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Premchand Goel-vs-Sanjay Dalmia on 30 April, 2002

Madras High Court Premchand Goel-vs-Sanjay Dalmia on 30 April, 2002
Equivalent citations:II (2002) DMC 496, (2002) 2 MLJ 399
Author: K Sampath
Bench: K Sampath

ORDER

K. Sampath, J.

1. The application has been filed under Section 12 of the Guardians and Wards Act, 1890 read with Order 4, Rule 8 of the Original Sides Rules for a direction to the respondent to produce minor Piyush before the Court and grant his interim custody to the applicant.

2. The original Petition has been filed under Sections 3 and 7 to 10 of the Guardians and Wards Act read with O.21, Rules 2 and 3 of the High Court’s Original Side Rules for the appointment of the petitioner as the guardian of minor Piyush.

3. The petitioner is the maternal grandfather of the minor. The respondent is the father. The case of the petitioner is as follows: His daughter Archana Goel and the respondent were married on 22.1.1999 at Chennai. They were living along with the respondent’s family members at No. 1, Third Lane, Baroda Street, West Mambalam, Chennai-600 033. Piyusyh was born to them on 22.2.2000. Ever since her marriage, the respondent and his family members were harassing her with demand for more and more dowry. The petitioner left no stone unturned to meet the demands of the respondent and his family membeRs. The respondent’s greed for dowry was insatiable and Archana’s life became more and more miserable due to this. The harassment culminated in the murder of Archana on 30.1.2001 by the respondent and his family membeRs. The respondent’s parents and sisters were arrested by the Inspector of Police, R-3 Police Station, Chennai. They were subsequently released on bail. They tried to tamper with the investigation with the active assistance of an Inspector of Police in an attempt to convert the murder into a case of suicide. The petitioner’s son Rajesh Kumar Goel filed Criminal O.P. No. 2656 of 2001 before this Court. By order dated 27.2.2002 this Court directed the investigation of the case to be handed over to C.B. C.I.D. Chennai, observing that all was not well with the investigation. Pursuant to the said transfer of the investigation, the respondent and his family members were rearrested. The petitioner himself filed H.C.P. No. 375 of 2001 seeking the production and custody of his grandson Piyush. By order dated 30.3.2001 a Division Bench of this Court dismissed the petition on the ground that it was not the correct forum for claiming custody of the minor. The bail order was cancelled. This was also confirmed by the High Court. Subsequently, the respondent was released on bail on 25.7.2001. From the manner in which the petitioner’s daughter Archana was harassed and murdered in gruesome manner for greed of dowry, it is beyond doubt that the life of the minor itself is in danger. Further, the respondent and his family members having been actively involved in the criminal case, the atmosphere surrounding the minor child is vitiated and is definitely not conducive for the healthy up bringing of the child. Mere physical upkeep of the child cannot be the lone criterion to build the well-being of the child. The atmosphere in the residence of the respondent being negatively surcharged, it is the least conducive place to a child to grow up in life. The petitioner, his two sons and their three children are residing together and constitute a healthy joint family. They are financially well placed. Therefore, it is extremely conducive for the well-being of the child both physically and mentally to grow with them. The respondent, who was actively involved in the gruesome murder of Archana, is unfit to continue as guardian of minor Piyush. Further, his act having arisen due to extreme greed, absolute hatred and malice to deceased Archana, it is very unlikely that the respondent will treat the child any different. By conduct the respondent has rendered himself incompetent and incapable of being the guardian of the minor. The respondent’s mother is an aged person, who will not be able to take care of the child, which at the time of filing the petition in August, 2001 was only 18 months old. This apart, the respondent and his family members being charged under Sections 498A and 304B of the Indian Penal Code and under Secs. 4 and 6(2) of the Dowry Prohibition Act and the long battle ahead, neither the respondent nor any of his family members will be competent or fit to take care of the minor child. The petitioner, proposed guardian, is a business man and doing transport business for the past 40 yeaRs. He is an income tax assessee. Both his sons and their respective wives and children are residing with him. He is in good circumstances and having an income of Rs. 1 lakh per year. He is of good character and reputation and having good business and he is a fit and proper person to be appointed as guardian of the person of the minor.

