® WNNK. BBFORE THE HON»BLEHIGHCOURT OF CHATTISGARH AT BILASPUR ^l. F.A. N0. APPELLANTS (Applicants in the j^mrt below) ....•••::'^^- ?wi^v-'u ..-^ ^^°" ^c^^ l^- /2008 ^iO^ L.- Niranjan Singh Huda, S/o Shri Jeevan Singh Huda, Aged about 67 years Smt.Kamaljeet Huda, W/o Niranjan Singh Huda, Aged about 59 years. (Both residents of 100 Anand Nagar, Khandwa, Distt. Khandwa (Earlier it was 14 Shakun Nagar, Anand Nagar, Khandwa, Distt. Khandwa (M.P.) VERSUS 1—t1 RESPONDENTS ^Non-applicants in ^the court below) y Tavinder Pal Singh Bhatia, S/o Shri Harbansh Singh Bhatia, Aged about 35 years, R/o Haji Chaal, Tikrapara Chowk, Dayalband, Bilaspur (C.G.) Pritam . Singh Sahgal, S/o Not ^ Known, Aged about 52 years, R/o Gondpara, BUaspur, ^resently R/o In the R/o^^in§|fPal Singh, Dayalband, Bilaspur (C.G.) ^ ^-^" FIRST APPEAL UNDER SECTION 19 (2) OF FAMILY COURT ACT 1984 <^ fz^. s HIGH COVRT OF CHHATTISGARH AT BILASPUR DB: Hon'UeSairiLM.OuddusL Hon'bleSairi Prashant Kumar MNu-a. JJ. F.A.M. No. 15/2008 Niranjan SSn^i Huda mid another. Versus' Tavinder Pal Sin^i Bhatia and anothw. JUDGMENT FOR CONSmERATION Sd/- prashantKumarMisbra Judge „ Hon'bleShri LM. Ouddusi. J. J A^<-^ ^Sr' v-'v^ Postfort^ -03-2011 Sd//- Prashant Kumar Mishra Judge (/1Vv.^ '%!^;^ ^. HIGH COURT OF CHHATTISGARH AT BILASPIIR DB: Hon'Me Shri LM. Ouddusi Hon*I APPELLANTS F.A.M. No. 15/2008 Niranjan Singh HudaandanoAer Versus RESPONDENTS : Tavinder Pal Singh Bhatfaaiid another Shri P.R. Patankar, counsel for the appellants. Shri U.K. Singh Chaodel, counsel for Ae respondente. JUDGEMENT (1&M2011) X. Per Prashant Knmar Mishra, J. This appeal under Section 19 (1) ofthe Family Courts Aet, 1984 has been preferred by the grandparente of minpr eNld Harmanpreet Kaur @ Khusi. The leahied Family Court has re|ected their prayer for custody ofthe said minor child. (2) Facts ofthe case, briefly stated, are tfaat the marriage of Smt. Indrajeet Kaur (daughter of the appeilajxks) was solemnized wiA respondent No.l Tavinder Pal Singh Bhatia. The minor child Harmanprcet Kaur @ Khusi (hereinaflser referred to as 'the efaild') was bom on 14/03/2004 out ofthe wedlock. The motherofthe child died of bum injuries on 19/07/2005 and for this a crimiwl case under Section 304 (B) and 498-A of IPC was regtstared against the respondents and after trial they have been convicted smd senteiced |to undergo RI for seven years. RespondeatNo.1 w4ipisthefather.Qf "^. •^^: :^1J. -2- L- the child has been released on bail by an order passed by this Cottrt in the cnminal appeal on 31/07/2007. (3) The appellants are Ihe mirtemal grawlpaTeiiits^Nittta^BiQyf the child. They are resident of Khandwa in tfae Stete ofM.P. They prcferred tfae subject application under Seetion, 7 and K) <^ ^ie Guardians and Wards Act, 1890 (hereinafter referred to as 'the Act') 1890 on the submission that Ifae respondent No.l is in Gustody and during her life time their deceased daughter lm<t desn'ed th^^iey should take care of the child. Appellant No.l is a retired offieer from the department ofrevenue and is able to nMHntaittIhe ehild. It was stated m the application that the child is in the custody of respondentNo.2 Pritam Singh Sahgel. (4) The respondente submitted th^r reply to tfae applic^on and stated Aat he has been released on b^il by ^e Hon'ble Migh Court and he being the natural guaidian/feltier ofthe chfld is entitied t0 maintam his cNld and Ifae applicadon preferred by the appellai|its deserves to be rejected being not mamtainable. (5) The leamed Family Court has t^eeted the ^plication after finding that fhe wel&re ofthe cNld demands that she should remain with her father who is taking care ofher and is pres^itly studyingin the Maharshi Vidya Mandir School. It was observed that Ae appellants ase aged persons and that q?pellant No.l has admit^d that he is suffering from high blood pressure. . .