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Smt. Komal vs Arvind Kumar on 23 October, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R

Reserved on: 30.9.2019

Delivered on: 23.10.2019

Court No. – 34

Case :- FIRST APPEAL No. – 739 of 2017

Appellant :- Smt. Komal

Respondent :- Arvind Kumar

Counsel for Appellant :- Sudhir Kumar Chandraul,Krishna Manohar Tiwari

Counsel for Respondent :- Mahesh Sharma

Hon’ble Sudhir Agarwal,J.

Hon’ble Rajeev Misra,J.

(Delivered by Hon’ble Rajeev Misra,j)

1. Challenge in this appeal under section 47 of Guardian and SectionWards Act, 1890 (hereinafter referred to as ‘Act, 1890’), wrongly mentioned as Section 19 Family Court Act, 1984 is to judgement dated 1.5.2017, passed by Principal Judge, Family Court, Baghpat, in Misc. Case No. 01 of 2013 (Smt. Komal Vs. Arvind Kumar), under Sectionsection 25 of Act 1890 whereby claim of plaintiff mother for custody of her minor children has been rejected.

2. We have heard Mr. Krishna Mohan Tiwari, learned counsel for appellant and Mr. Mahesh Sharma, learned counsel for respondent.

3. It transpires from record that marriage of appellant was solemnized with respondent Arvind Kumar on 22.2.1999 in accordance with Hindu Rites and Customs. After marriage, appellant came to her matrimonial home and discharged her espousal obligations. Inspite of aforesaid, respondent and his family members did not extend love and affection to appellant. Their conduct towards appellant was vindictive and aspersions were cast upon her for not bringing sufficient dowry. The matrimonial bond however continued and from wedlock of appellant and respondent, a daughter namely, Chavi and a son namely, Nakul were born. It is alleged by appellant that respondent was a drunkard and under spell of intoxication, used to assault and abuse appellant. Ultimately, appellant alleges to have been ousted from her matrimonial home on 16.2.2010 but custody of minor children was retained by respondent. Apprehending damage to the personality of her minor children on account of bad habits of respondents and further that they may not come up with strong moral character, coupled with refusal on part of respondent to hand over custody of minor children, appellant filed Suit No. 01 of 2013 (Smt. Komal Vs. Arvind Kumar) under Sectionsection 25 of Act, 1890, claiming custody of her minor children. It was also pleaded by appellant that respondent is not paying required interest for welfare of minor children. They are unable to study properly. The minor daughter of appellant is being looked after by her grand mother. As appellant is capable of looking after her minor children and also a natural guardian of minor children, therefore, their custody be given to appellant.

4. Suit filed by appellant was contested by defendant respondent by filing a written statement whereby not only plaint allegations were denied but also additional pleas were raised. It was pleaded by respondent that appellant is incapable of meeting educational expenses of minor children as she herself has filed case No. 69 of 2011 under Protection of Women from SectionDomestic Violence Act, 2005 (hereinafter referred to as ‘Act, 2005’) wherein she has claimed interim maintenance on account of financial constraints Appellant has also filed a case under Sectionsection 125 Cr.P.C. in the competent Court at Muzaffarnagar for payment of maintenance. Minor son Nakul is studying in Class-XI at, Diwan Public School, which is one of the best public schools in Meerut. The respondent is himself bearing expenses of his son. The Phupha and Buwa of minor have been appointed as guardian, as they are working in Meerut. Photocopy of certificate showing payment of fees was filed in evidence to support the same. In respect of minor daughter Chavi, it was pleaded that she is studying in Class-V at C.B.S.M Public School. The respondent is bearing her educational expenses. The minor daughter is being looked after by respondent along with his parents. Photocopy of fees card pertaining daughter, Chavi, was also filed in evidence. It was then urged that respondents is looking after his minor children to the best of his ability and means, they are receiving good education. Appellant is living separately, since 16.2.2010, without any reason. Appellant is unable to sustain herself and to get the amount of maintenance enhanced, she has filed application for custody of minor children to exert pressure upon respondent. On the aforesaid pleas, it was submitted that application filed by appellant for custody of minor children is liable to be rejected.

5. After the pleadings were exchanged, parties went to trial. Appellant in support of her claim, filed her own affidavit, whereas respondents in support of his defence, filed his affidavit. Upon consideration of pleadings adduced by parties and material filed by them in support of their respective case, Court below opined that only single point of determination is involved i.e. “in whose custody, the interest of minor children would be best protected”.

