IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Appeal from Order No. 421 of 2015
Yogesh Kumar ……Appellant
Versus
Smt. Parul …… Respondent.
Present:
Mr. B.S. Adhikari, Advocate for the appellant.
Mr. B.M. Pingal, Advocate for the respondent.

JUDGMENT

Coram: Hon’ble Rajiv Sharma, J.

Hon’ble Sharad Kumar Sharma, J.

Dated: 25th July, 2017
Per Hon’ble Sharad Kumar Sharma, J.

The settled law of guardianship was promulgated by
Legislature under the Guardianship and Wards Act. Under
the said Act of 1890, the powers have been granted to the
Court, where the Court can appoint a guardian, if the Court
is satisfied that it is for the “welfare” of the minor. Under the
Act an order can be made for appointment of Guardian or
for declaring a person as to be a Guardian of a ward. The
implication of Section 7 was that as soon as the Court
appoints a guardian, it substitutes the guardian already
working.

The proceedings before the Court was involved under
the Guardianship and Wards Act, exercises the power under
Section 25, the power of removing a ward or taking the
custody of the ward from the custody of the guardian and
handing it over to other persons, which the Court feels to be
appropriate and the prime consideration which is, is the
welfare of the child.

The Act does not define the term “ward” but it
literarily means the child whose interest is to be protected.

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In the instant case, the parties to the appeal have
solemnized their marriage on 27th April, 2001, and out of the
wedlock, a son was born on 7th March, 2002, named as Yash
Malik, who at the time when the dispute arose between them
was 9 years 6 months old and was a student in M.G. Public
School Muzzafarnagar. The second child, a daughter, was
born on 12th April, 2005, who was named as Utkrishi.

The case of the appellant was that the wife has
deserted him in 2011, and at the time of desertion, son Yash
Mailik was in the custody of the mother and the daughter
Utkrishi was in the custody of the father. There have been a
series of disputes and litigations inter se one another, for
example, the wife initiated proceedings under Section 498-A
I.P.C. against the appellant and family members, who were
arrested. Then there had been a Miscellaneous Case under
Section 406 IPC by wife where maintenance of Rs. 8,000/-
p.m. was awarded.

The dispute here in the appeal pertains to the custody
of child Yash Mailk which is the basis of the present appeal
from order. Whereas there has been another proceedings
which has been initiated by the wife for getting the
guardianship and custody of the daughter Utkrishi, which is
not an issue in this appeal.

According to the respondent while she was opposing
the application for grant of custody of minor child Yash
Malik, on the application filed under Section 7 read with
section 25 by the appellant stated that the husband who is an
Assistant Teacher in a Government Primary School,
Muzzafarnagar and he was in rift with the respondent from
the time he has initiated the proceedings under Section 13
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before the Family Court, Muzzafarnagar for dissolution of
marriage.

The basis of the application of the appellant was that
since, admittedly, according to the wife herself, which she
has contended in the proceedings for getting maintenance
that she is a lady who is not having any source of income, in
that backdrop, the husband sought that since she admittedly
has no source of earning, the best interest of the minor son as
well as his education could be served by giving custody of
the son to the appellant, because since he being an Assistant
Teacher, having sufficient earning would be in a better
position to take care of the son.

It chanced so that there was a Criminal Case, being
Case No. 2497 of 2013, in which the appellant is an accused
for the offences under Sections 420, 467 and 468 I.P.C. The
issue involved in the said original proceedings was that the
appellant was an accused of getting an employment by
showing fraudulent “permanent residence certificate” in
which after culmination of the trial, he has been convicted
and the appeal against the said order is pending.

The learned Family Court, while considering the
application under Section 7 read with Section 25 has not
considered the inter se case of one another as raised in
application and objection, but has rather only confined its
findings from the view point of conviction of the appellant
under Sections 420, 467 and 468 I.P.C. would create
impediment in granting custody of the child to father.