^' / .-^^^' iy"ih^% j J l '"" 7,1 'W' J^/ -^K'sw-^'^^' ' (^ - 3- ^ (6) Leamed counsel for the appeUaiAs has <u%ued 1fa|| ifivtew Qif the fact that the respondentNo.l has been conv^ted ^nd swt^ed to undei^o RI for sev®nyears, the custody of tfie ehild; shqgttl^fbe handed over to the a^wllaats because in Ae event the Gonviction is maintamed by tfie Hon'ble High Court fhe child wiM ^e left unatteaided aad may not be properiy taten eare o£ On Ae ^er hand, leamed counsel fbr fbe res^ondent to s^bina^^^^^^^^ respondent No.l bemg the nateml guardi^i/father of tfie child is fully entitled in law to maintain his child and in any ca^? when the father is alive and is tafcing care ofAe child, the custody cannot b@ handed cwer to tfae matemal grandpareiits w^io SPB ^d s^eeL , (7) In course of hearing ^iis Court heard Ihe appellaiits and also interacted wiA tfae girl child who is presently aged abQut seyen years. When her wishes were asked, she desiredthat she wisfees to Hve with her father who is extremely attached to faer an4 is talang proper care ofher. (8) Law relating to principles govemmg Ifae eustody pfmmor child has been coasidered by Ifae Hoo'Ne Supreme Ctairt in senes ofjudgments, few ofwhich are consVered herein uader: "1. The Apex Court in case ofS«ine<Bi»Nag|al—|^Staite, of DdM and odiers reported in 2000 (9) SCC 745 wfiile mterpreting the proviso to Section 6 (a) ofthe A<^ of 1956, held that deeision on the question ofaistody should be niade bearing in mind tfae welfare oftfae cMld - It cannot jte made ^ ^- 4-- •r simply on the basis ofright ^ ihQpax^e^w^wj^lsw^as^ observed in pam 4 and 5 oflfaejudgment as undCT:- "4. Even at this stage, Sfari D.D. Thakur, A^l||tmed counsel fiw the petitioner laid great emphasttsjtt ^,;we should not sdiirk our task at least with respe^t to Ae Umited question of o^deriag restoration of tfae^u$tody of the minor child to the mother. He sujbmitledjdi^t though Section 6 ofthe Act rec^nises guardiansh^) of the minor child with botii Ae parents, ©cclusiverightpf the mother is recognised in respeci ofthe custody ofa minor child below five years. This legislative recogmtion ofthe matemal instinct ^iould behonowed by us by treating the custody of tfae child with the fatiier as illegal and the custody should be hand^d over to the mother pending the proeeedings suggested by us earlier in the course ofthis ordw. 5. In deciding sueh aquestion, whst we have to bear in mind is ttie welfare ofthe minor child and not deeide such a question merely based uppn tiie rights of tfae parties under tiie law. In the irfeadings and ttie material placed before us, we cannot say that Aere is a»y,nwch less clinching, materied to show Aat Ifae wel&re dFAe minor child is at peril and calls for an interfeFNice. The trauma that Ifae child is likely to experience in 1he event ofchange ofsuch custody, pea4ing(M-oceedings foefore a court ofcompetentjurisdiction, will have to be borae in mind. We are consdous ofthe ^ni^basis taid by the j leamed counsel for the petitioner that Ae lap of a mother is the natuial cradle where tfae safety and welfare of the child ean be assuyed and Aere is ao substitute for the same, but still we feel that at this ^ stage ofthe proceedings it would not be ^propnate fer •-"•^,,^.