A #1 3‘? HIeH COURT OF CHHAmseARH: QILAsPUR .3. HON'BLE SHRI Av. UMAR 5H VAsTAVA \ \ MISCELLANEOUS APPEAL NO.1113 OE 2004 \ \ ‘ ‘ i ShriAbhay Tiwari,counsalfor The wcuant Shri Alok Bakshi, CounSe' for respondenfs No. 1 & 2. None for respondent No.3. K \ “an? : Non-applican'r No. 3‘ Sm‘r Neera Bni, - aged 38 years, \ W/o Shri KK.‘/nduv. \ \ R/o. near the house of Sm'r ‘ Ramoufin Veram (lcdhi), 5ikola}\ \ l" ahead 1'0 Pram Nagar, “Bhim Nagar“, Durg. u ‘ l \ R&ndems: 1) Shri KK ‘ladnv, S/a. Law Dileshwar Pmsad Applicant Yadnv, aged abou‘r 47 years, ‘ ‘ oowpafion-Addwioml Assismn'r . Claseu-I, Elzc'h-icify Board, Durg R/o. Kala Badi, NanrTrilochm Ba! Mnndir, Durg, Tahsil and Distria burg (c5). Non-applicant No.1 Praneet Kumar yodav, S/o KK Yadnv, aged about 13 yam-s, 1hrough guardian Shri K.K. Vadav, R/o Kala Badi. Near Trilochan Ba! Mandir, Durg, Tohsil and Dish‘icf Durg (C6). Non-applicant No.2 3) \Ku. Smjetu Yodav, D/o KK Yadav, aged abou'r 12 yaars, mrough ‘ guardian mo‘rher Smt Nara Bai,‘R/o. ‘ near fhe house of 5m Ramoufin Veram (lo&li),: 5ikola; ahead ‘ro Pram Nagar, “Bhim " Nagar'", burg. ORDER r (Dated 13”‘ January zoos) This appeal has been directed against 'the order dnfed \ 18/10/2004 passed by VE Addifioml Distric'r Judge (FTC) burg, in M.J.c.No.130/2oo4 whereby ma application filed by respondent/applieanf K.K.Yndav for cusfody of non-applicanf No.2 has been u " » allowéd wi'rh a direéfion 1’0 fhe appzilan‘r 1'0 deliVer . non-applicant No.2 Kum Srujefa Yodav info cusrody of applioon'r/responden'r No.1. V I . - g) Facts admi'H‘ed are *hat respondent/applionnf KK. Yadav Is fhe fa'l'her- of Pmnee‘r Kumar Vaduv and his mo‘rhcr- Is oppellom Smf. Neem Bai who lef+ 1he house of KK Yadav olong vv‘nh her son-Praneef Kumar Yadav and daughfer-Snuafn Yadnv md storied living sepamfely. I X I I '35 guardmn and seeking custody of his bo‘l’h duldren sinfmg 'Hmf Prmu'l' gum.- yadav and smjem yadav were born on 30.04.1939' and ,7 8.10.1990 respectively ou'r of micif relo'rion wi‘H'I Smf Neem Boi Sm‘r Neem Ba: was hvmg WI‘fh KK Yodav along wrrh bo1h fhe chldren On 19 04 2002 dae leff ‘rhe house In his absence along mfh bo‘l'h 'l'he d'nldren Presenfly $e Is lwmg of Kasurdlh burg She has no means of livelihood and Is unable 'lo malnl'am bol'h her chtldren Therefor J ¢ 1 ‘ ‘ KK Yndav filed an opphooflon for oppom'rmm' of “vi e § she flied an apphctmon under Secfnon 125 of the Cr P C m me Court of Judicial Mngisfrme Fir-sf CI s ,af thai fime Prmeet Kumar Yadnv was studying in Ckns 8"' and Ku Smjefa Yadav‘ was studying in Ciass iT’”. Respondeni’ KK Ywnv being fniher of fhe childrzn, can \Take cure of his bofh 1h: children: During pendency of me applica'rion, Prmeef Kumar aiieging 'Hmf Sm? Neem Bai is iiving in adulnry, leff her house and star-12d living with his faiher KK Yadav. Thu appiicafion was oFpBwd by Sm'r. Neem Bni, and her children. In fheir reply 'lhey sinful 'l'haf both +he children +ool< bir‘rh ds a ream of lcgi'rimn‘le mari'lal relation KK Vndav himself fhrew her from his house Therefore she filed on applica‘hon for malnfenance under Section 125 of the Cr.P.C. Bo'lh ihe children ore minors and wani- 1*o live wilh fheir mofher. i i i 4) in support of 'rheir mqe KK Yodav himself and his son Praneef Kumor Yndav were examined +0 prove 1he case and in rebuffal non-applican‘r