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Smt. Asha Devi vs Gulab Chandra Seth on 25 July, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 40

Case :- MATTERS UNDER ARTICLE 227 No. – 5244 of 2019

Petitioner :- Smt. Asha Devi

Respondent :- Gulab Chandra Seth

Counsel for Petitioner :- Vinod Shankar Tripathi,Suraj Kumar Singh

Counsel for Respondent :- Dharmendra Kumar Pandey

Hon’ble Manoj Kumar Gupta,J.

The instant petition is directed against the order dated 30.5.2019, whereby the application filed by the petitioner seeking impleadment in proceedings under Section 8 of the Guardians and SectionWards Act, 1890, has been rejected solely on the ground that she is accused in a dowry death case.

The dispute relates to custody of Shaurya Seth aged about 4 years. She is daughter of the son of Gulab Chandra Seth, who filed application under Section 8 of the Act. The mother of the minor is no more alive. The father is in jail being an accused in dowry case.

The petitioner Smt. Asha Devi is grand mother of the minor child. Indisputably, she is also a co-accused in the criminal case, but she is on bail.

Learned counsel for the petitioner submitted that since the instant petition is not by natural guardian but by the maternal grand father (nana), therefore, the petitioner, who is paternal grand mother (dadi), is entitled to be impleaded in the proceedings being also closely related to the minor. In support of his submission, he has placed reliance on Section 10 of the Act which requires the petitioner to disclose in his petition, the name and address of near relatives of the minor. According to him, the issue as to whether custody should be given to the petitioner or not, could only be decided after impleadment of the petitioner. The impleadment cannot be rejected on the sole ground that the petitioner is an accused in a murder case. According to him, the petitioner has been wrongly implicated and there is every likelihood of the petitioner getting acquitted.

Counsel for the respondents submitted that the petitioner is not entitled to impleadment, being an accused in murder case. She could not be given custody of the minor child. In support of his submission, he has placed reliance on a judgement of Punjab Haryana High Court in SectionRanjit Singh vs. Madan Gopal Singh and another, 2014 LawSuit (PH) 5273.

In the said case, the High Court was deciding an appeal against the order of the court below appointing maternal grand parents as guardian of a minor child. The trial court after considering evidence on record and having regard to welfare of the minor declined to appoint Ranjit Singh, father as guardian. One of the factors which weighed with the court was that he was accused in criminal case. The High Court concurred with the view taken by the trial court.

The judgement cited by learned counsel for the respondent, would not be of any help at this stage as it is yet to be decided on basis of evidence to be led by the parties as to which person is best suited to safeguard the interest of the minor child. Such stage has yet not arisen.

Section 10 of the Act requires the person applying for guardianship to disclose the name of near relations of the minor and where they reside. Section 11 stipulates that the court hearing the application filed for appointment of guardian, shall cause notice of the application to be served on (i) the parents of the minor if they are residing in any State to which this Act extends (ii) the person, if any, named in the petition or letter as having the custody or possession of the person or property of the minor (iii) the person proposed in the application or letter to be appointed or declared guardian, unless that person is himself the applicant, and (iv) any other person to whom, in the opinion of the Court, special notice of the application should be given.

The object of the said provision is to ensure that the parents as well as the person in custody or possession of the person or property of the minor may have notice of the application. This serves dual purpose; it enables them to oppose the application and apprise the court of any adverse fact which disentitles the applicant to be appointed as guardian and also facilitates them to put forth their claim for guardianship, if they so wish. The provision confers very wide power upon the court and empowers it to issue notice to any other person, who in its opinion deserves to be heard.

In the instant case, one of the opposite parties to the proceedings namely Roli Seth alias Jyoti had filed her objections stating that at present the minor is living with the petitioner.

Once this fact has come on record, it was the duty of the court to have issued notice to the petitioner, apart from the fact that she is grand mother of the minor child.

In the opinion of the Court, the issue as to whether the custody of the minor should at all be given to the petitioner or not, could only be decided at the final stage of the proceedings. It goes without saying that while taking such decision, welfare of the minor will be of paramount importance. It also cannot be disputed that the fact that petitioner is an accused in criminal case would be very relevant while deciding the issue. However, at this stage, the impleadment application could not be rejected solely on the ground that the petitioner is an accused in a dowry case, regard being had to the fact that she is grand mother of the minor and is stated to be having custody of the minor.

Accordingly, the impugned order is set aside. The court below is directed to permit impleadment of the petitioner as a party-respondent.

It is again clarified that the mere fact that the petitioner has been permitted to be impleaded in the proceedings, would not be construed as expression of any opinion in her favour and the issue as to who is entitled to custody of the minor, shall be decided keeping in mind the welfare of the minor.

The petition stands disposed of accordingly.

Order Date :- 25.7.2019

skv

(Manoj Kumar Gupta, J.)

 

 

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