-...,..». 'i^ ^t^ -J? ^- us to interfere in the matter and leave all tn^rs^risitig in the case to be decided by an q>propriat|s forom irrespectfve ofwhatever we have stated in the cour^pf this oirder. Even though we have cteatt wth fhe contentions raised by Shri D.D. Thakur as to ^"aat of interim custody to the petitioner, we stoould ncw| be understood as having held that a petition would Ue under Article 32 for grant of (aistody of a mmorlchiM; we refrain firom examiniag or deciding the same." 2. The Hon'ble Apex Court in the case ©fElfaabetfa Dinshaw (Smt.) -v- Arvand M. Dinsiiaw uid anodier reported in 1987 (1) SCC 42 while dealing with Sectioo 7 and 17 ofthe Act ofof 1890 has held that when a question arises before a court pertaining to custody of a minpr ehilid, the matter has to be decided not on considerations of fhe legal rights ofthe parties but on tfae sole and ppedominant critCTion of what would best serve tfie interait at^ welfiire of the mmor. 3. The Hon'ble Apex Court in ease of <^i|al! Kippor (Smt) -v- Rajeev Bayal rqwrted in 2009 (7) SCC 322 relying upon the two judgments referred to hereinabove h?s held ia para 26 that "ordinarily, uoder the Ouardian ®id Wards Act, tfae natural guardians ofthe child bave the rightto the custody ofthe child, but that right is not absolute and Ae courts are expeeted to give paramwint eonsideration to the welfere ofthe minor child. The child has remaiaed wteh tfae appellant grandmother for a long time and is growing up well in an atmosphere which is conduciveto its giwvth.It may not be proper at this stage for diverting tfae enwromnent t®which the cUld is used to. Th^-efore, it is desirable to allow the appellaat to retain the custodyof^ie eUld." r^ ^ i ^^ ^^^.^' 4. The Supreme Court in case of M<rfuun Kianar Rayan^ -v- Komal Mohan Rayana reported in 2010 (5) SCQ 657, Gaurav Nagpal -v- Sumedha Na^al repwted in 2009 (1) SCC 42, Afliar Hussain -v- Syed Siraj Ahmed and ofliers reported in 2010 (2) SCC 654 have also held that w^l&re of the child is fhe sole and single yardstick to assess comparative merit oftihe paities contesttng for guardianshtp. 5. The Hon'ble Supreme Court in ease o£ Mausaiiui Moitra Ganguli -v- Jayant GanguB reported in 2008 (7) SCC 673 has observed in para 19 to 23 as under:- "19. The principles oflaw in relatfon to the eustody of a minor child are well settfed. It is trite'that while detenniamg the question as to which par^it the care and control of a cUld should be committed, the jfirst and Ifae paramount consideratitMi is Ae welfare and interest of Ae child and not fh®rights of the parents under a statute. Indubitably, the provisions of law pertaining to fhe eustody ofachild contained m eifher tfae Guariians and Wards Act, 1890 (Seetion 17) or tfae Hindu Minority and Guardianship Act, 1.956 (Seetion 13) also hold out the WeIfeTe of fhe ehild as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate tfae vital &ctor ofthe welfere ofthe minor. 20. The question of wetfare of tfae minor chiM faas again to be coasidered in Ihe backgiound of tiie I relevant fects and circumstances. Each Gase has to be decided on its own facts and other decided aises caa 1 haTdly serve as binding preced^rts inso&r as Ihe &ctual aspecte of the case are concera«l. It is, no ^doubt, troe tfaat father is presumed by fhe statutes to be ^^w"1^^'^ I •w'3% l \sy .