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Ramkumar Swami vs Aditya Trivedi on 27 January, 2020

-( 1 )- MA No. 4269/2019

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
BEFORE: SHEEL NAGU
AND
RAJEEV KUMAR SHRIVASTAVA, JJ.
Misc. Appeal No. 4269/2019

Ramkumar Swami and Another
Versus
Aditya Trivedi

——————————————————————————–
Shri Anuraj Saxena, learned counsel for the Appellants.
Smt. Uma Kushwaha, learned counsel for the Respondent.
——————————————————————————–

JUDGMENT

(27.01.2020)

Per Rajeev Kumar Shrivastava,J.:

Appellants has preferred this Misc. Appeal under
Section 47(a) of the Guardians and Wards Act, 1890 (for brevity,
the ‘Act’) assailing the order dated 22.7.2019 passed by First
Additional District Judge, Dabra, District Gwalior in MJC No.
07/2017 (Aditya Trivedi vs. Ramkumar Swami and another),
whereby the application preferred by the respondent under Section
7 of the Act for custody of his daughter has been allowed.

2. Brief facts of the case are that on 30.4.2012 marriage
was solemnized between respondent and daughter of
appellants, namely, Smt. Bharti and out of their wedlock
girl Divya was born. It is pertinent to mention that at the
time of filing of application under Section 7 of the Act,
Divya was aged about four years. It is further alleged
that soon after the marriage of the respondent, Smt.

-( 2 )- MA No. 4269/2019

Bharti committed suicide on 2.10.2013. A false case was
registered against the respondent for the offences under
Sections 498-A and 304-B of IPC and under the garb of
the false FIR the appellants took daughter Divya into
their custody. Thereafter the respondent has been
acquitted by the trial Court in connection with the
aforesaid offences and appeal against the judgment of
acquittal has also been dismissed. Thus, the respondent
being natural guardian of daughter Divya moved an
application under Section 7 of the Act for custody of his
daughter. Reply of the application has been filed by the
appellants denying the averments pleaded in the
application. The First Additional District Judge, Dabra
framed issues and after recording evidence of the parties
directed vide impugned order to the appellants to hand
over forthwith the custody of daughter Divya to the
respondent. Feeling aggrieved by the said order, the
appellants have preferred the instant appeal.

3. Learned counsel for the appellants attacks the
impugned order on the ground that the order is illegal,
without jurisdiction, arbitrary and contrary to the settled
principles of law. The Court below has ignored the fact
that daughter Divya was under her grandparent’s
upbringing since when she was 6 months old. The Court
below has failed to consider that paramount
consideration is welfare of child and the respondent is
not able to provide good education, atmosphere and
other facilities to the daughter and he has not made any
attempt during the last five years to seek custody of his
daughter. Hence, prayed for setting aside the impugned

-( 3 )- MA No. 4269/2019

order.

4. Per Contra, learned counsel for the respondent
opposed the submissions put forth by learned counsel for
the appellants and supported the impugned order.

5. Heard learned counsel for the rival parties and
perused the record.

6. Sections 7 of the Act reads as under :-

“7. Power of the Court to make order as to
guardianship.–(1) where the Court is satisfied that it
is for the welfare of a minor that an order should be
made–

(a) appointing a guardian of his person or
property, or both, or

(b) declaring a person to be such a guardian,
the Court may make an order accordingly.

(2) An order under this section shall imply the
removal of any guardian who has not been appointed by
will or other instrument or appointed or declared by the
Court.

(3) Where a guardian has been appointed by will or
other instrument or appointed or declared by the Court, an
order under this section appointing or declaring another
person to be guardian in his stead shall not be made until
the powers of the guardian appointed or declared as
aforesaid have ceased under the provisions of this Act.”

7. The following matters are required to be considered
by the Court in appointing guardian :-

(i) In appointing or declaring 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.

(ii) In considering what will be the welfare of the

-( 4 )- MA No. 4269/2019

minor, the Court shall have regard to the age, sex and
religion of the minor, character and capacity of the
proposed guardian and his nearness of kin to the minor,
the wishes, if any, of the deceased parent, and any
existing or previous relations of the proposed guardian
with the minor or his property.

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

8. On perusal of the relevant provisions of the Act of 1890
what clearly emerges is that the matter relating to the custody of a
minor child is not only an overwhelming but the paramount
consideration that must weigh with the court when examining the
“welfare of the minor” and the said term must be given effect to in
its broadest sense. At the time of appointing or declaring any
person as the guardian of a minor, it is not the rights of the parents
or relatives that should concern the court. The paramount
consideration is the welfare of the minor child. The aforesaid
aspect has been consistently highlighted over the years in several
judicial pronouncements of the Supreme Court and the High
Courts including in the cases of Rosy Jacob v. Jacob A.
Chakramakkal [(1973) 1 SCC 840]; L.Chandran vs. Mrs.
Venkatalakshmi and Anr. [AIR 1981 AP 1]; Smt. Surindar Kaur
Sandhu vs. Harbax Singh Sandhu and Anr. [(1984) 3 SCR 422,];
Kamla Devi vs. State of Himachal Pradesh and Ors. [AIR 1987 HP
34]; Mrs. Elizabeth Dinshaw vs. Arvand M. Dinshaw and Anr.
[(1987) 1 SCR 175]; Smt. Elokeshi Chakraborty vs. Sri Sunil
Kumar Chakraborty [AIR 1991 Calcutta 176]; Kirtikumar
Maheshankar Joshi vs. Pradipkumar Karunashanker Joshi [AIR
1992 SC 1447]; Bimla Devi vs. Subhas Chandra Yadav “Nirala‟
[AIR 1992 Patna 76]; Sumedha Nagpal vs. State of Delhi Ors.