Sm‘i' Neera Boi examined herself and her daugh'rer Srujeia. Learned frial Courf offer appreciating fhe evidence held +ha'r 'rhe reason for lehving fhe house of KK Yndov is on accoun'l' of immoral conduc'r of slut Neem Bai which cauwd iansion and dispuie i< i< vadav is natural guardim of bo'i'h The children and in comparison to appellanf/non-applicant No 3 Sm? Neera Bai fhe welfare of boih fhe minor children can be main-rained/irfhis aisi'ody Bofh ‘lhe pnrhes adduced documentary and oral evidence ivi 5) Learnedcounsel forrfhe appellanf con'l’ended Thaf in 'the ’prolceeding under Secfion 125 of ‘Hk Cr.P.C., The Cour? of Judicial Magis-rmfe Fir-st Clrms has held 'Smt Near-n Bai as wife oi KK Yaduv: Pmnee'r. Kumar Yadav and Sruje'fa Yndav as fheir legi'rimafe‘ childreri. However, disallowed mainfamnoe 1’0 Smt Nam Bai on 'I'he ground 'Hmr due has willfully deserfed her husband In revision filed by KK. Vadav ‘l'he gessions Cour'r up—held 1he order passed by ihe lJudIciol Magis'rra're Firsf Class To avoid malnienmce To wife and lchildren applica‘hon for gran'l' of mmn'ienance under Section 125 of 1'he Cr P C has been opposed on various false allegaflons by KK Vadav Financial capacrry alone is no? aifficien'l’ To decide welfare of The l . . . , J c:hildren 'ThaT Too againsT Their consenT. Per contra, learned counsel V for The respondenTs No. 1 and 2 argued ThaT during pendency of The applioa'hon PmneeT Kumar Yadav lefT his moThers place and has Joined The company of his faTher Ku SruJeTa Yadav Is a minor girl aged abouT 13 14 years and is unable To Tender valid consenT f Therefore her willingness has no force SmT Neera Bai has no properTy and means of livelihood AlThough The conTenTIon of KK Vadav in Magisterial CourT regarding adulTery has been dispelled yeT, she is leading immoral life Therefore for The welfare of Ku Sruje‘ia ' Yadav learned Trial Court righTly passed The order of cusTody and f guardianship in favour of applicanT KK Yadav In supporT of his; argumenT he relied upon The JudgmenTs rendered by The Apex CourT in Dr M5, Veena m y: Vang» Mgr m, reporTed ‘ V J / V l iiv m ¢ 5 l’} ' z v ’; AIR 1982 SC 792 and Mrs Elizabuth Dinshqw Vs Anand iA, Dinshaw and When wor‘red in AIR 1987 5C 3. 6) Section 17 of the Guardians and Wards Acf 1890 reads as balow :- "Maffers fa be considered by fhe Cow in wainfing gum'dian — (I) In winfity or declariry #1egua'dian of a minor, fhe Cm wall, suhjecf fa fhe mvisim of fhis secfion,’ be guided W urbaf, Wavy Mi!) file lav fa abidl ifte minor is abject appears in Me circunsfmces. f0 be far fhe welfare of fhe minor. ‘ (2) In comidority whaf will be for fhe welfare of fire minor, fhe cow diai/ have rega'd fo fhe go, sex md rehyion of fhe minor, the dm'acier and cqaaa’fy of ihe proposed gua'dian and his newnm of kin fa flie minor, the wishes, if my, of a deceased parent and am/ exisfiry or previois relafions of fhe proposed gumdian wifh the minor orhis properfy (3)If minor is old Maw fo form an infe/Iigenf mferenoe, rho cow mw cowider flnripreference. (4) l’m} (5) 771e €owf $01] nof ¢poinf oradecla'o anyperson fo be agurdm'n gainsthis will. ' K" Ahhough for cus‘rody and guardianship paramounf conSIder-a'hon is 'rhe welfare of mmor' bu? his preference if e is old h enough and m'l'elllgen'r Is also required to be re$ected 5e? aparf +he