1 First appeal No.767 of 2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.767 OF 2011 1. Chandrakant S/o.Sakharam Bahalkar, Age-60 years, Occu-Business, R/o.Plot No.64, Badgujar Plot, Dhule, Tq. And Dist. Dhule 2. Ku.Pranjali D/o.Laxman Shirude, Age-5 years, Occu-Education, u/g. Of present appellant no.1 3. Swayam S/o.Laxman Shirude, Age-3 ½ years, u/g. Of present appellant no.1 APPELLANTS VERSUS Laxman S/o.Eknath Shirude, Age-34 years, Occu-Service, R/o.N-7, Cidco, Garware Stop, Near Stichwell tailors, Aurangabad, Ta. and Dist.Aurangabad RESPONDENT Mr.P.S.Paranjape, learned counsel for the appellants. Mr.K.C.Sant, learned counsel for respondent. (CORAM : A.V.POTDAR, J.) DATE : 12/12/2011 ORAL JUDGMENT : 1. Heard learned counsel for the parties. Admit. By consent of 2 First appeal No.767 of 2011 the parties, heard finally at the stage of admission itself. 2. This appeal is an exception filed u/s. 47 of The Guardians and Wards Act, against the judgment and order passed by the District Judge-1 Dhule in Civil Misc.Appl.No.54/2008 filed by the respondent, seeking custody of appellants no.2 and 3, his daughter and son. 3. Such of the facts as are necessary for the decision of this appeal can be summarized as : Respondent herein has filed Misc.Civil Application No.54/2008 on 03/07/2008 before the District and Sessions Judge, Dhule u/s. 6 and 7 of The Guardians and Wards Act of 1956 (In short, Act of 1956), seeking custody of his minor children. After marriage, he was residing with his wife at village Soygaon, Tal.Soygaon, Dist. Aurangabad, as he was serving in the court of J.M.F.C. Soygaon as a clerk. It is alleged that due to some psychic problem, his wife Ashwini expired on 20/10/2007. At the time of funeral of Ashwini, appellant no.1 herein, took custody of the minors and taken them to Dhule. Immediately thereafter on 27/12/2007, appellant no.1 filed an application for maintenance u/s. 125 of The Cr.P.C., for these minors against the respondent. Thereafter the respondent has filed the present application for the custody of these minors. Before filing of this application, in the month of January 2008, respondent served notice on appellant no.1, claiming custody of his minor children, 3 First appeal No.767 of 2011 failing which, to file the requisite application before the proper forum. It is stated that the appellant no.1 herein, due to his old age, and financial condition, is not capable to look after the minors, if the custody is kept with him, hence prayed for custody of these minors from the appellant no.1. 4. On service, appellant no.1 herein appeared in the said application and by filing his say, denied all the allegations lavelled against him. It is alleged that due to harassment at the hands of respondent, daughter of appellant no.1 Ashwini committed suicide on 19/10/2007 and accordingly, complaint was lodged in Soygaon Police Station at CR No.98/2007 for an offence punishable u/s. 304(B), 498A 323, 504, 506 r/w. 34 of the IPC. This complaint was lodged not only against the respondent, but the brother of respondent and other relatives also. It is also alleged in the said written statement that after demise of Ashwini, neither the respondent nor his relatives inquired about the minor children and have not taken any care of their welfare, so also of their education, hence reluctantly, the appellant no.1 bring these minors at Dhule. He also denied that deceased Ashwini was suffering from any psychic problem. On the contrary, it is alleged that due to harassment at the hands of respondent, life of Ashwini became so miserable that she had committed suicide. After the appellant no.1 had sought custody of the minors and filed an application for maintenance, to avoid the payment of that amount, this false application is filed. It is alleged 4 First appeal No.767 of 2011 that since the minors are residing with appellant no.1, the respondent has not made any arrangement towards maintenance of his minor children and in the light of this, prayed for dismissal of the appeal. 5. Record and proceeding received from the Trial Court shows that in support of respective contentions, the parties have led oral so also documentary evidence. It also shows that in support of the application, respondent has examined himself only and in support of the claim of appellants, appellant no.1 examined himself only. On the basis of pleadings of the parties, learned Trial Court has framed issue as, “To whom with the welfare of the Wards will lie” ? and answered the issue in favour of respondent herein considering the evidence led by the parties. That judgment is impugned in this appeal. 6. During the course of submissions, it is urged that the prime question required to be considered by this Court is that under the provisions u/s. 7 of the Act of 1956, whether the respondent is the proper person to be appointed as a guardian of the minor children. Learned counsel would further urge that to give the counter blast to the application for maintenance M.A.No. 540/2007, allowed by J.M.F.C.