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Smt Reeta Khare vs Manoj Khare on 24 July, 2019

HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR

Case No. Misc.Appeal No.2462/2019
Parties Name Smt.Reeta Khare
vs.
Manoj Khare
Date of Order 24/07/2019
Bench Constituted Justice Sujoy Paul
Justice B.K. Shrivastava
Order passed by Justice B.K.Shrivastava
Whether approved for reporting NO
Name of counsel for parties For Petitioner : Mukesh Agrawal, Adv.

For Respondent: Shri Siddharth
Shrivastava, Adv.
Law laid down –
Significant paragraph numbers –

(ORDER)
24.07.2019

As per: B.K.Shrivastava, J.

This misc.appeal has been filed on 22.4.2019 under section 47 of the
Guardians and Wards Act, 1890 against the order dated 8.4.2019 passed by the
Family Court, Damoh in MJC (GW) No.3/2016. By the order impugned, the
learned lower Court allowed the application filed by the respondent Manoj
Khare under section 7 read with section 12 of the Guardians and Wards Act,
1890 and appointed him the guardian of daughter Muskan, aged about 10 years
and son Mann, aged about 2 years.

2. It is an admitted position that appellant Reeta Khare married with
respondent Manoj Khare on 15.1.2005, and out of their wedlock one daughter
“Muskan” and one son named “Mann” were born. The appellant is working as
Teacher in Government School. The appellant lodged a report under section
498-A of IPC against the respondent and a case vide Criminal Case
No.242/2016 was registered against the respondent. In aforesaid case, the

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M.A. No.2462 of 2019

charges under section 498-A and section 324 of IPC were framed against the
respondent by the Court and thereafter, the Judicial Magistrate First Class,
Damoh acquitted the respondent by judgment dated 4.3.2017.

3. The respondent filed an application under section 7 read with section
12 of the Guardians and Wards Act, 1890 on 27.9.2016 for granting the
custody of daughter Muskan and son Mann. The appellant filed the reply of
aforesaid application on 6.2.2017. Thereafter the trial court framed the
issues on 6.4.2017 and recorded the evidence of both the parties. On
8.4.2019 the impugned order was passed by the trial court by allowing the
application filed by the respondent. The Court gave the custody of Muskan
and Mann to the respondent.

4. It is submitted by the counsel for appellant that the judgment and
decree dated 8.4.2019 passed by the Principal Judge, Family Court, Damoh
is perverse, contrary to the evidence available on record, illegal and not
sustainable under the law. It should have been held that in the facts and
circumstances of the case and in the light of the evidence available on
record, the respondent/husband is not entitled for custody of the children
because their custody is more safe in the hands of mother. Looking to the
financial position of the appellant, the custody should be given to the
appellant because the respondent is not having any sufficient source of
income. The Court also committed mistake by dismissing the application
for recording the evidence of Muskan. The application was filed by the
appellant for taking the evidence of Muskan to ascertain the welfare of child
but the trial court dismissed the aforesaid application without any ground.
Therefore, it is requested to set aside the impugned judgment dated
8.4.2019 passed by the Principal Judge, Family Court in MJC (GW)
No.3/2016.

5. The respondent strongly opposed the application and supported the
order passed by the Family Court, Damoh. It is submitted by the
respondent that he is competent to take the custody of children. The
respondent is a woman of loose character having illicit relation with another
person named Pramendra Khetan. She had also arrested by the police with
Pramendra Khetan from a hotel in a suspicious condition. Therefore, future

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M.A. No.2462 of 2019

of the children will not be safe in the hands of appellant. On the aforesaid
grounds, it is requested to dismiss the present appeal.

6. We have heard the learned counsel for parties and perused the record.

7. It appears from the order passed by the Family Court that the trial
court dismissed the application only upon the ground that the appellant is
having some illicit relationship with Pramendra Khetan. The Court
observed in Para 21 as under:-

^^ vfHkys[k ij vk;h lk{; ,oa nLrkost ls ;g Li”V gS
fd vukosfndk ds izesUnz [ksrku uked O;fDr ls ,sls
laca/k gS tks fdlh ifr ,oa cPpksa ds lgus ;ksX; ugha gSaA
;fn nksuksa vo;Ld cPps vukosfndk ds ikl jgsaxs rks
fuf’pr :i ls mUgsa Hkfo”; esa bl ckr dk HkyhHkkafr
Kku gks tk;sxk fd mudh eka ds laca/k fdlh vU;
O;fDr ¼izesUnz [ksrku½ ls gSa] bl dkj.k vo;Ldksa ds
Hkfo”; ,oa LokLF; ij cqjk vlj iM+ ldrk gS] ftl
dkj.k mUgsa ekufld v?kkr ,oa lekt esa mudh Nfo
/kwfey gks tk;sxhA Hkys gh vukosfndk dh vk; vkosnd
ls vf/kd gS] ijUrq vo;Ldksa dk dY;k.k loksZifj gS]
/ku bldk i;kZ; ugha gSa vFkkZr~ U;k;ky; ds fopkj.k
ds fy;s egRoiw.kZ fo”k; f’k’kq dk dY;k.k gksrk gS] ijUrq
f’k’kq dk dY;k.k dsoy /ku }kjk vkSj dsoy ‘kkjhfjd
lq[k }kjk ugha vkadk tkuk pkfg;sA**

8. The question for decision before this Court is whether the respondent
is entitled to get the custody of minor children?