4. The original petition was filed on 10.8.2001. It was returned for certain compliance on 23.8.2001 and service on the respondent took sometime on account of the fact that the respondent had shifted his residence from No. 1, Third Lane, Baroda Street, West Mambalam, Chennai-600 033, to his present address at 6th Block, No. 409, M.M.D.A. Colony, Mathuraivoyal, Chennai. From the submissions made by counsel, it appears that it took sometime for the petitioner to locate the new address of the respondent and to complete service. Why the above details are given, is because the learned counsel for the respondent Mr. P.R. Raman made a point of the fact that the petitioner had taken his own time to pursue the matter. The fault was not his.

5. Along with the petition the petitioner/applicant filed an application in A.No. 4153 of 2001 for production of the minor and interim custody.

6. The affidavit in support of the application reiterates the contents in the main petition and it is not necessary to set out the same in detail.

7. The respondent has filed a counter and an additional counter and the contents are as under:

The marriage between the respondent and Archana on 22.1.1999 was an arranged marriage. Though initially the couple were happy, due to her mother’s untimely death and certain other problems relating to her family, Archana became depressed and used to cry often. On 22.1.2001 the wedding anniversary of Archana and the respondent as also the engagement ceremony of the respondent’s younger sister Madhuri were celebrated at Hotel Sindhoori. Archana actively participated in the celebration and was very happy. The petitioner and his family members also attended the function. The tragedy that followed was not expected by anybody. In fact, he had booked rail tickets for himself and his wife to go to Kulu-Manalai and other places on a holiday on 23.2.2002, i.e. one day after the child’s first birthday. On 29.1.2001 Archana was very depressed after the couple returned late in the evening from a marriage function and she was crying. The respondent tried to speak with her father, but her brother picked up the phone. She interrupted and disconnected the line telling the respondent not to speak. The next day, i.e., on 30.1.2001 the respondent’s father and younger brother left with him to the factory at about 9 a.m. and shortly thereafter, the father returned home to pick up the respondent’s mother and went to see a relative of the petitioner, who was ill. Around 11 a.m. a lady came running to the factory, which was close to the house shouting that Archana was on fire. The respondent and others rushed and found Archana dead on the terrace and the respondent’s sister also suffering from burn injury. At that stage, the petitioner had given a statement to the police out of free will that his daughter was feeling depressed after her mother’s death and therefore committed suicide. There was no mention about any dowry demand or harassment by the respondent or any members of his family. However, after a few days, the petitioner, apparently on being goaded into changing this version had given a complaint to the police, following which a case was registered. Though the respondent and his family members were arrested, they obtained bail. However, on the petitioner’s application, the bail was cancelled. In the meantime, the petitioner filed H.C.P. No. 375 of 2001 before this Court and by order dated 30.3.2001 the petition was dismissed with the observation that the child was under the protective care of the father and his paternal relations. The Division Bench further observed that no material had been placed before it to show that the custody of the child by the father and the paternal relations would operate adversely to the interest of the child. The child was also produced before the learned Judges and it was observed that the child was being properly looked after. The petitioner has not produced any specific proof that the child is being ill treated or in any manner neglected. On the other hand, the respondent is taking all extra efforts to see that his son does not miss a mother’s care and attention. It is nothing but malicious to suggest otherwise. Pursuant to the cancellation of bail, the respondent and his family members excluding his younger sister were in prison for several weeks before which bail was granted again. The petitioner had initially influenced the police to file a case under Section 302, I.P.C. against the respondent and his family members alleging that they had none of them including the respondent’s younger sister, who tried to save Archana, was even present in the house when the incident occurred, the murder charge was dropped and altered to Section 404-B. During the period the respondent and his people were inside the prison, his younger sister Madhuri was looking after the child. After their release, they continued to live as a joint family though in a different residence. The respondent’s sister’s engagement was broken due to Archana’s demise. The mother and the father of the respondent are 51 and 55 years respectively and they are in good health and help him in looking after the child. His younger brother Ajay who is aged 25 years lives with them. They have a factory manufacturing food products and they are quite well placed financially. The allegation regarding presentation of Rs. 9 lakhs worth moveables and Rs. 1 lakh by cash to the respondent is false. Equally, the allegation of harassment of Archana for dowry is also false. The petitioner gave some gifts in the form of jewellery to Archana at the time of the marriage amounting to the value of Rs. 1 lakh. Even these jewels were taken by Archana and given back to clear her brother’s debts. The petitioner filed Crl.O.P. No. 2656 of 2001 without making the respondent a party and obtained an order of change of investigation. The petitioner has not disclosed that the H.C.P. was dismissed on merits. It is not correct to say that the child’s life is in danger.

