEFECTIVE No. – 138 of 2019

Appellant :- Mritunjay

Respondent :- Hari Shankar Dixit

Counsel for Appellant :- Harish Chandra Singh,Anand Pal Singh

Counsel for Respondent :- Bishram Tiwari

Hon’ble Sudhir Agarwal,J.

Hon’ble Rajeev Misra,J.

1. Heard Sri Harishchandra Singh, Advocate, for appellant and Sri Upendra Tiwari, Advocate, holding brief of Sri Bishram Tiwari, Advocate, for respondents.

2. This appeal under Section 19 of Family Courts Act, 1984 (hereinafter referred to as “Act, 1984”) has arisen from judgment and decree dated 05.04.2019 passed by Sri Satyaveer Singh, Principal Judge/Additional District Judge/ Fast Track Court No.1, Kushinagar at Padrauna, rejecting appellant’s application for custody of child, Tuntun Tiwari, filed under Section 25 of  Guardians and SectionWards Act, 1890 (hereinafter referred to as “Act 1980”).

3. Learned counsel for appellant contended that appellant is father and natural guardian, hence entitled for custody of child in question and Court below has erred in law by allowing custody to maternal grand-parents and it is contrary to law.

4. It is evident from record that marriage of appellant was solemnized with Manju, daughter of respondents, on 17.02.2014 whereafter the child Tuntun was born on 03.11.2015. Wife of appellant disappeared in the night of 23.09.2016 and in that matter a Criminal Case has been registered against appellant as Case Crime No. 1203 of 2016 under Sections 304B, Section201, Section468A I.P.C. and 3/4 SectionDowry Prohibition Act at Police Station Kotwali Padrauna, District Kushinagar. The child is residing in the custody of respondents, i.e., maternal grand-parents since the age of three of months and at present he is about 3 and half years. Court below has examined entire facts and recorded a finding that interest of child is supreme and his custody with material grand-parents is in the interest of child and therefore has rejected the application of appellant.

5. When questioned, learned counsel for appellant stated that his case is founded on the legal right conferred under Act, 1890 providing that father is natural guardian and therefore is entitled for custody of child in preference to material grand-parents.

6. However, we find no force in the submissions.

7. While determining the question of custody of a minor child, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute.

8. SectionIn Mausami Moitra Ganguli v. Jayant Ganguli (2008) 7 SCC 673, it has been held that the principles of law in relation to the custody of a minor child are well settled. 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.

9. In the above case, a passage from Halsbury’s Laws of England (4th Edn., Vol. 13) was reproduced which reads as under:

“809. Principles as to custody and upbringing of minors.- Where in any proceedings before any court, the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other.”

10. Earlier, Apex Court in SectionRosy Jacob v. Jacob A. Chakramakkal (1973) 1 SCC 840, ruled that the children are not mere chattels, nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian.

11. Following the above authorities, in Santhini Vs. Vijaya Venketesh (2018) 1 SCC 1 Court expressed the same view holding as under:

“It is to be borne in mind that in a matter relating to the custody of the child, the welfare of the child is paramount and seminal. It is inconceivable to ignore its importance and treat it as secondary. The interest of the child in all circumstances remains vital and the Court has a very affirmative role in that regard. Having regard to the nature of the interest of the child, the role of the Court is extremely sensitive and it is expected of the Court to be pro-active and sensibly objective.”

(emphasis added)

12. In the case in hand, having bestowed our anxious consideration to the material on record and the observations made by the Court below, we are of the view that in the present case there is no ground to upset the judgment and order of Court below. There is nothing on record to suggest that welfare of child is in any way in peril in the hands of the maternal grand-parents. In our opinion, the stability and security of the child is also an essential ingredient for a full development of child’s talent and personality.

13. In view of above, and also considering the fact that appellant is charged with the murder of wife and child is residing almost from his birth, i.e, the age of three months in the custody of respondents and the respondents are financially and otherwise well capable to look after child, we find no reason to interfere with the order impugned herein.

14. The appeal lacks merits. Dismissed.

Dt. 08.07.2019

PS

Court No. – 34

C.M. Delay Condonation Application No. 1 of 2019

In

Case :- FIRST APPEAL DEFECTIVE No. – 138 of 2019

Appellant :- Mritunjay

Respondent :- Hari Shankar Dixit

Counsel for Appellant :- Harish Chandra Singh,Anand Pal Singh

Counsel for Respondent :- Bishram Tiwari

Hon’ble Sudhir Agarwal,J.

Hon’ble Rajeev Misra,J.

1. This is an application seeking condonation of delay in filing appeal.

2. Learned counsel for respondent states that he does not propose to file any written objection to this Application and since there is delay of only four days, Court may examine the genuineness of delay and pass appropriate order after hearing learned counsel for applicant.

3. Heard.

4. Cause shown is sufficient.

5. Delay in filing appeal is hereby condoned.

6. This application, accordingly, stands allowed.

7. Let appeal be registered with regular number and old number shall also continue to be shown in bracket for finding out details of case, whenever required by parties with reference to either of the two number.

Dt. 08.07.2019

PS

 

 

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