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Ramesh vs Smt. Bhanwarbai on 18 March, 2020

1
THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

M. A. No.500 of 2020
(Ramesh Bagri vs. Smt. Bhanwarbai Bagri)

Indore, dated : 18.03.2020

Shri A. K. Jain, learned counsel for the appellant.
Heard.
The present appeal is arising out of order dated 07.11.2019
passed by the Additional District Judge, Khachrod, District Ujjain in
MJC-GW No.02/2019.
The facts of the case reveal that the appellant/husband before
this Court is a vegetable vendor and is earning his livelihood by
working throughout the day as a vegetable vendor. The facts also
reveal that on account of dispute between husband and wife, the
minor son who is aged about 7 years is residing with the
appellant/husband and the minor daughter, who is aged about 5 years
is residing with the respondent/wife.

An application was also preferred by the respondent/wife
claiming maintenance under Section 125 of Cr.P.C. and the Chief
Judicial Magistrate has awarded Rs.1,500/- to the wife and Rs.1,000/-
in respect of minor daughter. The appellant/husband has later on
preferred an application under Section 7 to 10 read with Section 25 of
the Guardian and Wards Act, 1980 claiming custody of the minor
daughter on the ground that the mother is not able to look after the
daughter properly. However, learned Trial Court has dismissed the
application by order dated 07.11.2019.

The respondent/wife is served and inspite of service of notice,
there is no appearance on behalf of the respondent/wife.

The order passed by the learned Trial Court reveals that except
for making a bald statement that the wife is not looking after the
2
THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

M. A. No.500 of 2020
(Ramesh Bagri vs. Smt. Bhanwarbai Bagri)

daughter properly, no evidence was brought on record to establish
that wife is not looking after the daughter properly. Not only this,
learned Trial Court has observed that the husband, who is appellant
before this Court is a vegetable vendor, right from morning till
evening, he is selling vegetables and therefore, he will not be able to
look after his daughter because he is involved in his business
throughout the day. Otherwise also, as there was no evidence on
record to establish that wife is not looking after the daughter properly,
learned Trial Court has dismissed the application.

The statutory provisions governing the field is Section 6 of the
Hindu Minority and Guardianship Act, 1956, which reads as under :-

6. Natural guardians of a Hindu minor.–The natural
guardian of a Hindu minor, in respect of the minor’s person
as well as in respect of the minor’s property (excluding his
or her undivided interest in joint family property), are–

(a) in the case of a boy or an unmarried girl–the father, and
after him, the mother: provided that the custody of a minor
who has not completed the age of five years shall ordinarily
be with the mother;

(b) in case of an illegitimate boy or an illegitimate
unmarried girl–the mother, and after her, the father;

(c) in the case of a married girl–the husband: Provided that
no person shall be entitled to act as the natural guardian of
a minor under the provisions of this section–

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by
becoming a hermit (vanaprastha) or an ascetic (yati or
sanyasi). Explanation.–In this section, the expression
“father” and “mother” do not include a step-father and a
step-mother.

The aforesaid statutory provision of law makes it very clear that
in case of unmarried girl, who has not completed the age of 5 years
3
THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

M. A. No.500 of 2020
(Ramesh Bagri vs. Smt. Bhanwarbai Bagri)

shall ordinarily be in the custody of her mother. The girl is aged
about 5 years and therefore, keeping in view the statutory provision
governing the field as well as the fact that no evidence was brought
on record by the husband in respect of the averment that the wife was
not looking after the daughter properly, this Court does not find any
reason to interfere with the order passed by the Court below.

Resultantly, the admission is declined.

(S. C. Sharma) (Shailendra Shukla)
Judge Judge
gp

Digitally signed by Geeta
Pramod
Date: 2020.03.19 10:42:09
+05’30’

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