Calcutta High Court Pravat Kumar Saha-vs-Dilip Pramanick on 18 February, 1997
Equivalent citations:AIR 1997 Cal 326, II (1997) DMC 587
Author: D Kundu
Bench: T Chatterjee, D Kundu
D.P. KUNDU, J.
1. This appeal is arising out of a judgment and order being Order No. 31, dated 14th February, 1996 passed by Shri A.N. Sen, the ld. District Judge, Barasat. North 24-Parganas, in Act VIII Misc, Case No.5 of 1994 dismissing the said Misc, Case on contest but without cost.
2. The Act VIII Misc, Case No.5 of 1994 was instituted by Pravat Kumar Saha, the appellant (hereinafter referred to as ‘appellant’) by filing an application under Sections 7, 8 and 10 of the Guardians and Wards Act, 1890 before the Ld, District Judge at Barasat, 24-Parganas (North) praying that appellant be appointed guardian of the person and property of the minor Shri Debankur Pramanick alias Bapi (hereinafter referred to as ‘Bapi’) till he attains maturity and/or majority. The respondent Dilip Pramanick (hereinafter referred to as ‘respondent’) who is the father of Bapi also filed an application under Sections 7, 8 and 10 of the Guardians and Wards Act, 1890 for recording ‘no objection’ of the respondent to the application of the appellant for appointment as guardian of the person and property of the minor Bapi fill he attains the maturity and/or majority. However, subsequently the respondent in connection with the aforesaid Misc, Case filed the written objection and prayed for rejection of the petition filed by the appellant under Section 7, 8 and 10 of the Guardians and Wards Act, 1890 and directing the appellant to make over the minor Bapi to the custody of his father and natural guardian with immediate effect.
3. It is an admitted fact that the marriage between the respondent and Smt. Papia, since deceased, the daughter of the appellant was solemnized on 12-8-91 according to Hindu rites and out of such marriage a son Debankur alias Bapi was born on May 28, 1992. On 21-10-93 Smt. papia died at R. G. Kar Medical Hospital in an unnatural circumstances out of burn injury. At the time of burning she was staying with Bapi at the residence of her father, the appellant. In connection with the unfortunate death of Smt. Papia a criminal case being Khardah, P.S. Case No. 430, dated 22-10-93 under Sections 498-A and 306 of I.P.C. is pending against the respondents and his parents and police has submitted charge-sheet in connection with the said case.
4. In his application under Section 7, 8 and 10 of the Guardians and Wards Act, 1890 the appellant, inter alia, stated that on sudden death of Smt. Papia the appellant got severely bereaved and was mentally distressed. The appellant could not bear the absence of his daughter, Smt. Papia and his grand son Bapi had given him consolation in the midst of sorrow. Bapi was, at that material time, growing up with the appellant, his wife and his two minor daughters. At that material time the father of Bapi, most of the days, used to stay at different places outside the residence due to his own professional assignments. The respondent, however was not mentally fit to bear the expenses of his minor son. Save and except the appellant, Bapi had no one to look after him. Since the death of Smt. Papia on 21-10-93, Bapi was being nurtured and looked after by the appellant at his house at 4, Elias Road, Calcutta-58 and Bapi used to reside ordinarily at the said house. The appellant wanted to arrange the proper safety, security and protection of Bapi. The appellant has love and affection of Bapi and the appellant has also sufficient fund and resources to look after Bapi, Bapi at that material time, was conveniently staying at 4, Elias Road, Calcutta-58 with the appellant and the appellant thought that the welfare of Bapi, his upkeep, his proper maintenance, his education and well being at the house of the appellant would be properly suited for the growing mind and needs of Bapi. On the contrary, there is no one in the house of the respondent to take care of Bapi at Inda, Kharagpur, District Midnapore. At that material time the respondent was also staying with the appellant and Bapi at 4, Elias Road, Calcutta-58. The appellant is though the maternal grandfather of Bapi and though the respondent, the father of Bapi is natural guardian yet for suitable maintenance and upkeep of Bapi the appellant should be appointed as the guardian of the minor. The respondent conceded the arrangement as stated in the application. The respondent shall have the right to visit Bapi from time to time and look after him. The appellant is a fit and proper person to be appointed.
5. The respondent in his application under Sections 7, 8 and 10 of the Guardians and Wards Act, 1980 inter alia stated that at the time of death of Smt. Papia, Bapi was staying with the appellant at 4, Elias Road, Calcutta-58 and Bapi was, at that material time, trained up and looked after by the parents of Smt. Papia, Parents of Papia had got much love and affection for Bapi and they had got sufficient funds and resources to look after Bapi and the minor was conveniently staying with the parents of Smt. Papia at 4, Elias Road, Agarpara, Calcutta-58. With the arrangement existing at that material time, Bapi was staying comfortably and conveniently with the appellant and the members of his family. The respondent was sure that in future run of life there would be no difficulty towards upkeep, maintenance and well-being of Bapi. The respondent was sure, at that material time, that his minor son Bapi would be suitably maintained, grown up and would be looked after properly. Considering the welfare of Bapi and considering the fact that Bapi was conveniently placed at the house of the appellant, the respondent recorded his consent to such arrangement and the respondents had no objection if Bapi was allowed to be kept in the care and custody of the appellant. The respondent submitted that the appellant be allowed to continue to have care and custody of Bapi till he attains maturity and/or majority.