Courf has 'ro consider The age, sex, religion oopacrty oharocfer of ‘ ‘ 1he propowrl guardian and his nearness umh fhe minor Learned Cour‘r 7) i 1 k i \ i i ‘ t i @" {1 below in deciding *he case did not care 1'0 weigh‘i' The preference given {by minor and i'r appears Thu-I" the Court is influenced with the con‘i'en'rion 'rha'r “the moiher Sm'r. Neera Bai is lending an immoral life. 8) 50 far as adulfery or immoral life led by 5min Neera Bai is concerned, respondenf/applioonf KK Yadav did not specifically dlead in his péfi‘l’ion abou'r adul'rery or immoral life of his wife. I'l‘ is no'r dispufed during ‘ihe argumenf 'rha‘r fhe question of adul'l'ery has i l already been raised in the Criminal Courf by KK Yadav and line same was dispelled _by the Court of Judicial Magistrate. In the instant g case, for want of $ecific pleading neither the evidence regarding i iadultery or immoral life could have been allowed to adduce nor i decision on that point could have been passed by the Court. Set i apart, in the instant ms? no independent evidence to prove or rebut i the immoral character of mother Neera Bai has been adduced by 1 any'of the parties. i 9) Praneet Vadav when left the custody of his mother and t started living with his father, has started saying‘that Smt. Neera Bai is living in adultery and has deposed against her on 01.05.2004. His. i evidence has been specifically contradicted by Neera Bai (NAW-I) l i l and her daughter Sruiem Yadav (NAW—Z), who lives with her mother. i i i i i m‘‘ v-\ Therefore, without pleading and when the evidence of Praneet Yadav has been conmdiciéd by his moiher Nee‘m-aai mi sism smjm Vadav, no opinion could have been formed ‘to‘ the effect that she is i e!4» _ J leading immoral life. Se‘l' apart Criminal Cour? has nlraady decided l 1 ‘rhe quasi-ion and had dispelled the same. 10) Ku 5mje1n Yadav was Bom on 26.10.90. Her evidence has bun recnrded on 01052004 by that 'hme, she was aged more Than 13 years who declared her preference 1ha'r #le wanfs 1’0 Iwe wrth her mo‘iher. During pendency of +he appeal, on 25.02.2005 also in person, parties were preseni’ bu? Ku. 5ruje1a Yadav did noi’ change her l ‘preferenae On 25 02 2005 she was aged more than 14 years If is no'r disputed that she Is studying When the application was filed In i the year 2003, die was studying in Class 7'“ and when her evidence was recorded, certainly she must be reading in higher classes. l Therefore, the girl aged about 13 - 14 years who is also edurated who intelligently gave statement in the Court is certainly old enough to declare her preference. Therefore, it is necessary that. the Court before passing any order should have considered her preference, which learned Court below failed to do. Ku. Srujeta Vadav is a girl. She is living with her mother, who is at present taking care of her. Her age is between 13 to 15 years. This is the age when physical and biological changes appear and a female sex requires companion of the same sex. In this age that too in Indian culture it isnot ggssible to share her difficulty by her father or hrother 11) 12) Financiul weakness alone has no impacf 1’0 da‘m'mine 'rhe suimbility of guardian. If for 1h: sake of considerafion, i? may be accepted fhaf Smt Neera Bai has no means of livelihood;.in thn‘r case, ‘ under me law, for me welfare