^^; ^/• ^- IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR F.A. (Misc.) N0. <^—^2010 Q^^ g Appellant : ^Sfiailesh Khandelwal, ^Non-Applicafit-"' ^^^ S/o Shri Ram Kishan Khandelwal, 39 yrs ^ \S^\ . " R/o Jawahar Nagar, Raipur, ::-.." .^" ^^"l...^ Distt. Raipur (C.G.) ^ Versus ^^"' ^' Respondent "Applicant ^Meenakshi Khandelwal, D/o Shri Prakash Khandelwal, 32 yrs R/o Civil Township, Rour^ela (Orissa) ^^ FIRST APPEAL U/S 19(11 OF THE PAMILY COURTS ACT R/W SECTION 47 OF THE GUARDIANS AND WARDSACT. T~ ..^< HIGH COURT OF CHHATJTISGARH AT BILASPUR F.A.(M.) No. 79/2010 APPELLANT Shailesh Khandelwal Versus RBSPONDBNT Meenakshi Khandelwal ORDER For considepation t Sd/- N.K. Agrawal Judge HON»BLESHRI I.M. OUDDUSI, J ^ Judge 00-11-2010 Postfor: ^ -11-2010 Sd/- N.K. Agarwal Judge v ' ^v..^/-". •-^^ss^s^^^^^Ki^a'^' •'•^'. "< \^y ^^QsSs^ IN**»11».- HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANT RESPONDENT F.A.(M.) No. 79/2010 Shailesh Khandelwal Versus Meenakshi Khandelwal DB:- HON'BLE SHRI I.M. OUDDUSI & HON»BLE^HRIN.K. AGARWAL, JJ PRESENT:- Shri G.D. Waswani and Shri B.P. Sharma, Advocates for the appellant. Shri M.K. Bhaduri, Advocate for the respondent. ORDER {3 -11-2010) Per N.K. Agarwal, J. 1. This appeal has been filed by the appellant/non-applicant against the order dated 13-7-2010 passed by the Ist Additional Principal Judge, Family Court, Raipur in Guardian and Wards case No. 7/2010. 2. Facts of the case in brief are as under:- i. On 11-12-1999, marriage of appellant was solemnized with the respondent. Out of said wedlock, a female child naniely Ku. Shreshtha was born on 15-11-2002. Application filed under Section 13(B) of the Hindu Marriage Act, 1955 (for short, hereinafter referred to as 'the Act of 1955') for grant of divorce by mutual consent was allowed by the Court of Principle Judge, Family Court, Raipur vide judgment and decree dated 1-2-2008 and the divorce decree was passed. In the above proceedings, it has been contended that the minor female child Ku. Shreshtha will remain in the custody of respondent herein. i.e. mother. However, the Court did not pass any / |niniirwi» order regarding custody of the minor child under Section 26 ofthe Hindu Marriage Act, 1955. ii. The non-applicant filed an application under Section 25 of Guardians and Wards Act, 1890 (for short, hereinafter referred to as "the Act of 1890'), for custody of minor child Ku. Shreshtha inter alia stating therein that Ku. Shreshtha was handed over to her when the decree of divorce was passed and since then the child was in her custody. She left her daughter to her father due to summer vacations as she was working in Hyderabad in HSBC Bank. The appellant brought Ku. Shreshtha with her father's permission for few days to Raipur without her consent. Thereafter despite several efforts made by her and her father, the custody of Ku. Shreshtha was not given to her, even appellant did not allow her to meet with the child, also denied her right of guardianship. iii. The appellant in his reply to the above application admitted birth of Ku. Shreshtha out of their wedlock on 15-11-2002. However, it has been cor^tended that respondent's father himself handed over the child to him on 6-7-2008, also executed consent letter in this regard stating therein that in future he and his daughter Meenakshi may meet with the child with the consent of the appellant. The child is being well maintained by him, also getting his and his parents' love and affection. The child is very happy with them and the application deserves to be dismissed. iv. Learned trial Court vide order impugned allowed the respondent's application and directed the appellant to hand over the child within a period of one month to the respondent. Hence this appeal. 3. Shri B.P. Sharma, learned counsel appearing for the appellant would submit that the respondent is working and living alone at Hyderabad, whereas minor was living with appellant at Raurkela. Looking to the nature, place -^ .