The respondent is more interested in the child’s personal safety than the petitioner. The petitioner chose to file the petition in August, 2001 when the order was passed by this Court rejecting the H.C.P. on 30.3.2001 itself. Having filed the petition after five months of the order in the H.C.P., the petitioner has not chosen to move the application till 30.3.2001 when the respondent received notice. This would itself show the true intentions behind the petitioner’s present stand for interim custody. It is only another tool for harassing the respondent and his family. It is not as though the respondent and his family members are busy with the criminal case 24 hours a day. The case is called usually once in a month till the stage of trial.

As regards the allegation that the atmosphere in the house of the respondent is not conductive, it is unfortunate and false. The Division Bench of this Court found at the respondent has not incurred any disqualification to be deposed as guardian of his son. The child is even now looked after with all the love and care necessary for the development. The child cannot be left with the petitioner and his family, who are strangers even for a short while. It would damage the child’s psychology. If custody is given to strangers, the child would be denied the natural atmosphere and company of his father and family. The balance of convenience is clearly in favour of the respondent. The application has to be dismissed.

8. The additional counter affidavit states as follows:

The respondent has filed a detailed counter affidavit in the H.C.P., wherein it is stated that the petitioner and his son did not see eye to eye and there were misunderstandings between them. In these circumstances, after the demise of Archana, the petitioner has been not only mentally depressed, but his health has also suffered. In fact, he failed to appear in the Criminal Court to give evidence on more than one occasion due to his ill-health. He filed medical certificate claiming that he was too ill to attend Court proceedings. Both the sons of the petitioner are married and they have their own children. There would be absolutely no attention or care for the minor in their household. The petitioner’s daughters-in-law would be preoccupied with attending on their children. The child would feel completely abandoned and bereft of love and affection most essential for his normal development. Any order for interim injunction of the child would devastate the emotional and mental development of the child. The respondent’s younger sister and his mother would look after the needs of the child with motherly care and affection while he will spend all his attention on him. The petitioner’s household will not afford healthy and congenial atmosphere for the child to be brought up. The respondent is not guilty of any dowry demand or cruelty to his wife. He and his family members have been unnecessarily hounded and humiliated by the petitioner and his sons. Balance of convenience is clearly in favour of letting the status quo to continue.

9. Mr. G. Anbumani, learned counsel for the petitioner and Mr.P.R. Raman, learned counsel for the respondent made elaborate submissions. They also referred to relevant documents relied on in support of their respective stands.

10. There can be no dispute that the Court has power to appoint a temporary guardian pending disposal of the main petition. Section 12(1) of the Guardians and Wards Act provides as follows: “The Court may direct that the person if any, having the custody of the minor shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.”

It is not necessary to refer to Sub-sections (2) and (3). It is established legal position that in the matter of custody of minors, the welfare of the minor should be the paramount consideration. It is equally well established that the father as the natural guardian of the child has a right to have custody of the child. It is only in extreme cases such as delinquency, poverty or illiteracy of the father, his claims for the custody of the child, can be discarded. The balance will always tilt in favour of the welfare of the child, and as already noted, it being of paramount and supreme importance. The normal rule under the Guardians and Wards Act is that the father is entitled to guardianship and custody of the minor children. If, of course, there are circumstances which make it undesirable for the father to be custodian of his minor children, the custody of the minor can be transferred to the mother or to some other person as the Court may decide. The mere fact that a child does not recognise the mother or a grandparent and weeps for the effort by that person to take the child with him which is natural, it cannot be said that it would not be in his interest to change the custody. The over-riding consideration in all cases is the interest of the child and all other claims of rival parties must be subordinate to it.

11. Bearing the above principles in mind, let us have a look at the facts of the case. The parties were married on 22.1.1999. The minor was born on 22.2.2000. The mother of the minor, Archana died on 30.1.2001. Whether it is a case of dowry or a case of suicide is to be decided in the pending trial against the respondent, his parents and brother and sister. The F.I.R. was filed on 30.1.2001, the date of the death at 12 houRs. The F.I.R. is in Tamil and the petitioner disputes the contents. Apparently, the petitioner wanted to get the body of Archana given to him for performing the rites. Mr.Raman relied on the contents of the F.I.R. and submitted that to start with the petitioner had taken a stand that Archana was in a state of depression ever since her mother’s death and on account of that she had committed suicide by dousing herself with kerosene.