of children, famar of me children can be compelled fo provide suifoblefomounf. In Hue instonf case, by order of fhe Magislerial Cour-t, KK Yodav ls paying Rs.1500/- as mainlenonce +0 Ku Sruje‘ra Yodav Kum Sruje‘ra Yodav in her cross- emmmafion clearly stated 'l-l-iaf whafever amoun'r Is allowed by inc l Courf fheir expemes ore being mef wifh 'ihat Only a1- The flme of admission fees amoun'r of Rs 300/- is fo be paid and of fhe hme of Eexaminafion i a aim of Rs35/- is being paid Therefore from l'ier l sfafemenf ri is eViden'r fhaf fhey an keeping well by ‘rl-ie amoun'r paid by respondent/applicant KK Yodav fowards mainfenanoe fo Ku Srujefa Yadav. l13) KK Vndav in his evidence deposed fha'r sue kepf lSiii‘l. Neera Bai. Earlier to ‘lhaf, dwe had Three or four husbands. She is characfer-less. Bu? in The insfanf case, all these allega'lios have not been proved Therefore if is clear fhaf KK Yadav is making false charges nof only against his wife bu'i also against his son and daugh'rer by declaringfhem fo be illegifimafe. 14) I1- is evidenf that alfhough Kl< Yodav is fafher of Ku. Srujefu Yadav, bu'r he wifhouf any proof is levelling scandalous charges i agains'r Sm'r Neem Bai, mo‘lher of Ku. Srujefa Vadav and also declaring Ku. 5mje+a Vadav his iileghimm da..gh+ér. Ku. smjem Vadav who aged abou+ 13 +0 15 years, has ‘ro face physical and biolagiaal changes, ifherefore, a1 1his juncture, fa‘l'her KK Vadav ‘oannol §1are 1he difficulties and feelings of Ku. Sruje'ra Yadnv. When Sm'i'. Neera Bai left fhe house of KK. Yadav along wi1’h her son and daughter, he did no? care fo maintainfhem. When 5m'r Neera Bai fiied an application l t , A i V iunder Secfion 125 of fhe Cr.P.C., compelling him for main-temce, fheJ-eaffer, only in compliance of 1he order of 1he Court he s'rarfed X . l paying maintenance To Ku. Sruje‘ta Yodav. If is also eviden‘l' fha‘r ‘ro crea‘re pressure on Sim. Neera Bai 'ro forbid ihe claim of maimenance, i +his applicai’ion appears 'ro have been filed 5° *ha‘i’ i" m cus'rddy °f f Ku. Srujeia Yadav is handed over fo him, he will be relieved from a paying maintenance to her. 15) Taking info consideration 'the character of KK Yadav, his sex and the intelligent preference given by Ku. Srujeta YGdGV. ha m5 not sJitable in comparison to Smt Neera Bai, who is mother .of Kn. : Srujeta Yadav for appointment of guardian. Smt. Neera Bai is mother of Kum Srujeta yadav and is living with, her since her birth’till npw Le. around 14~1§_~y\ears. It has not been proved that she is living E in adultery or is leading‘an immoral life. At this juncture, die is the best companion to her daughter Ku. Srujeta Vadav, who has to face physical and biological chmges. So for capacity is concerned, die is. . I gi-eceiving main'renanae for Ku.‘ Srujefa Vadav. In case any more aEmounf for welfare ofk 'H'Ie childrcn is required, sha can recover the Jsame from KK Yodav by legal process. Therefore, for fhe we!fore of \ . me child Sm'r. Neera Bai, in whose cusrody Ku. Srujefa Vadav is iiving is perfectly suitable in comparison fo applican? K.K. Yadav. L 16) I In 'rhe resui‘r, ~I+ie appeal succeeds. The order passed by the trial Cour? is se‘r aside. u ‘ I * in) cos+ of nus appeal shun be paid +0 me appznam by m p z, l { ‘ i Sd/- ondem No. 1. ”SP ‘ l V.K. Shrivastava ‘ ii, W i i ii V i Judge ' padma