-2, Dhule, this application is filed only to avoid the order of maintenance passed by the learned Magistrate. It is also urged that considering the charge which was lavelled against the respondent 5 First appeal No.767 of 2011 and his relatives, even though they are acquitted, the evidence led by the parties before this Court required to be considered independently and if it is independently considered, then one can infer that the order passed by the learned Trial Court is erroneous and required to be quashed and set aside, hence prayed to allow the appeal. 7. Per contra, while opposing these submissions, learned counsel for respondent would urge firstly that the respondent is father of these minor children and apparently is a natural guardian as contemplated under the Old Act of 1890, unless it is positively established that the natural guardian is not capable to take care of his own children, in that circumstances only, other than the natural guardian, somebody else to be appointed as a guardian of the minor and then the custody of the minors to be handed over to that appointed guardian. Learned counsel would further urge that apparently the application filed before the Lower Court was filed by the respondent and not filed by the appellant no.1, the grand-father of the minors, to appoint him as a guardian of the minors and to retain the custody of the minors. Considering this aspect, he would further urge that provisions under the Act of 1956 required to be considered in the light with whom the welfare of minor is safe. In this light, considering the evidence led before the Court below, no interference is required at the hands of this Court in its appellate jurisdiction. 6 First appeal No.767 of 2011 8. After hearing learned counsels for both the parties, following points arose for my consideration. 1. Whether the judgment and order passed by the learned District Judge, Dhule is contrary to the legal provisions under the Act of 1956 ? 2. If the finding on point no.1 to be recorded in the negative, then what is the order ? 9. Finding on point no.1 : The relation between the parties is not under dispute. It is to be further considered that respondent is the father of the minors, hence in law, he is the natural guardian. So far as the criminal prosecution launched against the respondent and his relatives is concerned, the copy of the judgment passed in Sessions Case No.175/2008 dated 04/06/2011 is placed on record which shows that the respondent and his relatives were acquitted by the learned Additional Sessions Judge, Aurangabad in the same case vide judgment and order dated 04/06/2011. On perusal of the judgment of acquittal in the sessions trial, it indicates that acquittal was not recorded by giving benefit of doubt, but was given as the evidence led was not sufficient to prove the charges lavelled against the respondent and his relatives. 10. It is not under dispute that till the date of demise of deceased Ashwini on 19/10/2007, these minors were residing with their parents. It is to be noted that the custody of these minors was taken 7 First appeal No.767 of 2011 by the appellant no.1 on 20/10/2007. The facts pleaded by the respondent in his application are that while the funeral of deceased Ashwini was in progress, appellant sought custody of these minors, and is not disputed in the cross examination of the respondent, then the fact is clear that if for the welfare of these minors, the grand father has taken the custody of minors, then what is the necessity to immediately apply for maintenance on behalf of these minors. It further required consideration that on the date when the custody of these minors was sought by appellant no.1, the age of Swayam was 2 years and Pranjali was 4 years. Admittedly, at that time, neither Pranjali nor Swayam were attending any school. Secondly, at this juncture, the very purpose behind filing of this application required to be considered. Whether this application was filed really for the maintenance or with some otherwise motive. But this is not the forum to discuss that issue. But the fact remains that if the application for maintenance is filed within 2 months from the date of custody of minors was taken by the grandfather, then the action of filing of maintenance application is itself un-warranted and shows something otherwise. 