9. Undisputedly, “father” is the natural guardian of the children as per
section 6 of the Hindu Minority and Guardianship Act, 1956, which is 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 the 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 :

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M.A. No.2462 of 2019

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.”

10. The Hindu Minority and Guardianship Act, 1956 was amended and
modified. It is supplemented to the Guardians and Wards Act, 1890. The
Court has taken preference of the minors under section 17 of the Guardians
and Wards Act, 1890. Section 17 of the aforesaid Act is quoted as under:-

“17. Matters to be considered by the Court in
appointing guardian. – (1) In appointing or
declaring the 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.

(2). In considering what will be for the
welfare of the minor, the Court shall have
regard to the age, sex and religion of the
minor, the character and capacity of the
proposed guardian and his nearness of kin to
the minor, the wishes, if any, of a deceased
parent, and any existing or previous relations
of the proposed guardian with the minor or his
property.

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

*****
(5) The Court shall not appoint or declare
any person to be a guardian against his will.”

11. In Athar Hussain Vs. Syed Siraj Ahmed, AIR 2010 SC
14172010 AIR SCW 597, the Supreme Court observed that :-

“In matters of custody, as well-settled by
judicial precedents, welfare of the children is
the sole and single yardstick by which the
Court shall assess the comparative merit of

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M.A. No.2462 of 2019

the parties contesting for custody. Therefore,
while deciding the question of interim
custody, court must be guided by the welfare
of the children since S. 12 empowers the
Court to make any order as it deems proper.”

12. In Gaurav Nagpal Vs. Sumedha Nagpal, AIR 2009 SC
557, the Supreme Court also observed that:-

“The principles in relation to the
custody of a minor child are well settled. In
determining the question as to who should be
given custody of a minor child, the paramount
consideration is the ‘welfare of the child’ and
not rights of the parents under a statute for the
time being in force. When the Court is
confronted with conflicting demands made by
the parents, each time it has to justify the
demands. The Court has not only to look at
the issue on legalistic basis, in such matters
human angles are relevant for deciding those
issues. The Court then does not give emphasis
on what the parties say, it has to exercise a
jurisdiction which is aimed at the welfare of
the minor. The word ‘welfare’ used in S. 13 of
the 1956 Act has to be construed liberally and
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. Though the provisions of the
special statutes which govern the rights of the
parents or guardians may be taken into
consideration, there is nothing which can
stand in the way of the Court exercising its
parents patriae jurisdiction arising in such
cases.”

13. In Gita Hariharan Vs. Reserve Bank of India with
Dr.Vandana Shiva Vs. Jayanta Bandhopadhyaya another, AIR
1999 SC 1149, the Supreme Court considered the language of
section 6 of the Hindu Minority and Guardianship Act, 1956 and 3
Judges Bench observed by majority of 2+1 as under:-

“Section 6(a) uses the words, “the father
and after him, the mother”. This phrase
on a cursory reading, does given an

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M.A. No.2462 of 2019

impression that the mother can be
considered to be natural guardian of the
minor only after the lifetime of the
father. If the section is so understood
the section has to be struck down as
unconstitutional as it undoubtedly
violates gender equality, one of the
basic principles of our Constitution. It
is well settled that if on one
construction a given statute will
become unconstitutional, whereas on
another construction, which may be
open, the statute remains within the
constitutional limits, the Court will
prefer the latter on the ground that the
Legislature is presumed to have acted
in accordance with the Constitution and
courts generally lean in favour of the
constitutionality of the statutory
provisions. The word ‘after’ need not
necessarily mean ‘after the lifetime’. In
the context in which it appears in S.

6(a), it means ‘in the absence of’, the
word ‘absence’ therein referring to the
father’s absence from the care of the
minor’s property or person for any
reason whatever. If the father is wholly
indifferent to the matters of the minor
even if he is living with the mother or if
by virtue of mutual understanding
between the father and the mother, the
latter is put exclusively in charge of the
minor, or if the father is physically
unable to take care of the minor either
because of his staying away from the
place where the mother and the minor
are living or because of his physical or
mental incapacity, in all such like
situations, the father can be considered
to be absent and the mother being a
recognised natural guardian, can act
validly on behalf of the minor as the
guardian. Such an interpretation will be
the natural outcome of harmonious
construction of S. 4 and S. 6 of HMG
Act, without causing any violence to
the language of S. 6(a).”

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M.A. No.2462 of 2019

14. Therefore, it is the clear position of law that the
paramount consideration is the welfare of child and as per section
17(2) of the Guardian and Wards Act, 1890, the Court is bound to
take decision after taking into consideration the age, sex and
religion of the minor, the character and capacity of the proposed
guardian.