6. In his written objection dated 18th March, 1994, the respondent, inter alia, stated that the appellant had his wife and two other daughters alive. So the appellant had support from his family whereas the respondent, a youngman lost his beloved wife. It is true that when the mind of the respondent was engulfed with profound grief for the sudden death of his wife and sustained burn injury the respondent was compelled to keep his minor son to the care and custody of the appellant for the time being because at that material time Bapi was living at 4, Elias Road, Calcutta-58 and the appellant also desired and demanded the same. That was a temporary arrangement mutually made between the respondent and the appellant. Such temporary arrangement which was made for the sake of Bapi in extremely helpless and unfortunate circumstances, does not entitle or authorise the appellant to claim guardianship ousting the respondent from his own place and position. The respondent is a young businessman having his own house and business establishment at Vidyasagarpur, Kharagpur, District Midnapore where he has been staying with his parents, bother and Bapi. The respondent is quite a stable and capable businessman and he does not require to pass most of the days in any outdoor duties rather he is used to pass days and nights in his house with the company of the members of his family. Therefore, Bapi has his father, paternal grandparents, paternal uncle and aunts to look after him, Bapi was allowed to stay in the house of the appellant at 4, Elias Road, Calcutta-58 only for the time being in an unusual circumstances and also under a compelling situation which arose from sudden death of Smt. Papia at her father’s place. Permission to keep Bapi in the temporary custody and care of the appellant did not confer and constitute any right, authority to the appellant so as to claim appointment as guardian of the person and property of Bapi who was at that material time only 18 months sold. The respondent has sufficient means, resources and strength in all respect to rear up, upbring and provide best possible education and other necessities for day to day living of Bapi, Bapi used to get and shall get loving care and company not only from his father, the respondent, but also from his paternal grand-parents, uncle, aunts and other relations at his father’s house. The respondent prayed for rejection of the petition filed by the appellant under Ss, 7, 8 and 10 of the Guardians and Wards Act, 1890 and a direction to the appellant to make over Bapi to the custody of the respondent, the father and natural guardian, with immediate effect.
7. It appears that the appellant in the aforesaid Misc. case filed an application under O,6,R, 17 read with S. 151 of the Code of Civil Procedure praying for amendment (hereinafter referred to as first amendment) of the application filed by him under Ss, 7, 8 and 10 of the Guardians and Wards Act, 1890. By this first amendment the appellant brought allegations against the respondent which are connected with the criminal case now pending against the respondent and his parents.
8. It further appears that the appellant filed another application for amendment (hereinafter referred to as second amendment) of his original application under Ss, 7, 8 and 10 of the Guardians and Wards Act, 1890, in the said application for amendment the appellant prayed for addition of new paragraphs being paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 with sub-paragraph 29 with sub-paragraphs 21, 22, 23, 24. By such amendment, the appellant, inter alia, made allegations against the respondent which are connected with the criminal case now pending against the respondent and his parents. It appears that the appellant once again filed an application for amendment (hereinafter referred to as third amendment) of his application under Ss, 7, 8 and 10 of the Guardians and Wards Act, 1890. In the said third amendment the appellant stated that his wife died an unfortunate death on 5-11-94 due to sudden cardiac failure. The appellant stated that he is quite affluent to maintain Bapi and to rear him up with all care attention as a fit person. It has been stated that the appellant has been running as many as three trades and he has got his place of business or the registered office at his own residence wherefrom he conducts his business/trades as aforesaid through different agents. The appellant further stated that he got Bapi admitted in a nursery school and in the morning the appellant used to take Bapi to his school and bring him back after the school hours. The appellant further stated that he appointed one governess to look after Bapi partially and specially during the period when the daughters of the appellant remained at their schools. The appellant further stated that Bapi finds pleasure and happiness with the company of the daughters of the appellant who have been taken up as exclusive playmates of Bapi. The appellant further stated that the daughters of the appellant are also deeply attached with Bapi and as such, at this stage, change of custody of Bapi shall cause a serious mental harassment or worry to Bapi. The appellant stated that out of his two daughters one was aged about 14 years and the other one was about 12 years. The appellant further stated that apart from the governess there was one maid-servant whom the appellant appointed to do household works and Bapi remained quite happy and jubilant in the custody of the appellant even after the death of his maternal grandmother.
9. It appears that the respondent had filed additional written objection. In the addl, written objection the respondent made certain statements which are connected with the criminal case now pending against him and his parents.
10. The appellant in his evidence stated that Bapi was living in his custody and his wife expired on 5-12-94 (sic) due to cardiac failure. In his evidence the appellant stated that he has two daughters at present and he is a businessman. The appellant deposed that he got admitted Bapi in Mongrece Montessori House at 1. Short Street, Calcutta-16 (objected to). He used to take Bapi to school and sometimes the appellant’s driver used to take Bapi to school. The appellant further stated in his evidence that he had engaged one woman for looking after Bapi. The appellant further stated in his evidence that Smt. Papia came to his house two months prior to her death. The appellant further stated in his evidence that one criminal case was initiated against the respondent and others and in the said criminal case the police has submitted charge-sheet against them and that the appellant does not known whether Papia had left one death note. In his cross-examination the appellant stated that the school where Bapi was studying at that point of time was 15 k.m. away from his house and stated that the appellant/his elder daughter was reading in Class-VIII in Burnpur Girls School at Burnpur and at the time of his deposition the said daughter was not staying in the house of the appellant. The appellant further stated in his evidence that his youngest daughter, at that point of time, was reading in Class V in Sabitri Maharaj Vidyapith at Agarpara and the classes of the said school was used to be taken up between 11 a.m. and 3 p.m. on week days. The appellant further stated in his evidence that even after death of Smt. Papia the respondent stayed in his house for one month and Bapi was in the house at that time.
