M.A. No.1380/2017 1

THE HIGH COURT OF MADHYA PRADESH

M.A. No.1380/2017
(Smt. Savitri vs. Munnalal)

Indore, Dated: 01/05/2018

Ms. Vinita Phaye, learned counsel for the appellant.
Shri Ajay Jain, learned counsel for the respondent.

Heard on the question of admission.

Appeal is admitted for final hearing.

Also heard on I.A. No.5280/2017, an application under
Order 41 rule 5 of C.P.C., for staying the execution of order dated
27/07/2017, passed by the II Additional Principal Judge, Family Court,
Indore in Guardian Case No.27/2013.

Learned counsel for the applicant has submitted that the
respondent has filed an application under Section 7 of the Guardian and
Wards Act, 1890 for taking custody of his minor son before the II
Additional Principal Judge, Family Court, Indore. The said application
is allowed by impugned order and it is directed that the appellants shall
hand over the custody of the child to the respondent.

Being aggrieved by the aforesaid order, appellants have
filed the present appeal before this Court under Section 47 of Guardian
and Wards Act, 1890 and moved this interlocutory application under
Order 41 rule 5 of C.P.C., for staying the execution of impugned order.

After hearing learned counsel for the parties, and on perusal
of record, this Court is of the opinion that it is well settled preposition
of law that interest and welfare of the minor becomes a paramount
consideration, while deciding the custody of a minor. Minor son was
present before this Court and we interacted with him in our Chamber.
On interaction with the child, we found that the child is studying in 3 rd
Class in Gujarati school at Indore. The son is living with his grand
mother (Nani) from since year 2012 and he did not recognize his father,
M.A. No.1380/2017 2

therefore, he is not willing to live with his father.

Learned counsel for the appellants has submitted that
although the respondent is natural guardian of the minor son, however,
he was charged for murdering his wife and tried for offence under
Section 302 of IPC, therefore, the minor son is living with his grand
mother (Nani) and maternal uncles. Under these circumstances, it
would be appropriate that the minor son shall continue to remain under
the guardianship of the appellants.

Looking to fact that the impugned order for handing over
the custody of the child to the father, is the subject matter of challenge
before this Court in the present appeal, which is pending decision,
therefore, it would be appropriate to stay the execution of impugned
order dated 22/07/2017, passed by the II Additional Principal Judge,
Family Court, Indore.

Accordingly, IA. No.5280/2017 is allowed and the
execution of impugned order shall remain stayed till the decision of
this appeal.

So far as the visitation right of respondent is concerned it is
directed that the respondent shall be free to meet his minor son for 2
hours on first and fourth Sunday of every month from 5.00 pm to 7.00
pm in the place where the meeting can take place at the convenience of
both the parties.

List for final hearing in due course.

(P.K. Jaiswal) (S. K. Awasthi)
Judge Judge
sumathi

Digitally signed by Sumati Jagadeesan
Date: 2018.05.03 10:38:14 +05’30’