-^^ ^ t'!». and timings of her job, it was not possible for her to look after and take care of the child. Her parents are also not in a position to maintain and look after the child and due to this, they have handed over custody of minor to the appellant. The minor being of the age of 7 years and the appellant being her father, is her natural guardian and the child was in fact in his legal custody through out the period. The appellant is maintaining the child properly, giving her proper education in a well reputed school of Raipur, providing all the facilities and comfort to help her in her intellectual, cultural and social development in the life, also caring for her physical comfort and moral values. Looking to the overall circumstances, welfare of the child is in keeping her with him. Learned trial Court has seriously erred in allowing respondent's application. Learned trial Court has passed the order impugned ignoring all the relevant provisions of the Act of 1890 and Hindu Minority and Guardianship Act, 1956 (for short, hereinafter referred to as the Act of 1956'). Even the learned trial Court has not made any attempt to obtain preference of the child although the minor is old enough to form her intelligent preference. Reliance has been placed on the judgment of Honyble Supreme Court in the cases of Sheila B. Das -v- P.R. Sugasree reported in (2006) 3 SCC 62, Vikram Vir Vohra -v- Shalini Bhalla reported in (2010) 4 SCC 409 and Vishnu and others -v- Jaya reported in (2010) 6 SCC 733. On the other hand, Shri M.K. Bhaduri, learned counsel appearing for the respondent would support the order impugned and would contend, the child was in the custody of mother as per order of the Family Court in divorce case; the child was illegally removed from her custody; the respondent can better look after the child; the respondent is living at a big place i.e. Hyderabad earning very good salary, can spend more and more on education and maintenance of the child; it is in the ^ v;., •'"' ^ ^:?;.>v v" 4.' "%ss^ | (^) welfare of the child to be in mother's custody, the child is only 7 years old, no importance could be given to the preference expressed by her to stay with the appellant; and the appeal deserves to be dismissed. Reliance has been placed on the judgments in the cases of Baddi Reddi Bulliraju -v- K. Surya Rao reported in AIR 1959 AP 670, Lachhmi Ram -v- Smt. Prabhoo_reported in AIR 1964 HP 1, Geeta and others -v- Ratan Dhuraji reported in AIR 1966 MP 221 and Mohan Kumar Rayana -v- Komal Mohan Rayana reported in 2010 AIR SCW 2504. We have perused the order impugned and record of the trial Court. The appellant hereinafter is the father of the child living with his parents i.e. grand parents of the child. Earlier at the tinie of divorce it was agreed upon between the parties that the minor will remain in the custody of the respondent, although no order under Section 26 oftheAct of 1955 has been passed in divorce proceedings. Later on it appears, the father of the respondent handed over the child to the appellant who admitted the child in school where the child is prosecuting her studies. Parents of the appellant are financially sound. Appellant's shop is annexed to his residence and the appellant is able to devote sufficient time to the child. On the other hand, the respondent is living alone in the city of Hyderabad. Looking to her job timings, it would be very difficult for the respondent to maintain and take care of the child, therefore, the child was kept at Raurkela in the custody of her parents who in turn have handed over the minor to the appellant. The Act 1890 consolidates and amends the law relating to the Act of 1890. Section 4 of the Act defines "minor" as "a person who has not attained the age of majority". "Guardian" means "a person having the care of the person of a minor or of his property, or of both his person and 8. property". "Ward" is defined as "a minor for whose person or property or both there is a guardian55. Sections 5 to 19 of the Act relate to appointment and declaration of guardians. Section 7 thereof deals with "power of the Court to make order as to guardianship" which reads as under: "7. Power of the court to make order as to guardianship, —(1)Where the court is satisfied that it is for the welfare of a minor that an order should be made— (a) appointing a guardian of his person or property, or both, or (b) declaring a person to be such a guardian, the court may make an order accordingly. (2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the court. (3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid haye ceased under the provisions ofthis Act/? Section 8 of the Act of 1890 enumerates persons entitled to apply for an order as to guardianship. Section 9 empowers the Court having jurisdiction to entertain application for guardianship. Sections 10 to 16 deal with procedure and powers of Court. Section 17 is another material provision and may be reproduced hereunder: "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, .1 '-^5' consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the niinor. (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 the minor is old enough to form an intelligent preference, the court raay consider that preference. Xxx xxx xxx (5) The Court shall not appoint or declare any person to be a guardian against his will." 9. The Act of 1956 is another important statute relating to minority and guardianship among the Hindus. Section 4 defines "minor" as "a person who has not completed the age of eighteen years". "Guardian" means "a person having the care of the person of a minor or of his property or of both his person and property", and includes a "Natural guardian". "Natural guardian" means any of the guardians mentioned in Section 6 ofthe Act 1956. 