-? ^ ^ better suited to look after the welfeie pfthejcAiiyi, themg normally the working member mid head oftbei ^unily, yet in each case the court has to see priniffl'i^ to the wel&re oftiie child in determimng the questionofhis or her custody. Better ISnancial resowees of either of the parents or Ifaeir love for the ©faildmay be <Mie pflhe relevant considerations but caanot be the sole determining faetor for tfie custody of tfae child. It is here that a heavy duty is east on tfae court to exercise tts judicial discretion judiciously in the background of ail the relevant facts and cireumstences, bearing in miad the wel&re offhe chtld as tfie pffl-amoimt consid^ation. 21. In Rosy Jacob v. Jacob A. Chalirfflniakkal reported in (1973) 1 SCC 840) a tfaree-Judge Bench of tfais Court in a ratfaer curt language had observed that: 1125. ... The children are not mere ckattels: aor are they mere playthings for their ,parCTits. Absolute right ofparents av^t Ifce deistiaies and the Uves of their childrai has, in Ae modem changed soeial conditions, yielded tp the considerations oftiirir wdlfare as hunuMi beings so tfaat they may grow up in a normal balanced manner to be usefal members ofthe soeiety aiul the guardian court in case of a dispute betweea tfae mother and fhe fatfier, is espected to strike a just and propCT balance betweea tfie requirements of wel&re of ihe minor ehiyren and the rights of their respective parents over them. 22. ]&ff<dsbttry'sLmvsofE»^md(4^Edn.,Vol.J3) the law pertaining to the custody and mainteoance pf w»^ -T- .., ,f % ^- ^ children faas been suceinctfy sta^ in thejbUo>w^ terms: "809. Principles as to custexfy wtdl upbflJig^ig of minors.- Where in any proeeedings be€<)re any court, tfae custody or upbringing ofammQris in question, tfae court, in deciding thstt gi$gstion, must regard the wel&re oflfae mmor as lt3iej5i"st and panunount consideration, and must not take into consideration whether fiom any other poiat ofview the claim oftfae fetfaer in respectofsueh custody or upbringing is superior to tiiat of the mother, or Ihe claim ofthe motfaer is ^upenor to that ofthe fether. In relatioo to the custody w upbringing of a minor, a moAer has the same rights and aulfaority as the law allows to a fetfaer, and Ihe rights and autfaority ofmother and fether are equal and are exercisable by eitfaer witfiout tfae otfaer." 23. Having bestowed our aiKdous cpnsi^eTatipt^ to the material on record and the observations made by the courts below, we are oflhe view tfaat in Itoepreseait case tfaere is no ground to upset theju<^mait aad order of tfae Htgh Court. There is nothing pn record to suggest that Ae welfere oftfaechildis maoy way peril in the hands oftiie fatfaer. In our opinion, tfie stability and security ofthe child is also an ©ssentialingredient for a fiill development ofchild's telent and persoimlity. As noted above, the appellant is a teacher, now employed in a school at Panipal, where sfae had shifted firom Chandigarh some time back. Earlier, she wa? teaching in some school at Calcutte. Adnrittedly s&e is living all alone. Except for a veiy short duratioa when ^ 7 he was with tfae appellant, Master Sat^jwt h^ toen Uving and studying in Allahabad in a good scho^l and is stated to have Ns small group of fiiendstiiei'e. At Panipat, it would be an eatirely new ©nvironmeatfor him as compaTed to Allahabad." 6. In Smt. Surinder-Kaiir Sandhu-v^ Harteix Sfeidi Sandhu and anodier repoited in 1984 (3) SC©698, Ae Supreme Court has h^d that Section 6 oftiie Hindti Mtperity and Guardianship Act, 1956 constitutes Ae father as fhe natural guardian of a minor son. But thed provisaon caaaot supersaie the paramount eonsideration as to what is conducive to the wel&re ofthe minor. 