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Rajinder Kumar Mehta vs Rinkesh Malhotra on 26 March, 2019

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

FAO-2256-2019 (OM)
Date of Decision: 26.03.2019

Rajinder Kumar Mehta and Others …….Appellants

Versus

Rinkesh Malhotra …..Respondent

CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN
HON’BLE MR. JUSTICE HARNARESH SINGH GILL

Present: Mr. Abhimanyu Kalsy, Advocate, for the appellants.

Harnaresh Singh Gill, J.

This appeal is directed against the order dated

03.12.2018 passed by the learned Guardian Judge, Ludhiana,

whereby petition under Sections 8, 12 and 25 of the Guardian

and Wards Act, 1890 (for short `the Act’), filed by respondent-

Rinkesh Malhotra, being the father of the minor children, has

been allowed and the custody of the children is handed over to

him.

Shorn of all unnecessary details, admitted facts on

record are that respondent-Rinkesh Malhotra was married to

late Chetna Mehta, daughter of appellant Nos. 1 and 2 and

sister of appellant No.3, on 12.9.2005. Two children were born

out of the said wedlock. Chetna Mehta committed suicide on

24.4.2014 regarding which FIR No.26 dated 25.4.2014 under

Section 306 IPC was registered at Police Station Division No.3,

Ludhiana, against the respondent. The respondent was arrested

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and after having faced the trial, he was acquitted of the charges

levelled against him. Pursuant to his acquittal, he sought

custody of the children, namely, daughter-Angel Malhotra aged 9

years and son-Ansuman Malhotra aged 6 years, who were living

with the maternal grandparents, after their mother had

committed suicide and the respondent was involved in the FIR

registered for the said offence.

The petition filed by the respondent was resisted by

the appellants by filing a written statement averring therein that

Chetna Malhotra, mother of the minors, had committed suicide

on account of the abetment of the respondent; that the

respondent was not paying maintenance to the children; that the

respondent had abandoned the children and that the appellants

were capable of bringing up the children and giving them proper

education.

On the pleadings, the learned trial Court framed the

following issues:-

1. Whether the petitioner is entitled for the

custody of the minor daughter and son as

prayed for? OPP

2. Whether this Court has no jurisdiction to

decide the present petition? OPR

3. Relief.

Parties led their respective evidence.

Under issue No.1, the onus to prove whereof was on

the respondent, the learned trial Court, after having appreciated

the evidence on record, returned a finding that it could not be

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shown as to in what manner, the respondent was not competent

to have the custody of the children. Besides, the respondent had

also examined his mother as RW-2 Poonam Malhotra, to prove

that apart from him, his mother is also there to take care of the

children. The learned trial Court, after having examined the

documents Ex.R1 to R.6, came to the conclusion that having

regard to the poor attendance of the children in the School, it

appeared that the children were not being provided best of the

education by the appellants. After having personal interaction

with the children, the learned trial Court came to the conclusion

that the desire of the children to remain with their maternal

grandparents is because of their tender age leading to

indecisiveness on their part. It was found that merely because

FIR under Section 306 IPC was registered against the appellant

for the alleged abetment of suicide of his wife, could not be a

ground to deprive him the custody of the children, especially

when he stood acquitted in the said proceedings. It was further

found that though the appellants had resources to maintain the

children, yet money could be taken to be the only consideration.

Considering the fact that both the children are minor

and not intelligent enough to understand their well being, the

learned trial Court, found the respondent-father, fit to have their

custody, as compared to their old aged maternal grandparents.

Thus, issue No.1 was decided in favour of the respondent and

against the appellants.

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As the parties as also the minor children, were living

at Ludhiana, issue No.2 regarding jurisdiction, was decided in

favour of the respondent-husband and against the appellants.

Learned counsel appearing for the appellants has

argued that respondent was booked for the abetment of suicide

of his wife (mother of the minor children). Though, he has since

been acquitted, yet it remains imprinted in the minds of the

children that it was their father, who drove their mother to

commit suicide. It is further argued that with this impression in

the minds of the children, it would not be possible for them to

reside with their father and expect and express any love and

affection. Thus, even if the custody of the children is handed

over to the respondent, still the aforesaid incident would

continue to haunt them for all times to come. This aspect,

according to the learned counsel, has been totally brushed aside

by the learned trial Court, while passing the impugned order.

We have heard learned counsel for the appellants,

but we do not find any merit in the present appeal.

For determining the question of competence of the

husband’s application under Section 25 of the Act, it is

necessary to examine the scheme of the Act as also the relevant

provisions of the Indian Divorce Act. The Act was enacted in

order to consolidate and amend the law relating to Guardians

and Wards. But as provided by Section 3, the Act is not to be

constructed, inter-alia, to take away power possessed by any

High Court. The provisions of Sections 17 and 19 of the Act are

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to be considered by the Court in appointing or declaring

guardian. The said provisions read as under:-

“17 . Matter to be considered by the Court in appointing
guardian.- (1) In appointing or declaring the guardian of
a minor, the Court shall, subject to the provisions of this
section, be guided by what, consistently with the law to
which the minor is subject, appears in the
circumstances to be for the welfare of the minor.

In considering what will be for the welfare of the
minor, the Courts shall have regard to the age, sex and
religion of the minor, the character and capacity of the
proposed guardian and his nearness of kin to the minor,
the wishes, if any, of a deceased parent, and any
existing or previous relations of the proposed guardian
with the minor or his property.