-( 5 )- MA No. 4269/2019

[(2000) 9 SCC 745]; Mausami Moitra Ganguli vs. Jayanti Ganguli
[AIR 2008 SC 2262]; Gaurav Nagpal vs. Slumedha Nagpal
[(2009) 1 SCC 42]; Shyamrao Maroti Korwate vs. Deepak
Kisanrao Tekam reported as [(2010) 10 SCC 314]; and, Smt.
Vibha vs. Sh. Rama Nand [2013 X AD (DELHI) 399].

9. In Halsbury’s Laws of England, Fourth Edition, Vol. 24, para
511 at page 217 it has been stated;

“Where in any proceedings before any court the
custody or upbringing of a minor is in question,
then, in deciding that question, the court must
regard the minor’s welfare as the first and
paramount consideration, and may not take into
consideration whether from any other point of
view the father’s claim in respect of that custody
or upbringing is superior to that of the mother, or
the mother’s claim is superior to that of the father.”

10. Sometimes, a writ of habeas corpus is sought for custody of
a minor child. In such cases also, the paramount consideration
which is required to be kept in view by a writ-Court is `welfare of
the child’.

11. In Mc Grath, Re, (1893) 1 Ch 143 : 62 LJ Ch 208, Lindley,
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
merely physical comfort. The word `welfare’ must
be taken in its widest sense. The moral or religious
welfare of the child must be considered as well as
its physical well-being. Nor can the tie of affection
be disregarded.”

12. Law in the United States is also not different. In American
Jurisprudence, Second Edition, Vol. 39; para 31; page 34, it is
stated;

“As a rule, in the selection of a guardian of a
minor, the best interest of the child is the
paramount consideration, to which even the rights
of parents must sometimes yield”.

-( 6 )- MA No. 4269/2019

13. In Saraswathibai Shripad v. Shripad Vasanji [AIR 1941 Bom 103],
the High Court of Bombay stated;

“It is not the welfare of the father, nor the welfare
of the mother that is the paramount consideration
for the Court. It is the welfare of the minor and the
minor alone which is the paramount
consideration.”

14. In Rosy Jacob’s case (supra), the Hon’ble Supreme Court
held that object and purpose of 1890 Act is not merely physical
custody of the minor but due protection of the rights of ward’s
health, maintenance and education. The power and duty of the
Court under the Act is the welfare of minor. In considering the
question of welfare of minor, due regard has of course to be given
to the right of the father as natural guardian but if the custody of
the father cannot promote the welfare of the children, he may be
refused such guardianship.

15. In Surinder Kaur Sandhu (Smt.) v. Harbax Singh Sandhu,
[(1984) 3 SCC 698], the Hon’ble Supreme Court held that Section
6 of the Hindu Minority and Guardianship Act, 1956 constitutes
father as a natural guardian of a minor son. But that provision
cannot supersede the paramount consideration as to what is
conducive to the welfare of the minor. [See also Elizabeth
Dinshaw (Mrs.) v. Arvand M. Dinshaw, [(1987) 1 SCC 42] and,
Chandrakala Menon (Mrs.) v. Vipin Menon (Capt), [(1993) 2 SCC
6].

16. In Kirtikumar Maheshanker Joshi v. Pradip Kumar
Karunashanker Joshi [(1992) 3 SCC 573] custody of two minor
children was sought by father as also by maternal uncle. Mother
died unnatural death and the father was facing charge under
Section 498-A of IPC. Children were staying with maternal uncle.
Before this Court, both the children expressed their desire to stay

-( 7 )- MA No. 4269/2019

with maternal uncle and not with the father. Considering the
facts and circumstances and bearing in mind the case pending
against the father and rejecting his prayer for custody and granting
custody to the maternal uncle, the Hon’ble Supreme Court stated;

“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”

Construing the expression `welfare’ in Section 13 of Hindu
Minority and Guardianship Act, 1956, liberally, the Hon’ble
Supreme Court observed;

“It is well settled that the word `welfare’
used in this section must be taken in its
widest sense. The moral and ethical welfare
of the child must also weigh with the Court
as well as its physical well being”.