11. The respondent in his evidence stated that the respondent and Bapi had good relations between themselves. He further stated in his evidence that his wife had also good relations with his parents. He deposed that similar good relation was existing between his parents and his son. The respondent in his evidence stated that he deals in medicine in the wholesale market along with his brother who is a bachelor. He has two sisters who are married. The respondent further stated in his evidence that his father was in the railways service, since retirement he is a pensioner. The mother of the respondent is a housewife and she is well. The respondent stated in his evidence that they live in a joint family and the respondent has sufficient means to look after his son and it is not necessary to seek help from anybody to look after his son. The respondent in his evidence stated that it is not a fact that he had dispute with his wife and that due to his torture his wife committed suicide. The respondent further stated that it is not a fact that he is responsible for her death. The respondent in his evidence stated that it is not a fact that he told his father-in-law that it was not possible to maintain his son. The respondent further stated in his evidence that his father-in-law forcibly made him to write down no objection to the custody of his son in favour of the appellant. The respondent stated in his evidence that on 11-2-92 he withdrew the said “no objection” and thereafter he was arrested by police. The respondent in his evidence stated that at that material time his son was living with his youngest maternal uncle at Salt Lake and the respondent further stated that he did not think that his father-in-law is able to look after his son. The respondent in his evidence stated that since 26th December, 1993 he was not in visiting term with the family of his father-in-law and that he is able to maintain his son properly. The respondent stated in his evidence that he pays income tax. The respondent in his evidence admitted that against him one criminal proceeding is pending in connection with the death of his wife Smt. Papia. The respondent-stated that he was arrested in connection with the aforesaid case on 28-4-94 and was granted bail by the Hon’ble Court on 3-6-94.
12. From an order dated 10-5-96 passed by the ld. Division Bench (Cor.S.R. Mishra and S. Narayan, JJ.) in connection with an application for stay filed on 1st April, 1996 in the instant appeal it appears that Bapi had already been admitted in an institution known an Sunshine School, Kurseong, Darjeeling. The operative part of the said order dated 10-5-96 passed by the said Division Bench reads as follows :-
“We have heard the learned Counsel for the parties and an interim measure looking into the interest of the minor child as well as other surrounding circumstances, it appears to be appropriate that he boy who has already been admitted in a Institution known as “Sunshine School” Kurseong, District Darjeeling, be shifted there in the Hostel during the pendency of this appeal. This order is passed with the consent of the parties and it will be open for the father and the grand parents to visit and meet the boy in the school including the maternal grandfather and near relations, if any. When the vacation takes place the father is permitted to take the boy for the first month of the vacation at his residence for which the School authorities will permit the same and if the holidays are more than a month for the rest period the boy will remain with the maternal grandfather and the father will not create hindrance or difficulty and also the maternal grandfather as well. It is also open for the part is, after the boy is shifted to the Institution in question, any complaint with regard to the schooling and continuance of the boy in the Institution, to bring the material facts to the notice of this court, if they want any variation or modification of the order or further direction, if necessary arises for the same. As referred to above since we are passing the orders with the consent of the parties and looking into the welfare and interest of the child we are not going into the details of the averments made in the application for stay and the affidavit-in-opposition. It is also open for the father, if he so likes, to accompany the boy along with the maternal grandfather at the time of shifting of the boy where he has said to be admitted and fee etc, has been paid to the Institution by the maternal grandfather.
The application for interim order is accordingly disposed of. There shall be no order as to costs.”
13. It appears that by an order dated 11-10-96 passed by a Division Bench (Cor. S.R. Mishra and Vidyanand, JJ.) in the instant appeal, the earlier order dated 10-5-96 was clarified and the operative part of the order dated 11-10-96 reads as follows :-
“It appears to be appropriate that this clarification be made which may form part of the earlier order dated 10th of May, 1996 that if there is a holiday for two weeks as for the present, for the first week the child will remain with the grand parents and after a week the child will go to the father. Neither the grant parents nor the father will create any hurdle in keeping the child as directed by this court today. So far as the long vacation is concerned, if it is more than two months, for the first month the child will be with the father and the second month with the grand parents, the third month with the father and the fourth month with the grand parents.
However, if an occasion arises and fresh new facts emerge, it will be open for either of the parties to bring to the notice of this court requiring any modification in this order.
So far as the Puja Holiday is concerned the grand parents will have the child in their custody from 14th October to 22nd October, 1996, but luring this period if the father wants to visit the house he will be allowed to do so. On 22nd of October, 1996 in the evening the child will be handed over by the grand parents to the father and he will keep the child in his custody till 28th of October, 1996 and thereafter send him to the school in question and if the grand parents also want to accompany the father along with the child for putting him in the hostel or in the Institution they are at liberty to do so without any objection.”