To support the contentions, the appellant appeared in
the witness box as PW1 and placed on record the salary
certificate and various other evidences to show that the
interest of the child could be best safeguarded if he is given
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in the custody of the appellant. There had been a rival
evidence submitted by the respondent wife alleging the
decision of the Judicial Magistrate convicting him under
Sections 420, 467 and 468 I.P.C. would create impediment in
granting custody of the child to the father.

This Court feels that the parties to the present appeal
admit the marriage. They admit the facts of the two children
having been born out of the marriage and in the pleadings
they admit that the son is with the mother and the daughter
is with the father.

It is also not in dispute that there have been number of
criminal proceedings going on against the appellant. Either
they have been concluded or at the appellate stage.

This Court feels that love and affection towards
children and right of husband is equally available to an
accused person who is an accused in criminal offences,
because relation of father and son is not governed by
conviction or acquittal of a person. He or she cannot be
deprived from love and affection of the children irrespective
of the fact he or she being convicted under any of the
offence, in particular, when the offence in which conviction
has been made in case of the appellant is subject matter
before the Appellant Court.

The Guardianship and Wards Act of 1890, the
Legislature in its wisdom has provided the factum of
consideration to be taken care of by the court while granting
or refusing the guardianship of the child. The principle Act
which is a special Act for the welfare of the child do not
restrict the custody of the child even from a spouse who is
facing a criminal proceedings or has been convicted by the
Trial Court. The conviction or acquittal has got nothing to
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do so far as the proceedings of Guardianship and Wards Act
are concerned.

The consideration which the Court has to take care of
is the interest of the child and before whom it would be best
safeguarded. This Court feels that the findings recorded by
the Court below with regard to the conviction under Sections
420, 467 and 468 I.P.C. on the ground that he has obtained
appointment on the basis of the fraudulent domicile
certificate, cannot be borrowed to make it as basis to reject
the application under Section 7 read with 25 of the
Guardianship and Wards Act.

There is another aspect which has to be taken into
consideration. The offences of which the appellant is
accused of are pertaining to the procurement of fraudulent
certificate, taken as to be basis for getting the appointment.
Such type of offence may be a social offence, but it will not
govern the personal relationship or relationship in emotion
and sentiments have a play as far as it relates to the affection
which a father has for his children.

The judgment impugned do not refer any of the
condition taken in the application filed by the husband for
getting the custody of the minor son and thus, this Court
feels that it was incumbent on the Court below to have
recorded its findings to the propriety of the application and
counter application and with regard to the justification as to
whom the child would be safe. Not considering the same
and rejecting the application merely because of the offences
under Sections 420, 467 and 468 I.P.C, is absolutely
misnomer and unjustified.

If at all it is presumed that the criminal proceedings
may have nexus with another proceeding like the one in
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hand under Guardianship and Wards Act but how it is
related and how it will affect the rights of the guardianship
was required to be considered by the Court.

Although, it was pleaded but not the basis of the
judgment that the brother of the husband is also facing
proceedings under Section 13-B of the Hindu Marriage Act
against his wife, and thus, the stand of the respondent that in
the home, there is no female member who can take care of
the child. Since, the Court has not considered the issue from
that view point, this Court is refraining from making any
observation on that issue, which is to be decided afresh by
the Court after considering the rival contentions.

Even otherwise also the judgment lays down that the
findings of the criminal proceedings are only for the purpose
to settle a criminal offences which an accused has been
leveled with. The findings arrived in the criminal
proceedings cannot be borrowed for the purpose of the civil
proceedings and, in particular, the proceedings in the nature
of Guardianship and Wards Act.

Thus, the reason for rejecting the application is
absolutely untenable and the appeal deserves to be allowed.
Hence the impugned order is quashed. The matter is
remitted back to the Family Court to decide the application
afresh after taking into consideration one and only factor as
to what would serve the best purpose for the welfare of the
child. The application would be decided within four months
from the date of receipt of the order.

(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.)
25.07.2017 25.07.2017
Shiv