6. Court below, upon evaluation of material on record and also in view of the dialogue with minor children as they were of tender age, arrived at the conclusion that interest of minors is best protected in the custody of their father i.e. respondent. Accordingly, Court below vide order dated 1.5.2017 rejected application filed by appellant under Sectionsection 25 of Act 1890, claiming custody of her minor children. Feeling aggrieved by aforesaid judgement, appellant has now come to this Court, by means of present first appeal.

7. Mr. Krishna Manohar Tiwari, learned counsel for appellant, in challenge to impugned judgement, submitted that impugned judgement passed by Court below, is unsustainable in law and fact. Consequently, the same is liable to be set aside by this Court. Elaborating his submission, he submits that from the wedlock of appellant and respondent, two children were born, namely, a son and daughter. At the time of presentation of petition, under Sectionsection 25 of Act, 1890, both the children were of tender age i.e. 8 and 6 years respectively. It is well settled that when children are of tender age, they should be in custody of their mother. It was then submitted that in respect of minor daughter, mother is the best guardian and her custody should remain with mother till she reaches the age of pubetry. Court below, while passing impugned judgement and order has failed to consider aforesaid aspects of the matter which has vitiated the impugned judgement. It is thus urged that impugned judgement passed by Court below, is liable to be set aside.

8. Mr. Mahesh Sharma, learned counsel for respondent, on the other hand has supported impugned judgement. According to learned counsel for respondent, Court below has passed a just and reasonable order which is not liable to be interfered with. Court below has taken into consideration the paramount interest of minor children and in line with aforesaid principle, held that interest of minor children is best protected in custody of their father. Court below was aware of the fact that minor children are of tender age, therefore, Court itself held conversation with minor children to ascertain their willingness regarding their stay with either of the parents. As such, both on facts and law, no fault can be attributed to the order passed by Court below.

9. Before proceeding to evaluate the rival submissions made by learned counsel for parties, it would be appropriate to reproduce Sectionsection 25 of Act, 1890:

“”25. Title of guardian to custody of ward.–(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.

(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by Sectionsection 100 of the Code of Criminal Procedure, 1882 (10 of 1882).

(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.

10. From the perusal of Section 25 of Act 1890 it is apparent that there are no directions contained in the section itself in accordance with which application for guardianship and custody shall be decided. However, as law has developed on the subject concerned, it is well crystallized that paramount interest of minor is the primary criteria for deciding custody and guardianship of a minor. Apart from above, it is now further established that a minor who is below five years of age, shall ordinarily be allowed to stay with mother. Similarly in case of minor girls, it has been the consistent view that their custody should remain with mother till they attain age of majority. It shall be useful to refer to a Division Bench judgement of this Court in First Appeal Defective No. 138 of 2019 (Mritunjay Vs. Hari Shankar Dixit) decided on 8.7.2019. In paragraphs 7, 8, 9, 10 and 11 Court has said as under:

“7. While determining the question of custody of a minor child, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute.

8. SectionIn Mausami Moitra Ganguli v. Jayant Ganguli (2008) 7 SCC 673, it has been held that the principles of law in relation to the custody of a minor child are well settled. While determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute.

9. In the above case, a passage from Halsbury’s Laws of England (4th Edn., Vol. 13) was reproduced which reads as under:

“809. Principles as to custody and upbringing of minors.- Where in any proceedings before any court, the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other.”

10. Earlier, Apex Court in SectionRosy Jacob v. Jacob A. Chakramakkal (1973) 1 SCC 840, ruled that the children are not mere chattels, nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian.

11. Following the above authorities, in Santhini Vs. Vijaya Venketesh (2018) 1 SCC 1 Court expressed the same view holding as under:

“It is to be borne in mind that in a matter relating to the custody of the child, the welfare of the child is paramount and seminal. It is inconceivable to ignore its importance and treat it as secondary. The interest of the child in all circumstances remains vital and the Court has a very affirmative role in that regard. Having regard to the nature of the interest of the child, the role of the Court is extremely sensitive and it is expected of the Court to be pro-active and sensibly objective.”

(emphasis added) ”

11. Supreme Court in Lekha Vs. P. Anil Kumar 2006 (13) SCC 555, had dealt with the issue regarding guardianship and custody of minor under Sectionsection 25 of Act 1890 and observed as follows in paragraphs 15, 16, 17 and 19:

“15. SectionSk. Moidin v. Kunhadevi [AIR 1929 Mad 33 (FB)] was a case of a father, a motor driver, applying for writ of habeas corpus to get custody of his 7-year-aged child. Nobody was available in his house to look after such child. The Full Bench held that the Court has to look to an application under habeas corpus in the interest of the child as being paramount. The Court held that prima facie in the eye of the law, the father is the natural guardian and custodian of the person of his child. But it has been the law for a very long time both in England and in this country that what a court has to look to on applications under habeas corpus is the interest of the child as being paramount.