14. On 15-1-97 we had talked with the child, who is about four years old, in our chamber and thereafter in the Court passed the following order :–
“Today the matter was fixed for having a talk with the child who is about four years old. Accordingly, the parties were present in our chamber with the child. We had spoken to the child as well as the maternal grandfather and the father of the child. On asking the child, the child promptly replied that he wants to stay with his father. This position is not being accepted by the maternal grandfather. Therefore, without deciding the appeal we are unable to pass any order directing the child to be handed over either to the father or to the maternal grand-father. Accordingly, we decided to take up the hearing of the appeal at my early date. Let the appeal be listed ‘for hearing’ at the top of the list on next Monday, i.e. 20th January, 1997.”
15. On 22-1-97 we passed the following order in the instant appeal :–
“As agreed by the parties and in terms of the order dated 11th October, 1996, we direct that the child be handed over by the appellant to the respondent-father today at 8.30 p.m. from the chamber of Sri S. Abedin, learned advocate for the appellant.
Let the appeal come up for hearing next Thursday i.e. on 30th January, 1997.”
16. Ultimately on 6-2-97 the hearing of the appeal was concluded.
17. This Court while deciding this appeal shall not deal with any matter involved in or connected with the criminal proceeding in respect of Khardah P.S. Case No.430, dated 22-10-93 under Ss, 498A and 306 of I.P.C. This court shall also not deal with that part of the evidence of the witnesses which relate to the said criminal case. However, this court takes note of the fact that a criminal proceeding in connection with Khardah P.S. Case No.430, dated 22-10-1993 under Ss, 498A and 306 I.P.C. is pending and in connection with that case the respondent and his parents were arrested and subsequently released on bail. This court also takes note of the fact that in connection with the said criminal case police has filed charge-sheet in the learned court. In total three witnesses were examined before the trial Court. The trial Court by judgment and order being order No.31, dated 14th February, 1996 dismissed the Misc, case on contest but without cost. The appellant preferred the present appeal against the said judgment and order.
18. Mr. Asoke Banerjee, learned Senior Advocate for the appellant firstly argued that his client, the appellant, should be appointed as guardian of the minor Bapi and be given custody of Bapi. Alternatively he submitted that the guardianship of Bapi even if remains with the respondent, the custody of the child should be given to the appellant. He argued that a criminal case is pending against the respondent as well as his parents and nobody knows that would be the outcome of the said criminal proceeding and if the respondent and his parents are found guilty of the offences then great difficulty will arise regarding welfare of the minor Bapi. It was also argued that if the respondent marries for the second time then also the welfare of the child will be adversely affected. The learned advocate for the appellant further submitted that the appellant has enough means to take appropriate step for the welfare of the minor Bapi for example the appellant has already got bapi admitted in a school at Kurseong and Bapi is studying there staying at hostel at Kurseong and all the expenses are borne by the appellant. The learned Advocate for the appellant further submitted that the appellant is very solvent person and it is possible for him to bear the all expenses for proper maintenance and welfare of the minor Bapi. The learned Advocate for the appellant referred to Smt. Surinder Kaur v. Harbax Singh, . In Surinder Kaur’s
case (supra) Hon’ble Supreme Court held that ‘traumatic experience of a conviction o na criminal charge’ was not a fact in favour of the father, especially when his conduct following immediately upon his release on probation showed that the experience had not chastened him and that the affluence of father’s parents could not be a circumstance of such overwhelming importance as to tilt the balance in favour of the father on the question of what was truly for the welfare of the minor and that at any rate, in the circumstance it could not be said that it would be less conducive for the welfare of the minor if he lived with his mother. On these considerations the custody of the minor boy was to be handed over to the mother. The Hon’ble Supreme Court further held that S. 6 of Hindu Minority and Guardianship Act, 1956 could not supersede the paramount consideration as to what was conducive to the welfare of the minor and that the boy, from his own point of view, ought to be in the custody of the mother. Relying upon Surinder Kaur’s case (supra) ld. Advocate for the appellant argued that since a criminal case is pending against the respondent, the respondent also should not be given custody of the minor Bapi. We are of the view that the facts and circumstances involved in Surinder Kaur’s case (supra) are absolutely different from the facts and circumstances involved in the instant case. In the instant case the respondent has not yet been convicted on a criminal charge. There is no evidence on record on the basis of which it can be said that the conduct of the respondent is not conducive for the welfare of the minor Bapi. Under these circumstances the decision in Surinder Kaur’s case (supra) has no manner of application in the facts and circumstances of the instant case.