15. In this case, the learned lower court passed the order only
upon the basis of illicit relationship of the appellant with another
person. The Court has not observed the capacity of the proposed
guardian. Sufficient pleadings are available on the record.
Therefore, the Court should examine the financial capacity of both
parties. In this case, the girl child was aged about 10 years at the
time of filing of the application in the year 2016. At present, she is
a girl aged about 13-14 years. The interest of girl should be
protected and Court is obliged to examine all circumstances of
both parties. The only reason that the appellant is having illicit
relationship with another person, cannot be considered as sufficient
ground.

16. In the case of Smt. Sadhana Randev Vs. Santosh
Kumar, (1998) 1 DMC 710 (1997) AllWC 1796 it was argued
before the High Court that the wife has relation with a person
named Sanjeev Mishra and she has a daughter, therefore, she is not
entitled for the custody of the child. The Court said in Para 10 that
it should not disqualify the wife to become a guardian and keep the
custody of the children for the following reasons :-

“10. Even for the argument’s sake
assuming that she is having some relations
with Sanjiv Misra, it should not disqualify
her to become a guardian and keep the
custody of the child for the following
reasons:

(i) The children have expressed their
preference.

(ii) She being the mother and motherly
instinct is of emotional value than fatherly
instinct. The children are living with the

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M.A. No.2462 of 2019

mother and she is given education to them.
It would not be possible to hand over the
children against their wishes to the father
as they are now grown up beyond 13 years.

(iii) It cannot be ruled out that the father
has an intention to grab the property and as
such wants to get the custody of children
and then dispose of the property. The
mother also cannot dispose of the property
without the consent of the Court i.e. the
District Judge unless the District Judge is
found that it is essential for the benefit of
the minor and in such circumstances if she
has taken some social help from Sanjiv
Misra it does not mean that she is virtually
living as wife. Once the allegations of
chastity are levelled against the wife by the
husband and there is complete breakdown
of marriage, no reconciliation is possible.”

17. It appears from the record that the appellant/wife is
educated upto M.Sc., M.Phill and B.Ed. She is also working as
Teacher in Government School Semra Madhiya; while the
respondent is having the qualification only upto B.A. It
appears from Para 16 of the impugned order that the appellant
also produced documentary evidence regarding her income.
The respondent has also admitted in Para 21 of his statement
that his wife is serving as Government Teacher and receiving
the pay about Rs.30,000/- p.m. and from the beginning she is
bearing the expenses of education of both the children. He has
also admitted that he is not having any special source of
income. He also accepted the suggestion that his wife is in
better condition to bear the expenses of children. In para 22 he
said that he was working as Supervisor in Vidhya Stores and
getting Rs.4000/- p.m.

18. Therefore, in view of aforesaid it appears that the trial
court has not considered the aforesaid aspect. The trial court
dis not observe the evidence for the purpose of deciding the
financial capacity of both parties. In addition to that, it appears

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M.A. No.2462 of 2019

that on 15.11.2018 an application was filed by the appellant
before the lower Court for granting the permission of recording
the statement of daughter Muskan Khare before the Court. It
was stated that the statement is essential for the purpose of
deciding the willingness of girl. The husband filed the reply of
aforesaid application on 10.12.2018. The trial court dismissed
the aforesaid application on 22.12.2018 by observing that there
is no any provision in the Act for recording the evidence of
child. The aforesaid observation of the trial court is not
correct. It is settled law that the paramount consideration is the
welfare of child for deciding the issue of custody. Muskan is a
girl child, aged about 13-14 years, therefore, she is able to give
the statement before the Court. The trial court is competent to
record the statements of wards. The trial court is also
competent to interact with the children. Interaction with the
children and the evidence of children may help the Court in
deciding the custody and for taking the proper decision in
relation to the welfare of children.

19. Therefore, the view taken by the lower Court is not
sustainable and the matter is liable to be remanded for fresh
decision.

20. Accordingly, the impugned order is set aside and the
matter is remanded back to the Principal Judge, Family Court,
Damoh with the following directions:-

1. The trial court will give the opportunity to the appellant
of recording the evidence of girl Muskan.

2. The trial court may interact with both children in
chamber of the Court.

3. The trial court will give the opportunity of hearing to
both the parties and thereafter pass the order in the light of
section 17 of the Guardians and Wards Act, 1890 and give the
clear finding regarding the character and capacity of both
parties.

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M.A. No.2462 of 2019

21. The aforesaid exercise will be completed as far as possible
within 6 months from 12.8.2019.

22. Both parties are directed to remain present before the trial
court on 12.8.2019.

23. With the aforesaid observations/directions, the present
appeal stands disposed of.

(SUJOY PAUL) (B.K.SHRIVASTAVA )
JUDGE JUDGE

TG/-

Digitally signed by TRUPTI
GUNJAL
Date: 2019.07.27 15:20:05
+05’30’

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