10. Section 6 enacts as to who can be said to be a "Natural guardian". It reads thus: "6. Natural guardians of a Hindu minor.—The natural guardians 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 injoint 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; ,^:i^^'.-^ i^',-^i '"• i- L. '4. 1—wr: (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: 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 herm.it (vanaprastha) or an ascetic (yati or sanyasi). Explanation.—In this section, the expressions Tather' and 'mother9 do not include a stepfather and a stepmother." 11. Section 8 thereof enumerates powers of natural guardian and Section 13 deals with welfare of minor which reads thus: "13, Welfare of m.inor to be paraniount consideration.— (1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare ofthe niinor shall be the paramount consideration, (2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the rainor/' 12* If we analyze the above provisions, one thing is clear that in a matter of custody of a minor child, the paramount consideration is the "welfare of the minor?? and not rights of the parents or relatives under a statute which are in force. The word <:'welfare?? used in Section 13 of the Act of 1956 has to be construed literally and must be taken in its widest sense. (^ 1_^. 13. Section 6 of the Act of 1956 provides that the natural guarding of a Hindu minor, in case of a boy or an unmarried girl is 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. As per Section 13, of the Act of 1956, in the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paraniount consideration. Under Section 17 ofthe Act of 1890, the court is under a duty to appoint the most suitable person amongst the rival claimants for guardianship, although a person who under thepersonal law would be entitled to the custody of the child in preference to any one else. As per Section 17(3) of the Act of 1890, if the minor is old enough to form intelligent preference, the court may consider that preference. Scope of Section 17 of the Guardians and Wards Act is that the court has to see who of the several applicants has a preferential right to be appointed as guardian of the minor under the personal law keeping also in view the welfare of the minor. The court should be guided by the sole consideration of the welfare of the minor. 14. The Apex Court in case of Sumedha Nagpal -v- State of Delhi and others reported in 2000 (9) SCC 745 while interpreting the proviso to Section 6 (a) ofthe Act of 1956, held that decision on the question of custody should be made bearing in mind the welfare of the child - It cannot be made simply on the basis of right of the parties under the law, and observed in para 4 and 5 of the judgment as under:- "4. Even at this stage, Shri D.D. Thakur, the learned counsel for the petitioner laid great emphasis that we should not shirk our task at least with respect to the limited question of ordering restoration of the custody of the minor child to the mother. He submitted that though Section 6 of the Act <@ I^N^^ recognises guardianship of the minor child with both the parents, exclusive right of the mother is recognised in respect of the custody of a minor child below five years. This legislative recognition of the maternal instinct should be honoured by us by treating the custody of the child with the father as illegal and the custody should be handed over to the niother pending the proceedings suggested by us earlier in the course of this order. 