19. The learned Advocate for the appellant also referred to Satyendra Nath Maitra v. Balaram Chatterjee . The
facts and circumstances in Satyendra Nath Maitra’s case were that Smt. Mira wife of Shri Tanmoy had suffered burn injuries at their Dumdum house and after removal to a hospital, she died on 21-3-77. Since the said unfortunate death of her mother Mitoshree the minor, had been living with her maternal grand parents, the appellants. On 18-5-1977. Shri Tanmoy, father of the minor Mitoshree committed suicide. Balaram Chatterjee the paternal grand-father of minor Mitoshree filed an application for custody of the minor. Subsequently Shri Balaram also prayed for appointing him as guardian of the said minor. Satyendra Nath Maitra and another the appellants who were the maternal parents of the minor opposed the said prayer of Shri Balaram. The Trial Court allowed the application of Shri Balaram and appointed him as the guardian of the minor. Mitoshree and directed the appellants to give her custody to Shri Balaram. The appellants preferred an appeal before this Hon’ble High Court. The learned Division Bench (Cor. Chittatosh Mukherjee and Ram Krishna Sharma, JJ.) held that undisputedly, the appellants were not the natural guardians of the minor nor was the respondent, the natural guardian of Mitoshree. Neither the minor’s father nor her mother had by will appointed any guardian. Therefore, the trial Court within whose jurisdiction the minor resided was competent to appoint a guardian of the said minor. The Division Bench held that in making the appointment of any person as a guardian of the minor by a Court, in view of section 13(1) of the Hindu Minority and Guardianship Act, 1956 the welfare of the minor shall be the paramount consideration. Section 2 of the Hindu Minority and Guardianship Act, 1956 has laid down that the provisions of the said Act shall be in addition to, and not, save as expressly provided in derogation, of the Guardians and Wards Act of 1890. The Division Bench held that undoubtedly, in appointing or declaring a guardian of a minor, the court is required to consider matters as mentioned in S. 17 of the Guardians and Wards Act, 1890. But while considering such matters the paramount consideration of the court would be the welfare of the minor. So far as the proximity of relations was concerned it was held that the appellants the material grandparents and the respondent, the paternal grand father, were both close relations of the minor and on the said ground of relationship the respondent did not have a preferential claim to guardianship over the person of minor. It was held by the Division Bench that it would have been entirely against the welfare of the child if the child was taken away from the custody of the appellants and was handed over to her paternal grandfather’s family who were then almost stranger to her. It was held that it would not have been to the welfare of the minor child if she was placed in a surrounding which was almost alien to her, and any change of her custody and environment at that time might have baneful effects. The Division Bench held that if any such change was made in respect of custody then the minor Mitoshree might have become emotionally disturbed and upset. Under these circumstances the Division bench held that it would not have been expedient to uphold the order of the court below by which the minor who was an orphan would have been taken away from her home and surroundings.
20. In the instant case minor Bapi is not an orphan. The respondent in the instant case, in view of Section 6 of Hindu Minority and Guardianship Act, 1956, is the natural guardian/of the minor Bapi and very much contesting the matter. The proviso to S. 6 of the Hindu Minority and Guardianship Act, 1956, lays down that no person shall be entitled to act as the natural guardian of a minor under the provisions of S. 6 if (a) he has ceased to be a Hindu, or (b) he has completely and finally renounced the world by becoming a hermit (Vanoprasta) or Ascetic (Yati or Sanyasi). Admittedly, in the instant case, the father of the minor Bapi, who is respondent, has neither ceased to be a Hindu nor he has completely or finally renounced the world by becoming a hermit (Vanoprasta) or Ascetic (Yati or Sanyasi). Therefore, the respondent has not made him disentitled to act as the natural guardian of the minor Bapi under the provisions of S. 6 of the Hindu Minority and Guardianship Act, 1956. Admittedly, the minor Bapi and the parties to this appeal are Hindu and are governed by a Hindu Minority and Guardianship Act, 1956. The natural guardian ceases to be so only under the two grounds mentioned in the proviso to the S. 6 of the Hindu Minority and Guardianship Act, 1956. Though by Section 6 of the Hindu Minority and Guardianship Act, 1956, the father of a minor has been recognized as natural guardian, yet the right is not absolute and the Court has to give paramount consideration to the welfare of the minor. Where there is a natural guardian, the person who seeks to be appointed as a guardian or to have the custody of the minor, has heavy burden on him to show that the welfare of the minor demands that the guardianship and/or custody shall be with him or her in preference to the natural guardian. Before appointing a third party in preference to natural guardian the Court should give a clear finding that the natural guardian or guardians as the case may be, are not suitable person/persons. In the instant case the mother of the minor Bapi unfortunately has already expired. But the father, the respondent is very much alive as natural guardian of the minor Bapi. It has been argued that the respondent is not a suitable person either to be the guardian of the minor Bapi or to have the custody of the said minor because (a) a criminal case under Ss. 498-A and 306 of I.P.C. is pending against the petitioner and his parents, (b) the appellant is financially more solvent than the respondent and he can take proper care for the education and up bring of the minor, (c) the minor is staying with the appellant since the death of his mother and the minor is feeling homely with the environments and surroundings prevailing in the house of the appellant which the minor would miss in the house of the respondent and thereby he may become emotionally distrubed and upset.
21. We have already stated earlier in this judgment that since a criminal case is pending we shall not deal with any matter which is subject-matter of the said criminal trial. We are not to decide whether the respondent is in any way connected with or responsible for the unfortunate death of his wife the mother of minor Bapi. But at the sametime we take note of the fact that a criminal case under Sections 498-A and 306 of I. P.C. is pending against the respondent and his parents and in connection with the said case police has submitted the charge-sheet. We shall now examine whether the pendency of such criminal case makes the respondent unsuitable to remain as guardian of the minor Bapi.