12. I have gone through the F.I.R. It is very unlikely that the applicant/ petitioner is the author of the contents of the F.I.R, He must have been pretty dazed at the time he is stated to have signed the complaint to the police. It is also stated that he is not conversant with Tamil. The incident is stated to have taken place between 10.15 and 11.30 a.m. and the applicant came to know about it at 11.20 a.m. on telephone. The applicant is stated to have signed the complaint at 12 noon. From the tenor of the F.I.R., I have absolutely no hesitation in holding that somebody had prepared it to the dictation of some interested person and the applicant was made to sign. Perhaps in his anxiety to get back the body of his daughter, he had signed it on dotted lines. It is also not known as to why the respondent is nowhere in the scene and how he did not evince any interest in getting the body of his wife. One can very well visualise the mental torture the father would have undergone when the tragedy came to be reported to him. In my view, the complaint attributed to the applicant is a doctored document and absolutely no reliance can be placed on it. One cannot also put it past the police force. I do not wish to state anything more. The death was indeed unnatural. I do not accept the contention on behalf of the respondent that all was well with the marital life of Archana and the respondent.

13. Much reliance is placed on the order in the H.C.P by a Bench of this Court. It is worthwhile referring to paragraph 2 of the order passed on 30.3.2001. As would be evident from the order, the Bench was concerned only with the illegal detention of the person concerned. The child was with the natural guardian, viz., the father had according to the Bench, there was no material placed before it, which would go to show that the custody of the child by his father and paternal relations would operate adversely to the interest of the child at that time. The Bench was not intimated about the order passed in Crl.O.P Nos. 2656 of 2001 and 3279 of 2001. Both the petitions were filed by the applicant’s/petitioner’s son Rajesh Kumar Goel for a direction to the third respondent in those O.Ps., viz., the Commissioner of Police, Chennai, to change the investigation in Crime No. 187 of 2001 (relating to the death of Archana) from the file of the first respondent, viz., Inspector of Police, R-3 Police Station, and direct some other competent Investigating Agency to investigate the complaint and also for the transfer of the case on the file of R-3 Police Station, Chennai-78, in the said crime and direct the third respondent Commissioner to hand over the same to C.B., C.I.D. and direct C.B., C.I.D., to take action in accordance with law against the respondent, his parents, brother and sister, who are involved in the case.

14. Before the learned Judge, while the Criminal O.Ps. were being argued, certain photographs said to have been taken in the terrace where the body of Archana was found in the presence of the Investigating Agency, were produced and one of the photographs revealed the presence of broken bangles in the stair case leading to the open terrace. It was also contended that the deceased was assaulted and subsequently her body was burnt. Attention of the Court was drawn to the post-mortem certificate where the doctor who did autopsy over the body of the deceased, found not only burn injuries, but also dried up streaks of blood stains over the outer aspect of the left fore-arm and left palm with small lacerations on the lateral aspect of left thinner eminence and superficial split laceration on the dorsal of left hand in the second metacarpal region (index finger) 4x5x1 cms. It is further noticed in the order of the learned Judge that on internal dissection, the Doctor found brushing of the scalp over the vault of the skull and also on the left temporal region and that there was extensive extra cranial haemotome over the vault of the skull measuring 8 x 7 x 6.2 cms. The doctor also found a thin film of subdural haemorrhage all over the brain. Notwithstanding these injuries, the Doctor gave an opinion that the deceased would appear to have died of shock due to burns. In the opinion of the learned Judge, there was enough medical evidence to conclude that ante-mortem injuries were inflicted on the body of the deceased. Thus there was a suspicion raised that all was not well with the investigation. Again, the post-mortem certificate revealed severe injuries on the head of the deceased. So opining, the learned Judge allowed both the petitions and ordered investigation to be handed over to the C.B., C.I.D., Chennai. Thereafter, final report was filed under Section 173(1)(i) of the Code of Criminal Procedure and the final report made out the following offences against the accused: Charge under Secs. 498A and 304B, I.P.C. and Secs. 4 and 6(2) of the Dowry Prohibition Act. The relevant portion of the final report is as follows:

“During the period from 22nd January, 1999 and 30th January, 2001 at No. 1, 3rd Lane, Baroda Street, West Mambalam, Chennai-33, the accused A-1 to A-5 with a common intention of demanding dowry from the parents of Archana Dalmia, wife of Sanjay Dalmia (A-1), Subjected her to harassment and cruelty and due to (he wilful conducl of the accused above, Archana Datmia was driven to commit suicide on 30.1.2001 at 10.30 a.m. on the terrace of the house of A-1 by setting herself on fire by pouring Kerosene and varnish on her body as the further dowry demand of Rs. 5 lakhs on 23,1.2001 could not be given by her father. Thereby, the accused 1 to 5 appear to have committed the offence under Secs. 498A and 304B, I.P.C.

