IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CIVIL APPELLATE JURISDICTION. FAMILY COURT APPEAL NO. 133 OF 2009 WITH CIVIL APPLICATION NO. 227 OF 2009. Basant Kumar Mishra & Ors. ... ... .... ..Appellants. V/s Hrudananda Panda & Ors. ... ... .. ... ..Respondents. Ms.Anjali Patil, Adv. For the appellants. Mr.P.G.Karande, Adv. For the respondents. CORAM: A.P.DESHPANDE AND SMT. R.P.SONDURBALDOTA, JJ. 4th May, 2010. ORAL JUDGMENT: (Per Deshpande, J.) The present family court appeal is directed against a judgment and decree passed by the family court disposing of Petition Nos.D60/07 and D10/2008 filed by the parties to this appeal under sections 6A and 13 of the Hindu Minority & Guardianship Act, 1956. The respondent is the father of the minor by name Stotra whose custody is the subject matter of this appeal whereas the appellants are the grand father­in­law and grand mother­in­law from the maternal side. Few facts that are necessary to adjudicate the issue that arise for consideration in this appeal are narrated in brief here in below: The daughter of the appellants by name Shaswati was married to the respondent in the year 1997. The mother of the child viz. wife of 1 the respondent delivered a son in the year 1999. After the birth of the child the child stayed in the company of his father and mother. When the respondent came to be transferred to Mumbai he was working as Deputy General Manager in rural planning department of Reserve Bank of India. As of now he is working as General Manager, in Ranchi division of Reserve Bank of India. Needless to mention that financially the respondent is well placed and is earning a salary of more than Rs. 50,000/­ a month. The respondent is also well educated having passed MSc and is also a certified associate of Indian Institute of Bankers. 2. The respondent instituted a petition for declaration of guardianship claiming permanent custody of the child by contending that he had shifted to Mumbai on his transfer along with his family which then comprised of his wife and son. It is then contended that there used to be frequent quarrels between the respondent and his wife and with a view to resolve the differences the respondent and his wife had also consulted a marriage councilor. Despite efforts made in that direction the differences were not ironed out and frequent quarrels continued. Ultimately wife of the respondent committed suicide by hanging on 9.6.07. It is the case of the respondent that he had no role to play in the unfortunate incident wherein his wife succumbed to death. The respondent was grief stricken and very disturbed on account of death of his wife. The respondent’s sister­in­law viz. the sister of the deceased wife lodged a complaint with the police against the present respondent blaming him for the death of his wife and on account of that a criminal case came to be registered against the respondent for the alleged commission of offence under section 306 read with section 498A of IPC. The respondent applied for gant of bail which application came to be favourably considered. However while releasing the respondent on bail 2 one of the conditions imposed was that the respondent shall not contact, meet or approach any of the witnesses in the case and since the minor child was cited as a witness to bring home the ill treatment meted out to his mother the respondent was apprehensive in having access to the minor son as according to him the present appellant would have exploited the situation by contending that the respondent had breached the conditions of bail. According to the respondent he is financially sound and he being the natural guardian of the child and there being absolutely no circumstance against him to refuse the custody, he is entitled to the declaration of guardianship and is also entitled to custody of the child. It is also contended that the appellants being of advanced age are not physically and financially capable of taking care of the welfare of the child. It is pointed out that the father­in­law of the respondent is aged about 68 years and the mother­in­law is of about 65 years. The appellants have two sons and a daughter who are married and stay away from the appellants. It is also case of the respondent that his mother can come to reside with the respondent to attend to and take care of the child. It is also expressed that the respondent would do whatever is necessary to keep the child in comfort and has also shown readiness to engage services of a maid servant. 3. Per contra, according to the pleadings of the appellants before the family court the respondent claimed the custody of the child mainly with a view to evade criminal prosecution as the child was key witness to establish ill treatment to his mother at the hands of the respondent. Various allegations are made touching demand of dowry, physical assault, mental torture by respondent to his wife. The appellant also claim to be financially sound and is said to be receiving good amount of pension as the grand father retired on attaining age of superannuation as Chief 3 Conservator of Forests from the State of Orissa. 4. The respondent did lead evidence before the family court to bring home the facts narrated in the petition filed by him and to oppose the petition filed by the present appellants. He was cross examined at length. The present appellants though chose to place on record an affidavit of examination in chief did not make themselves available for cross examination and hence the family court rejected the evidence tendered in examination in chief and reached a conclusion that the welfare of the child would be safe if the custody is handed over to the father and hence proceeded to declare the father to be the natural guardian of the person and property of the minor. 5. The learned counsel for the appellant contended before us that the child is staying with them since last more than three years i.e. since the death of his mother. The child is also stated to have been admitted to a good school of repute at Bhuvaneshwar. The school wherein the child is admitted is a recognised school by name Delhi Public School and the education imparted in the said school is of high class. It is also contended by the appellants that there is no one in the family of the respondent to look afater the child and the respondent being a high ranking officer in Reserve Bank of India is engaged in work and hence it is submitted that the child be permitted to be retained in the custody of the grand parents. Per contra, it is case of the respondent that only with vengeance his petition for custody is being opposed. It is contended by the learned counsel for the respondent­father that as the grand parents carry an impression that the respondent had ill treated their daughter solely with a view to torture and harass the respondent, they are trying to keep the son of the respondent away from him to take revenge. It is claimed that the father is physically and financially sound and as there is absolutely 4 nothing to object to the guardianship and custody of the respondent except the fact that the respondent was prosecuted for alleged commission of an offence under section 306 read with section 498A which has resulted in acquittal of the respondent, he is entitled to the guardianship and custody. It will not be out of place at this juncture to point