22. In Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi, . Pradipkumar was married to Kumudlata and
out of this wedlock a son and a daughter were born. Unfortunately, Kumudlata died when those children were minor. The cause of death mentioned in the post-mortem report was cardiorespiratory arrest due to some chemical poisoning…..’The husband Pradip Kumar was facing criminal charge under S. 498A, Indian Penal Code. After the death of Kumudlata the children left their father’s house and went to Jamnagore to live with the family of their mother’s brothers/sisters. Since, then both the children were living with the maternal uncle Kirtikumar, Kirtikumar brother of Kumudlata filed an application before the District Judge, Jamnagore under Guardians and Wards Act seeking a declaration that Pradipkumar the father of the children was unfit to be the guardian of the children and further prayed that he be appointed as guardian of the minor children, Paragraph 7 of the reported decision of the Hon’ble Supreme Court reads as follows:–
“Pursuant to our order dated March 27, 1992 the children namely, Vishal and Rikta are present before us in these chamber-proceedings. Their maternal uncle Kirtikumar and their father Pradipkumar are also present, Vishal and Rikta both are intelligent children. They are more matured than their age. We talked to the children exclusively for about 20/25 minutes in the chamber. Both of them are bitter about their father and narrated various episodes showing ill-treatment of their mother at the hands of their father. They categorically stated that they are not willing to live with their father. They further stated that they are very happy with their maternal uncle Kirtikumar who is looking after them very well. We tried to persuade the children to go and live with their father for some time but they refused to do so as at present. After talking to the children and assessing their state of mind, we are of the view that it would not be in the interest and welfare of the children to hand over their custody to their father Pradipkumar. We are conscious that the father, being a natural guardian, has a preferential right to the custody of his minor children but keeping in view the facts and circumstances of this case and the wishes of the children, who according to us are intelligent enough to understand their well being, we are not inclined to hand over the custody of Vishal and Rikta to their father at this stage. We, therefore, dispose of the appeal by issuing the following directions :–
(I) We hand over the custody of Vishal and Rikta, the minor children of Pradipkumar and Kumudlata deceased, to the appellant Kirtikumar who is the maternal uncle of the children.
(II) Pradipkumar, father of the children, shall be permitted by the appellant to meet the children on holidays or on any other day with prior notice to the appellant. Pradipkumar can take the children out of the appellant’s house for recreation, entertainment or for shopping with the concurrence of the children.
(III) If in due course Pradipkumar wins over the love and affection of the children, he would be at liberty to move this Court for the modification of the order regarding custody of the children.
(IV) We set aside the judgment and order dated July 24, 1991 of the learned single Judge of the High Court in Civil Revision Application 613/91.
(V) We further direct that the proceedings under the Act regarding the custody of the children before District Jamnagar and the Joint District Judge Rajkot be treated as closed.
(VI) We give the parties liberty to move this Court for modification of this order or for seeking any directions regarding the custody and the well being of Vishal and Rikta, if there is change in the circumstances or for the welfare of the children.”
It is evident from above quoted paragraph 7 of the Reported decision that though in the facts and circumstances stated therein the custody of the children were given to Kirtikumar who was the maternal uncle of the children but he was not made guardian of the children though he prayed for such Detailed discussions will be made about paragraph 7 of the Reported decision when we shall be dealing with the point relating to custody of the child. Suffice it to say that the mere fact that a criminal case under Ss. 498-A and 306 of I.P.C. is pending against the respondent by itself will not make him unsuitable to remain as guardian of the minor child Bapi.
23. The appellant and the respondent both are income-tax payee meaning thereby that both of them are having taxable income. From page 77 of the Paper Book it appears that the appellant in paragraph 24 of his amended petition, stated as follows :–
“Under the above circumstances the custody of the child may be given to the petitioner for the welfare of the child. The petitioner will take proper care and all efforts will be mae to upkeep of the minor with the assistance of his brother-in-law. Shri Swapan Kr Saha who is a well reputed businessman in Calcutta.”
Thus the appellant himself stated that with the financial assistance of other he will take proper care and all efforts will be made to upkeep the minor. The appellant is also not fully relying upon his own financial condition. We are of the view that the appellant, relying upon and on the basis of the financial condition of another person who happened to be his brother-in-law cannot claim guardianship of the minor in preference to the minor’s natural guardian.
24. It is an admitted position that after the death of Smt. Papia the minor Bapi was staying with his maternal grand-parents at Agarpara. But unfortunately the minor’s grand-mother, in the meantime has expired. The appellant himself stated in his evidence (pare 107 of the Paper Book) (SIC) out of his two living daughters elder one is reading in Buranpur Girls School at Burnpur. Admittedly Burnpur is far away from Calcutta. The appellant admitted in his evidence that at present the said daughter is not staying in the house. The youngest daughter at the time of deposition was a student of Class-V and the classes of the school are held in between 11 a.m. and 3 p.m. on week days. The appellant in paragraph 11-A of the amended petition stated that the appellant appointed one governess to look after Bapi partially and specially during the period when the daughters of the petitioner remained at the school. The appellant further stated that apart from the governess, there is one maid-servant appointed by the appellant to do the house-hold works and Bapi remained quite happy and jubilant in the custody of the appellant even after the death or demise of his maternal grand-mother. At present the minor has been admitted in a school at Kurseong and when the school remains open the minor stays at the hostel of the school at Kurseong. Therefore, at present in the house of the appellant the minor gets the company of the appellant, the youngest daughter of the appellant, the governess and the maid-servant. This arrangement itself cannot make the appellant entitled to be appointed as guardian of the minor in preference to the respondent who is a natural guardian of the minor.