17. The Hon’ble Supreme Court in recent judgment in
the case of Yashita Sahu vs. State of Rajasthan and
others (Criminal Appeal No. 127 of 2020, decided on
20 t h January, 2020) has held as under :-

“14. Reference in this regard may be made to the
judgment in Elizabeth Dinshaw (supra) wherein
this Court was dealing with a case where the wife
was an American citizen whereas the husband was a
citizen of India. They got married in America and a
child was born to them in the year 1978. In 1980,
differences arose between the couple and the wife
filed a petition for divorce. The jurisdictional court
in America had dissolved the marriage by a decree
of divorce on 23.04.1982 and by the same decree it

-( 8 )- MA No. 4269/2019

was directed that the wife would have the care,
custody and control of the child till he reaches the
age of 18 years. The husband was given visitation
rights. Taking advantage of the weekend visitation
rights, the husband picked up the child from school
on 11.01.1986 and brought him to India. The wife
filed a petition under Article 32 of the Constitution
of India before this Court. Not only was the petition
entertained, but the same was allowed and we would
like to refer to certain important observations of this
Court in Para 8:

“8. Whenever a question arises before a
court pertaining to the custody of a minor
child, the matter is to be decided not on
considerations of the legal rights of parties
but on the sole and predominant criterion of
what would best serve the interest and
welfare of the minor. We have twice
interviewed Dustan in our chambers and
talked with him. We found him to be too
tender in age and totally immature to be able
to form any independent opinion of his own
as to which parent he should stay with. The
child is an American citizen. Excepting for
the last few months that have elapsed since
his being brought to India by the process of
illegal abduction by the father, he has spent
the rest of his life in the United States of
America and he was doing well in school
there. In our considered opinion it will be in
the best interests and welfare of Dustan that
he should go back to the United States of
America and continue his education there
under the custody and guardianship of the
mother to whom such custody and
guardianship have been entrusted by a
competent court in that country. We are also
satisfied that the petitioner who is the
mother, is full of genuine love and affection
for the child and she can be safely trusted to
look after him, educate him and attend in
every possible way to his proper upbringing.
The child has not taken root in this country
and he is still accustomed and acclimatized
to the conditions and environments obtaining
in the place of his origin in the United States

-( 9 )- MA No. 4269/2019

of America. The child’s presence in India is
the result of an illegal act of abduction and
the father who is guilty of the said act cannot
claim any advantage by sme school in Pune.
The conduct of the father has not been such
as to inspire confidence in us that he is a fit
and suitable person to be entrusted with the
custody and guardianship of the child for the
present.”

In para 17 of the aforesaid judgment, it is also observed as under:-

“17. It is well settled law by a catena of judgments
that while deciding matters of custody of a child,
primary and paramount consideration is welfare of
the child. If welfare of the child so demands then
technical objections cannot come in the way.
However, while deciding the welfare of the child it
is not the view of one spouse alone which has to be
taken into consideration. The courts should decide
the issue of custody only on the basis of what is in
the best interest of the child.”

18. In the light of above, this Court has to consider various
factors while deciding the issue in hand. No hard and fast rule can
be laid down and each case is to be decided on its own merits but
the foremost and paramount consideration would be the welfare of
the child. The Court has to decide what is in the best interest of the
child after weighing all the pros and cons of the respective
guardians who are claiming custody of the child. It is true that
such order passed cannot provide a perfect environment to the
child. However, under Section 7 of the Act the Court is
empowered to make an order of guardianship keeping in view the
welfare of child, which is paramount consideration.

19. In the present case, father of the minor female child had
faced trial for the offence under Section 304-B, alternatively,
under Sections 306, 498-A of IPC in relation to the death of his
wife, deceased Bharti. It is admitted position that now the
respondent has remarried and out of the wedlock one child is born.

20. The minor child Divya has shown her affinity towards her

-( 10 )- MA No. 4269/2019

maternal grandparents (the appellants herein) rather than her father
and has expressed that her father killed her mother, hence she
would not like to live with her father. More so, we interacted with
the child in camera and found that she is happy and contended
under the guardianship of her maternal grandparents.
Compatibility of the child appears to be more with the appellants
rather than her father, who in the changed circumstance of re-
marriage and having a son out of the second marriage, cannot be
expected to give undivided attention, affection and care to the
child (Divya).

21. On analyzing all the aforesaid facts and circumstances of the
case, we are of the opinion that the paramount consideration of the
child in question would be to direct custody of the child to her
maternal grandmother, i.e., appellant No.2.

22. In view of the aforesaid, the impugned order dated
22.7.2019 passed by First Additional District Judge, Dabra District
Gwalior in MJC (GW) No. 07/2017 is hereby set aside. As child
Divya is still in custody of her maternal grandmother, her custody
shall be continued till the child attains age of majority.

23. The appeal stands allowed accordingly. No costs.

(Sheel Nagu) (Rajeev Kumar Shrivastava)
(yog) Judge Judge

YOGESH VERMA
2020.01.28
VALSALA
VASUDEVAN
2018.10.26
15:14:29 -07’00’
12:31:24 +05’30’

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