11. Now in this light, the evidence led before the Trial Court require consideration. In the cross examination of the respondent, other than the respondent, who is at fault for non paying the maintenance amount, nothing is brought on record to show how the respondent is not worthy for the welfare of these minors. While deciding the 8 First appeal No.767 of 2011 application for custody of the minors, this point will play very vital role. Apart from it, in his examination in chief, he has not pleaded anything about what sort of arrangements, he has made for the future and welfare of these minors. On the contrary, the evidence which has came on record, clearly indicates that the appellant no.1 has no independent source of income, and his age is about 60 years. If the old person aged about 60 years, having no separate source of income, then how he is going to take care of the minors in future, whether only on the maintenance provided by the respondent or with his some plans, the entire evidence is silent on that point. 12. Considering the evidence, which is discussed now it is necessary to advert to the observations of the Apex Court, as to how to deal in such situation in the matter of Nil Ratan Kundu and another versus Abhijit Kundu, AIR 2009 SC (Supp) 732 wherein it is observed by the Apex Court in para no.61 and 62 as, “it is not the ‘negative test’ that the father is not ‘unfit’ or disqualified to have custody of his son/daughter is relevant but the ‘positive test’ that such custody would be in the welfare of the minor which is material and it is on that basis that the Court should exercise the power to grant or refuse custody of minor in favour of father, mother or any other guardian.” It is further observed by the Apex Court that while deciding the question about the proper custody of the minor child, paramount 9 First appeal No.767 of 2011 consideration is welfare of the child. It is specifically observed that, “in deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a humane problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parents patriae jurisdiction and is expected, nay bound, to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest the court as to what is conducive to the welfare of the minor. “ 13. In the light of these observations and on perusal of the record, the fact remains that the respondent/applicant before the Lower 10 First appeal No.767 of 2011 Court is in Government Service. The record produced further shows that he has already applied for his transfer from Soygaon to Aurangabad. He is already transferred as a Clerk in the Court at Aurangabad. One may take a judicial note that all the requisite educational facilities are available at Aurangabad. As against this, there is nothing on record to show that financial condition of appellant no.1 is sound to bring up the child and is capable to give them well education facilities, which the respondent/natural father can easily provide. Further the case required to be considered from another angle also. At the time of incident, the minors were of 2 and 4 years old. At that time, the minors were not capable to understand what is good or bad, but much is depend upon the atmosphere, the surrounding around them, which may give an impact on their mind. The observations of the learned Lower Court that during the proceeding pending before the Lower Court, the minors were produced in the chamber of the Presiding Officer and they have shown their preference to live with their grand-parents instead of respondent. Here this Court can take a judicial note of the fact that a child of 2 and 4 years, who are not capable to take their own food at their own even though served or placed before them, in each and every aspect of life, they are dependent on somebody else and if such minors were produced and questioned about their welfare, then how it can be supposed that they can think over their welfare, but they can only state, what they were tutored. If the custody of the minors, in such situation, handed over to the appellant no.1, who is already 11 First appeal No.767 of 2011 in pain because he had lost his daughter, then possibility can not be rulled out that the mind of the minors will be developed from the angle that their father is the murderer of their mother, which is not safe for the welfare of the minors and particularly when the respondent is the father and obviously natural guardian of these minors. On perusal of the judgment of the Lower Court, it reveals that while allowing the application, the learned Lower Court has considered the evidence from all the possible views and granted the application. Considering the view taken by the learned Lower Court in the light of the observations of this Court discussed in above paragraph, I do not feel that any interference is required at the hands of this Court. In the light of this, finding needs to be recorded to point no.1 in the negative. 14. Finding to point no.2 : As the negative finding is recorded to point no.1, then no interference is required in the order impugned. In the substance, appeal sans any merits, stands dismissed. (A.V.POTDAR, J.) khs/DEC.2011/fa767-11