25. Parents being the natural guardians have the control over the person, education and conduct of their minor, child, Parents, being the natural guardians under the Hindu Minority and Guardianship Act, 1956, as against other persons, generally have an absolute right to the custody of the child unless they have forfeited it by some gross misconduct. This absolute right of the parents has been recognised because such a right is necessary for preserving the natural order and course of the family life which is the foundation of the society and the Courts do not ordinarily interfere with parents except upon grave occasions or for reasons of urgency. The law recognises the natural rights of the parents because it recognizes the natural duties of the parents. It is the natural affection of the parents for the child which is the security for the performance of the duties towards the child and the performance of the duties alone qualifies the parents to claim the absolute right. It is the natural affection which makes them the natural guardians which has been recognised by S. 6 of the Hindu Minority and Guardianship Act, 1956. The rights of the parents are sacred rights and their duties are also sacred duties. Cruelty and gross immorality render the parents unfit to perform the sacred duties and, therefore, on proof of such misconduct they cannot be allowed to claim the sacred rights.
26. In a case reported in (1893) 1 CH 143. In Re : Mc Grath, Lindlay L. J. observed “The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of the child is not to be measured by money only nor any physical comfort only. The word ‘welfare” must be taken in its widest sense. The moral or religious welfare of the child must be considered as well a sits physical well-being. Nor can the tie of affection be disregarded.” Section 13 of the Hindu Minority and Guardianship Act, 1956 laid down that for the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration. Merely because the father is poor and the person who seeks to have the guardianship and/or custody of the child as against the father is rich by itself cannot be a ground for taking away the child from the guardianship and/or custody of the father. In the instant case the mother of the child is dead the father is alive. There is nothing on record to show that he is guilty of cruelty or immorality. There is no proof of grave occasions or reasons of urgency which may call for interference by this Court.
27. Under these circumstances we hold that the appellant could not make out any case for his appointment as a guardian of the minor, Bapi.
28. In respect of the claim of the appellant for the custody of the minor Bapi same argument was put forward by the learned Advocate for the appellant. It appears from paragraph 7 of the reported decision in Kirtikumar’s case (supra) quoted earlier in this
judgment, that both the minor children were present before the Hon’ble Judges of Supreme Court. The children’s maternal uncle and also their father were present at that time. Both the children were intelligent children and they were more matured than their age. The hon’ble Judges of Supreme Court, who rendered the decision, talked to the children exclusively for about 20/25 minutes in the chamber. Both the children were bitter about their father and narrated various episodes showing ill-treatment of their mother at the hands of their father. The children categorically stated that they were very happy with the maternal uncle Kirtikumar who was looking after them very well. The Hon’ble Judges of Supreme Court who rendered the decision tried to persuade the children to got and live with their father for some time but the children refused to do so as at present. After talking to the children and assessing their state of mind the Hon’ble Judges of Supreme Court were of the view that it would not be in the interest and welfare of the children to hand over their custody to their father Pradip Kumar. The Hon’ble Judges recorded:
“We are conscious that the father, being a natural guardian, has preferential right to the custody of his minor children but keeping in view the facts and circumstances of this case and the wishes of the children who according to us are intelligent enough to understand their well-being, we are not inclined to hand over the custody of Vishal and Rikta to their father at this stage.”
29. Thus it is evident that the father being a natural guardian has a preferential right to the custody of his minor child or children as the case may be. But in Kirtikumar’s case in view of the peculiar facts and circumstances of that case the Hon’ble Supreme Court did not hand over the custody of the children to their father at that stage. As stated earlier in this judgment, we on 15-1-97 had a talk with the child who is about four years old. On that day the child was produced before us by the appellant, maternal grand-father. Though the minor Bapi was staying with his maternal grand-father, the appellant, since the death of his mother, except for a short time when the minor remained with his father, the child before us without any hesitation stated that he wants to stay with his father. True, the child is only about four years old. But this shows that the child is missing his father which may emotionally disturb and upset the child. Neither the Hindu Minority and Guardianship Act, 1956 nor the Guardians and Wards Act, 1890 has ever disregarded the ties of affection or the prima facie right of the parents over the person, education and conduct of child, Generally speaking the best place for a child is with his parents.
30. The Courts can interfere and deprive the parent of the custody of the child when it has been satisfied that it is clearly right for the welfare of the child in some very serious and important respects that parents rights should be suspended or superseded although the parents have not been guilty of any misconduct which alone would disentitle them to the custody of the child.
31. In the instant case on the basis of the materials on record it cannot be said that the father is guilty of any misconduct. No serious and important matter has been brought to the notice of the Court on the basis of which the Court can be satisfied to interfere with and deprive the respondent of the custody of his minor child Bapi. A Division Bench of Hon’ble Kerala High Court in C. Madhavan Nair v. Viswanathan, reported in 1977 Ker LT 479 laid down the following principles relevant to the custody of child :–
(i) There is a presumption in favour of the natural guardian as opposed to those who are not natural guardians.
(ii) the claim of the natural guardian to the custody of the child should ordinarily be accepted.
(iii) the claim of the natural guardian should be rejected if he is not fit to be the guardian or for some other reason giving custody to him is not conducive to the child’ welfare.
We respectfully agree with the aforesaid principles laid down by the ld. Division Bench of the Hon’s Kerals High Court.