out that the respondent has been acquitted and we are also informed that the appeal filed by the State so also the complainant has been dismissed by the High Court on account of which finality is attached to the judgment of sessions court acquitting the respondent. The fact that the respondent was prosecuted cannot have any bearing on deciding fitness of the respondent to be declared as guardian and be handed over custody of the child more so after acquittal of the respondent. It is emphatically contended that but for the said prosecution there is nothing brought on record even remotely to suggest that the respondent is not fit to have the custody of the child. We have perused the judgment of the family court which goes to conclude that the welfare of the child would be safe if the custody is with the father. From the record it is revealed that after wife of the respondent committed suicide there was no one else in the family of the respondent to look after the child and after arrest of the respondent on account of complaint made by respondent's sister­in­law the present appellants have taken custody of the child and removed him to Bhuvaneshwar. It can be thus seen that since birth the child was in the company of the respondent and his mother and after the arrest of the respondent the grand parents had taken the child to Bhuvaneswhar. Thus the controversy in regard to guardianship and custody of the minor which emerges in the above fact situation need to be resolved in the best interest of the minor. Presently under an interim order of this court the temporary custody of the child is 5 with the father viz. the respondent. Father had brought the child along with him from Ranchi where he is stationed. The appellants who are the grand parents of the child have attended the matter personally and have come from Bhuvaneswhar. With a view to ascertain as to in whose company the welfare of the child would be better protected, we had interviewed the child alone so also the grand parents and lastly the respondent­father. The child is presently aged about 12 years and admitted to a good school by name Delhi Public School. During the interview of the parties it is revealed that there are branches of Delhi Public school and one of these branches happen to be at Ranchi as well and as such even if the custody of the child is to be handed over to the respondent the same will not affect the education of the child in any manner as he could be admitted to Delhi Public School itself. The child has categorically stated during interview that he loves his father so also grand parents. We have no iota of doubt that the grand parents of the child so also the father love and care for the child equally. All the rival parties are interested in welfare of the child and it needs to be so observed in the judgment. It is obvious having regard to the tender age of the child that he is not in a position to make intelligent preference. The child appeared to be bit confused. No one can expect a child of 12 years to make an informed decision in regard to his own welfare, more so, when the child has undergone a shock and trauma on account of an event when his mother committed suicide and the father was arrested by the police separating both the parents from the child. It can be seen that suddenly shelter of both the parents was lost by the child. During the stay of the child in the company of the appellants he must have overheard the conversation blaming his father for the unnatural death of his mother. This not only stopped there but the child was also examined 6 as witness in the criminal case with a view to bring home the fact of alleged ill treatment to the child’s mother at the hands of the respondent. It is bound to take some time for the scars of trauma to be erased. 6. The appellants during the interview unequivocally stated that they will have no objection to hand over the custody of the child to the respondent if the child so desires. Under section 6 of the Hindu Minority Guardianship Act, 1956 the natural guardian of the Hindu minor is the father subject to an exception that the custody of the minor who has not completed age of five years shall ordinarily be with the mother. In the present case the boy is aged about 12 years. Hence it goes without saying that the respondent is the natural guardian of the child and entitled to his custody. There is nothing brought on record to indicate that the respondent is not a fit person to be declared guardian of the minor child. As observed here in above the respondent who is well educated has very bright career in as much as at the age of 47/48 years he is presently General Manager of Ranchi region of Reserve Bank of India drawing salary of more than 50,000/­ rupees. It is revealed from his evidence that he is keen on taking care of the child providing him with the best of education and all the comforts in life. The mother of the respondent is also willing to stay with the respondent so that the minor child can be properly looked after. We have perused the judgment of the family court which goes to consider various aspects of welfare of the child and conclude that the interest of the child would be better served if the respondent is declared guardian of the minor and is handed over the custody. Having regard to the advanced age of the appellants coupled with the fact that the respondent is the natural guardian we are in agreement with the view taken by the family court that the respondent need to be declared as guardian of the person and property of the minor 7 entitling him to his custody. We have also no ito of doubt that the child’s development hereafter could be better looked after by the father. At no point of time when the child was in the company of the respondent under the consent terms having access, the child has shown reluctance to go with the father and/or was unhappy after meeting him. Having regard to the totality of facts and circumstances we are of the clear view that the respondent­father who is natural guardian should be declared guardian and handed over custody of the minor son. As the appellants are grand parents of the child and as they have been looking after the child for few years past they would obviously have right of access and though we are granting custody to the respondent we recognise the right of access to the present appellants who also love the child and have shown affection towards him. Learned counsel for the respondent­father has no objection for the appellants to have access to the child. It is also stated by the learned counsel for the respondent that during school vacation the child can share the vacation with his grand parents by staying at their residence. Learned counsel for respective parties agree to work out modalities in regard to stay of the child during vacation at the appellants’ place and provide access to the grand parents. In the result appeal stands dismissed. We declare the respondent to be the guardian of person and property of the minor child Stotra. We also declare that the respondent shall have permanent custody of minor child Stotra. The respondent shall retain custody of the child as he is presently in temporary custody under the interim orders passed by this Court. Access to the appellants to be worked out mutually by the parties. Appeal dismissed with no order as to costs. 8