If the minor is old enough to form an intelligent
preference, the Court may consider that preference.

The Court shall not appoint or declare any person
to be a guardian against his will.

xx xx xx
19 . Guardian not to be appointed by the Court in

certain cases.- Nothing in this Chapter shall authorise
the Court to appoint or declare a guardian of the
property of a minor whose property is under the
superintendence of a Court of Wards or to appoint or
declare a guardian of the person of a minor who is
married female and whose husband is not, in the
opinion of Court, unfit to be guardian of her person, or
of a minor whose father is living and is not in the
opinion of the Court, unfit to be guardian of the person
of the minor, or of a minor whose property is under the
superintendence of a Court of Wards competent to
appoint a guardian of the person of the minor.”

The Hon’ble Supreme Court of India in Rosy Jacob

Vs. Jacob A. Chakramakkal, (1973)1 SCC 840, held as under:-

“14. In our opinion, Section 25 of the Guardians And
Wards Act contemplates not only actual physical
custody but also constructive custody of the guardian

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which term includes all categories of guardians. The
object and purpose of this provision being ex facie to
ensure the welfare of the minor ward, which necessarily
involves due protection of the right of his guardian to
properly look after the ward’s health, maintenance end
education, this section demands reasonably liberal
interpretation so as to effectuate that object. Hyper-
technicalities should not be allowed to deprive the
guardian of the necessary assistance from the Court in
effectively discharging his duties and obligations
towards his ward so as to promote the latter’s welfare. If
the Court under the
Divorce Act cannot make any order
with respect to the custody of Ajit: alias Andrew and
Maya alias Mary and it is not open to the Court under
the Guardians and
Wards Act to appoint or declare
guardian of the person of his children under
Section 19
during his lifetime, if the Courts does not consider him
unfit, then, the only provision to which the father can
have resort for his children’s custody is
Section 25.
Without, therefore, laying down exhaustively the
circumstances in which
Section 25 can be invoked, in
our opinion, on the facts and circumstances of this case
the husband’s application under
Section 25 was
competent with respect to the two elder children. The
Court was entitled to consider all the disputed questions
of fact or law properly raised before it relating to these
two children. With respect to Mahesh alias Thomas,
however, the Court under the
Divorce Act is at present
empowered to make suitable orders relating to his
custody, maintenance and education. It is therefore,
somewhat difficult to impute to the Legislature an
intention to set up another parallel Court to deal with
the question of the custody of a minor which is within
the power of a competent Court under the
Divorce Act.
We are unable to accede to the respondent’s suggestion
that his application should be considered to have been
preferred for appointing or declaring him as a guardian.

But whether the respondent’s prayer for custody of the
minor children be considered under the Guardians and
Wards Act or under the Indian Divorce Act, as observed
by Maharajan J., with which observation we entirely
agree, “the controlling consideration governing the
custody of the children is the welfare of the children

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concerned and not the right of their parents”, It was not
disputed that under the
Indian Divorce Act this is the
controlling consideration. The Court’s power under
Section 25 of the Guardians and Wards Act is also, in
our opinion, to be governed primarily by the
consideration of the welfare of the minors concerned.
The discretion vested in the Court is, as is the case with
all judicial discretions to be exercised judiciously in the
background of all the relevant facts and circumstances.
Each case has to be decided on its own facts and other
cases can hardly serve as binding precedents, the facts
of two cases in this respect being seldom-if ever
identical. The contention that if the husband is not unfit
to be the guardian of his minor children, then, the
question of their welfare does not at all arise is to state
the proposition a bit too broadly and may at times be
somewhat misleading. It does not take full notice of the
real core of the statutory purpose. In our opinion, the
dominant consideration in making orders under
Section
25 is the welfare of the minor children and in
considering this question due regard has of course to be
paid to the right of the father to be the guardian and
also to all other relevant factors having a bearing on the
minor’s welfare. There is a presumption that a minor’s
parents would do their very best to promote their
children’s welfare and, if necessary, would not grudge
any sacrifice of their own personal interest and
pleasure. This presumption arises because of the
natural, selfless affection normally expected from the
parents for their children.”

Admittedly, in the present case, the respondent-

father has a preferential right regarding the custody of the minor

children, being the natural guardian. Undisputed also is the

position as regards the respondent’s acquittal of the offence

under Section 306 IPC. We cannot lose sight of the fact that in

such cases, where pursuant to the suicide of the mother,

without knowing the circumstances leading to the death and

further without waiting for the outcome of the criminal trial, if

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the minors are put in the custody of the maternal grandparents,

they would always end up in believing anything against the

father. In this case, as of now, the children are of the age of 11

years and 8 years respectively. Thus, the trial Court’s finding

that the respondent-father should be allowed to exercise his

right of custody of the children, cannot be found fault with. With

the growing age and truth emerging regarding the actual reasons

for their mother’s death, the minors would be in a position to

fully understand their welfare and further adapt to and accept

the love, affection and care, provided by their father.

In view of the above, we do not find any illegality or

infirmity in the order passed by the learned trial Court, which

may warrant interference by this Court in the present appeal.

Hence, the present appeal is dismissed.

(RAKESH KUMAR JAIN) (HARNARESH SINGH GILL)
JUDGE JUDGE

26.03.2019
ds

Whether Speaking/ Reasoned: Yes/ No
Whether Reportable: Yes/ No

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