16. SectionIn Samuel Stephen Richard v. Stella Richard [AIR 1955 Mad 451 : 56 Cri LJ 1192] the High Court in deciding the question of custody held as follows: (AIR p. 452)

“In deciding the question of custody, the welfare of the minor is the paramount consideration and the fact that the father is the natural guardian would not ”ipso facto’ entitle him to custody. The principal considerations or tests which have been laid down under Section 17, in order to secure this welfare, are equally applicable in considering the welfare of the minor under Section 25.

The application of these tests casts an ”arduous’ duty on the court. Amongst the many and multifarious duties that a Judge in Chambers performs by far the most onerous duties are those cast upon him by the Guardians and SectionWards Act. He should place himself in the position of a wise father and be not tired of the worries which may be occasioned to him in selecting a guardian best fitted to assure the welfare of a minor and thereafter guide and control the guardian to ensure the welfare of the ward–a no mean task but the highest fulfilment of the dharmasastra of his own country.

It is only an extreme case where a mother may not have the interest of her child most dear to her. Since it is the mother who would have the interest of the minor most at heart, the tender years of a child needing the care, protection and guidance of the most interested person, the mother has come to be preferred to others.”

17. SectionIn Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka [(1982) 2 SCC 544 : AIR 1982 SC 1276] this Court held as under: (SCC p. 565, para 17)

“17. The principles of law in relation to the custody of a minor appear to be well established. It is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor’s interest. In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor.”

19. The law permits a person to have the custody of his minor child. The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that the mother has married again after the divorce of her first husband is no ground for depriving the mother of her parental right of custody. In cases like the present one, the mother may have shortcomings but that does not imply that she is not deserving of the solace and custody of her child. If the court forms the impression that the mother is a normal and independent young woman and shows no indication of imbalance of mind in her, then in the end the custody of the minor child should not be refused to her or else we would be really assenting to the proposition that a second marriage involving a mother per se will operate adversely to a claim of a mother for the custody of her minor child. We are fortified in this view by the authority of the Madras High Court in SectionS. Soora Reddi v. S. Chenna Reddi[AIR 1950 Mad 306 : (1950) 1 MLJ 33] where Govinda Menon and Basheer Ahmed Syed, JJ. have clearly laid down that the father ought to be a guardian of the person and property of the minor under ordinary circumstances and the fact that a Hindu father has married a second wife is no ground whatever for depriving him of his parental right of custody.”

(Emphasis added)

12. Thus from above quoted observations, it is explicitly clear that even though father is natural guardian but simply on that ground he is not entitled to the custody and guardianship of minor children. Courts while deciding guardianship and custody of a minor have to be guided by observations made by Court as referred to above. When case in hand is examined in light of above quoted observations made by Court, balance tilts in favour of father i.e. defendant-respondent.

13. From perusal of record, it is apparent that appellant in her affidavit clearly admitted that she is not having any independent source of income hence unable to sustain herself. As such, she is dependent upon her father. She further admitted that she cannot bear expenses of schools in which minor children are studying. If custody is granted to her, she will claim their expenses from respondent. Apart from above, there was no denial of fact that minor children are studying in good schools at Meerut. Furthermore, it could not be disputed by appellant that respondent is having sufficient income to meet his personal expenses as well as the expenses of minor children. It is further evident that since children were of tender age, court below before proceeding to decide their custody held conversation with them and obtained their desire of stay with father or mother. Both children categorically stated that they wish to stay with their father. Having ascertained the status of parties and willingness of minor children, Court below proceeded to decide the question of custody of minor children as per the principle “paramount interest of minor”.

14. Learned counsel for appellant could not dispute before us that conclusion drawn by Court below regarding financial status of parties, willingness of children to stay with their father and paramount interest of children in facts and circumstances of case are neither perverse nor erroneous.

15. In view of above, argument raised by learned counsel for appellant that since both children were minor and particularly since daughter had not even attained the age of puberty, were liable to be given in custody of their mother, is wholly misconceived. Law on the subject now stands crystallized and it has been held that even a natural guardian can be denied custody of minor children for good and compelling reasons. It is established from record that sufficient and compelling circumstances exist on record, which permit continuance of custody of minor children with their father as their interest is best protected in the company of their father.

16. For reasons, given herein above, we do not find any good ground to interfere in this appeal. Appeal being devoid of merits is liable to be dismissed. It is accordingly, dismissed. Cost made easy.

Order Date :- 23.10.2019

Arshad

 

 

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