5. In deciding such a question, what we have to bear in mind is the welfare of the minor child and not decide such a question merely based upon the rights of the parties under the law. In the pleadings and (he material placed before us, we cannot say that there is any, much less clinching, material to show that the welfare of the minor child is at peril and calls for an interference. The trauma that thechild is likely to experience in the event of change of such custody, pending proceedings before a court of competent jurisdiction, will have to be borne in mind. We are conscious of the emphasis laid by the learned counsel for the petitioner that the lap of a mother is the natural cradle where the safety and welfare of the child can be assured and there is no substitute for the same, but still we feel that at this stage of the proceedings it would not be appropriate for us to interfere in the matter and leave all matters arising in the case to be decided by an appropriate forum irrespective of whatever we have stated in the course of this order. Even though we have dealt with the contentions raised by Shri D.D. Thakur as to grant of interim custody to the petitioner, we should not be understood as having held that a petition would lie under Article 32 for grant of custody of a minor child; we refrain from examining or deciding the same." ^NWNUU^ 10 15. The Hon'ble Apex Court in the case of Elizabeth Dinshaw (Sint.) -v- Arvand M. Dinshaw and another reported in 1987 (1) SCC 42 while dealing with Section 7 and 17 of the Act of of 1890 has held that when a question arises before a court pertaining to custody of a minor child, the matter has to be decided not on considerations of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the niinor. 16. The Hon?ble Apex Court in case of Anjali Kapoor (Smt.) - v- Rajeev Baijal reported in 2009 (7) SCC 322 relying upon the two judgments referred to hereinabove has held in para 26 that "ordinarily, under the Guardian and Wards Act, the natural guardians of the child have the right to the custody of the child, but that right is not absolute and the courts are expected to give paramount consideration to the welfare of the minor child. The child has remained with the appellant grandmother for a long time and is growing. up well in an atmosphere which is conducive to its growth. It may not be proper at this stage for diverting the environment to which the child is used to. Therefore, it is desirable to allow the appellant to retain the custody of the child." 17. The Supreme Court in case of Mohan Kumar Rayana -v- Komal Mohan Rayana reported in 2010 (5) SCC 657, Gaurav Nagpal -v- Sumedha Nagpal reported in 2009 (1) SCC 42, Athar Hussain -v- Syed Siraj Ahmed and others reported in 2010 (2) SCC 654 have also held that welfare of the child is the sole and single yardstick to assess coinparative merit of the parties contesting for guardianship. 18. The Hon'ble Supreme Court in case of Mausami Moitra Ganguli -v- Jayant Ganguli reported in 2008 (7) SCC 673 has observed in para 19 to 23 as under:- @) r- 11 "19. The principles of law in relation to the custody of a minor child are well settled. It is trite that 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. Indubitably, the provisions of law pertainlng to the custody of a child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. 20. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the court has to see primarily to the welfare of the child in determining the question of his or her custody. Better flnancial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration. i^ 12 s^ 21. In Rosy Jacob v. Jacob A. Chakraniakkal reported in (1973) 1 SCC 840) a three-Judge Bench of this Court in a rather curt language had observed that: "15. ... 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 court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. 22. In Halsbury's Laws of Bngland (4th Edn., Vol. 13) the law pertaining to the custody and maintenance of children has been succinctly stated in the following terms: "809. Principles as to custody and upbringing of mmors.- 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 13 rights and authority of mother and father are equal and are exercisable by either without the other." 23. Having bestowed our anxious consideration to the material on record and the obseryations made by the courts below, we are of the view that in the present case there is no ground to upset the judgment and order of the High Court. There is nothing on record to suggest that the welfare of the child is in any way peril in the hands of the father. In our opinion, the stability and security of the child is also an essential ingredient for a full development of child's talent and personality. As noted above, the appellant is a teacher, now employed in a school at Panipat, where she had shifted from Chandigarh some time back. Earlier, she was teaching in some school at Calcutta. Admittedly she is living all alone. Except for a very short duration when he was with the appellant, Master Satyajeet has been living and