The accused 1 to 5 demanded a sum of Rs. 5 lakhs in order to arrange to the marriage of A-5 and thereby A-l to A-5 appear to have committed an offence punishable under Section 4 of the Dowry Prohibition Act, The accused A-l to A-5 in pursuance of their common intention of committing misappropriation of the property given at the time of the marriage, parted with the surrender value of Rs. 28,574 obtained by surrendering two L.I.C. policies in the name of deceased Archana Dalmia, also her jewels, furniture, household things of the value of Rs. 9 lakhs, Rs. 1 lakh worth Indira Vikas Patra and two remaining L.I.C. policies in the name of deceased Archana Dalmia. Hence the accused A-l to A-5 appear to have committed offence punishable under Section 6(2) of the Dowry Prohibition Act.”

15. No doubt, Mr. Raman submitted that the offence is only under Section 304B and not under Section 302, I.P.C. Section 304B is not very different from an offence punishable under Section 302. Section 304B runs as follows:

“Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, on in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her dealh.”

and the Supreme Court has held that this Section is more stringent than Section 498A, I.P.C. Sony Devraj Bhai v. State of Gujarat, .

16. Section 498A deals with cruelty by husband or relatives of husband. Sees. 4 and 6(2) of the Dowry Prohibition Act relate to penalty for demanding dowry and Section 6 requires that the dowry received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman and pending such transfer, shall hold it in trust for the benefit of the woman.

17. It is also seen from the final report that the respondent had obtained Rs. 28,574 by surrendering two L.I.C. policies in the name of Archana. May be the respondent is innocent. But, there is. allegation against the respondent that he had caused the death of is wife Archana for dowry. The allegations against the respondent are very serious in nature. The mere fact that the child looked well fed when it was produced before the Bench, which heard the H.C.P. is not enough. The Bench has in no uncertain terms said that it was up to the petitioner herein to agitate the matter before the proper forum.

18. It is pointed out in Rajaiah v. Dhanapal, , that the welfare of the minor children is not to be measured only in terms of money and physical comforts. The word “welfare” must be taken in its widest sense. The morality and ethical welfare of the child must also weight with the Court as well as its physical well being. Whenever a question arises before a Court pertaining to the custody of a minor child, as already noticed, the matter is to be decided not only on consideration of legal rights of parties, but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. The legal rights of the father must be understood subject to the provisions of Section 17 of the Act, which says that the Court should be guided by the sole consideration of the welfare of the minor and what would be for the welfare of the minor must necessarily depend upon the facts and circumstances of each particular case.

19. As pointed out in Simla Devi v. Subhas Chandra Yadav, , it is enough that if there is such an allegation

against the respondent that he had caused the death of his wife for dowry and even if it is presumed that this allegation is false, still unless he is exonerated, it is not proper to allow him to continue to have custody of the minor child. No doubt, as pointed out in the judgment of the supreme Court in Kirtikumar Maheshankar Joshi v. Paradipkumar Karunashanker Joshi, , the father being the natural guardian has indeed a preferential right to the custody of his minor children. But one must keep in view the facts and circumstances of the particular case on hand. In the case decided by the Supreme Court, the cause of death mentioned in the post-mortem report was cardiac respiratory arrest due to some chemical poisoning. The husband in that case was facing criminal charge under Section 498A, I.P.C. The Supreme Court felt that it would not be in the interest of the minors concerned in that case to be left in the custody of the father. May be, the children in that case had reached the age of discretion and their wishes were ascertained by the Supreme Court of before making such an order. Still the principle would apply to the facts of the present case.

20. On the materials, I am prima facie satisfied that this is a case where the tender child should not be allowed to continue in the custody of the respondent. Consequently, the respondent shall hand over the custody of the child to the petitioner, who is the maternal grandfather of the child within a week from today. He is however permitted to see the child once a week with prior notice to the petitioner. The child is of tender age and it is very unlikely that any serious problem will be faced by the child only by reason of the fact that its custody is changed from the father to the material grandfather. The application is ordered accordingly.

21. This is only a temporary arrangement and subject to the decision in main O.P. Posted the original petition in the first week of August, 2002.

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