32. S. R. Das, J. observed in the case in AIR 1944 Cal 433 In re Love Joy Patell as follows :–
“The grounds on which the Court of Chancery has interfered with the parents’ rights are, classified in part 11, Chapt. 7, Section 5, pages 106-112 of Simpson on the Law of Infants, End. 4 under five heads, viz., (1) unfitness in character and conduct, e.g., that the parents have been guilty or cruelty of immorality; (2) unfitness is external circumstances, e.g. poverty combined with other reasons; (3) waiver of their rights e.g., allowing the child to be brought upon in a higher social position; (4) agreement between husband & wife on marriage or on separation or agreement by father with a third party where the agreement has been acted upon, so that a revocation or it would injuriously affect the child; and (5) where the father is or intendes to go out of the jurisdiction. These principles have been recognized and acted upon by Courts in this country.”
In the instant case none of the aforesaid grounds on which the Court may interfere with the parents right is existing.
33. In Munnodiyil Peravakutty v. Kuniyedath Chalil Velayudhan, the ld. Division Bench of the Hon’ble Kerala High Court in paragraph 6 of the Reported decision observed as follows :–
“Capacity of the custodian to supply the daily necessities such as food, clothing & shelter is the primary consideration. Secondly the education of the child. The custodian must possess the capacity to create surroundings in which the child will be in touch with education. In the case of a custodian who is himself educated and given to reading and writing it is easier for the child to keep itself abreast or letter. If the custodian is not educated, he cannot create the requisite background, in the home. Thirdly awareness of the need to keep good health and the capacity to provide the means of keeping good health is another important factor. Fourthly a knowledgeable parent would greatly contribute to the child’ welfare by taking steps like emphasising healthy eating habits, providing for vaccination, other measures of health care, timely treatment and the company of the books. Less educated or ignorant parents may not be able to create these conditions. Fifthly the economic capacity to educate in good school, with private coaching, where necessary, meeting expenses of transport, children’s excursions and so on is no less an important factor.
We do not suggest that the question of custody should be decided upon consideration as to which of the two rival claimants is more affluent. While economic condition of a claimant to the custody is an important factor, no less important a factor is: which of the rival claimants to the custody shows greater concern for the welfare of the child? The child does not grow merely on food and clothing, the growth of its personality needs love of parents, the denial of which warps the mind and distorts the vision of life. A barren life, devoid of emotional attachment, love of parents, brothers and sisters and even of friends, retards and impairs growth of a child. Therefore, the sum and substance of the matter is neither economic affluence nor a deep mental or emotional concern for the well being of the child, by itself is determinative of, where the welfare of the child lies. The answer depends upon the balancing of all these factors and determining what is best for the child’s total well being. That is what we how porpose to do.”
In the instant case from evidence it appears that the respondent lives with his parents and brothers. The respondent’s father is a retired railway employee and respondent’s mother is a housewife. Whereas the persons who stay at the residents of the appellant are the appellant himself his youngest daughter who is a school student, a governess and a maid-servant. In the respondent’s family the minor would get love of his father constant company of his paternal grand parents and uncle. In fact the respondent’s father being a retired Government employee and the mother being a house-wife can always give company to the minor Bapi, which will help the growth of the minor’s personality, emotional attachment, love for family members.
34. It was argued on behalf of the appellant that the respondent himself agreed to keep the minor with the appellant and not only that he also filed a petition for recording his consent. It was argued that now the respondent cannot claim custody of the minor Bapi. In this connection it is sufficient to refer to Annie Besant v. Narayaniah, reported in (1914) 41 Ind App 314 : (AIR 1914 PC 41), In that case the Judicial Committee laid down the following principles :–
“There is no difference in this respect between English and Hindu Law. As in this country so among the Hindus, the father is the natural guardian of his children during their minorities, but this guardianship is in the nature of a sacred trust, and he cannot, therefore, during his lifetime substitute another person to be guardian in his place. He may, it is true, in the exercise of his discretion as guardian, entrust the custody and education of his children to another, but the authority he thus confers is essentially a revocable authority, and if the welfare of his children require it, he can, notwithstanding any contract to the contrary take such custody and education once more into his own hands. If, however, the authority has been acted upon in such a way as, in the opinion of the Court exercising the jurisdiction of the crown over infants, to create associations or give rise to expectations on the part of the infants which it would be undesirable in their interests disturb or disappoint, such Court will interfere to prevent its revocation: (1821) Jacob 245.”
In the instant case also the respondent already stated that the arrangement made was absolutely temporary and such arrangement was made in the circumstances prevailing at that point of time. This Court is of the view that the respondent did not commit any wrong by withdrawing the consent.
35. Considering all aspects of the matter as discussed herein above, we dispose of the appeal with the following directions.
(a) The prayer of the appellant for his appointment as a guardian of the minor is rejected.
(b) The custody of the child, who is at present staying with the respondent, shall be with the respondent. The respondent shall be at liberty to take any proper step which is conducive to the welfare of the infant. If the respondent gets the minor admitted in a new school then he should intimate the name of the school to the ld. Advocate for the appellant.
(c) The appellant, maternal-grand-father of the minor, is permitted to meet the minor with the minor shall be staying with the respondent with prior notice to the respondent.
(d) Liberty is given to the parties to move this Hon’ble High Court for modification of this order and/or for seeking any direction regarding the custody and well-being of the minor Debankur Pramanik alias Bapi, if in the future, situation so demands or if the respondent is taken into custody pursuant to an order passed by the learned Court in connection with the criminal case now pending against him under Sections 498-A and 306, I.P.C. or if he is convicted in the said criminal case.
36. We, therefore, dispose of the appeal with the above directions.
37. There will be no order as to costs.
Tarun Chatterjee, J.
38. I agree.
39. Order accordingly.