7. In Nfl Ratan Kundu aml aaother -v- AM4jit^undu reported in 2008 (9) SCC 413 Ae Hon'bl®Supreme Comt bas held in para 52,57 and 58 ofitsjud^nent as under:" "Prinwiples govemii^ custody <rfnunpr chUdren 52. In our judgment, Ifae law relating to eustody ofa child is fairly well-settled aad it is Ais: in deeiding a difficult and complex question as to th<e custody of a minor, a Gourt of law should keep in miad tiie relevant statutes and tfie rights iBowing therefi'om. But suqh cases cannot be decided solely by interpreting legal provisions. It is a humane problem and is requtrcd to be solved with human touch. A Court wAile dealmg with custody cases, is neitiier bound by statutes nor by 1 strict 'rules of evidence or procedure nor by precedents. In selecting proper guardian ofa minor, fhe paNunount consideration should be tiie welfare and well-being of the child. In selecting a guardan, Ihe Court is exercising parens pateiw junsdictioni and is r 'n ^/0 < expected, nay bound, to give due weight to^a ^litld's ordinary eomfort, contentment, healtfa, edy<;ation, intellectual development and j&v©urablesuiTpyiGKluigs. Butover and abovephysicaletMnfor^mc^^a^ ethical'values cannot be ignored. They iffe eqwlly, or we may say, even more important, essential and indispensable Gonsiderations. If the minor is old enough to form an intelligent preference or judgment, Ihe Court must eonsider such pTeSerenee as weM, though Ihe final decisi<»should rest with tfae Court as to what is conducive to tfae welfare ofthe minor. 57. In our opinion, in sueh cases, it is not the 'negative test' tliat tfae father is n<A 'unfit' or disqualified to have custody ofhis soo/daughter that is relevant but the 'positive test' that such custody would be in Ifae welfare ofthe minca' which is mataial and it is on tiiat basis that Ifae Court should exercise tihie power to grant or refuse custody ofa minor in favour of father, tfie mother or any other guardian. 58. Though tfais Court iit Resy Jac<^> fsuoray Iield that childrea are not mere Ghattels nor toys, the trial Court directed handing over cust<xly of Antariksh imm^liately* by roaaovmg him from the custody of his matemal grand-parents. Siiniliuly, tfae High Court, which had stayed Ihe order oftfae trial Court duriBg Ihe pendency ofapperil, ordered hatKling owr Antariksli to his father within twenly four hows positively. We may only state tiiat a child is not 'property' or 'commwiity'. To repeat, issues relating to ©ustodyof minore aad tender-aged ehildr^i have to be haadted with lov^ -ll- ^ afiEecrion, sentimeats aiid by applyang human |(m;h tp the ptob\em. (9) From the law laid down by the Hon?ble Suprenie €ourtm Ae above refenred judgments, it would be clear fhat while de<?i|ling the question regarding custody of minor cNld, the pwamoiurt consideration is the welfare of the minor and that alone showld weigh wilh the Court while deciding the question aad farfhcsr that the wishes ofthe minor should be ascertained by tfae Court before deciding as to whom custody should be given. (10) In course ofintCTaction widi the ehfld we have gatftieredl that the child is quite intelligent and was re^onding to the discu^ion quite fi^inkly. She has desired, in no uncCTtain tenna, tiiat she is happy with her fafher and that she has absolutely no problem in her well bemg or the studies while she ranains with her &1ier. InJ^ct the child &ils to recognize her grandpareats as she has aeyer !|e®npr iwed OT interacted with tfaem. She is pr^entlystudyiog-in class-2 in a reputed school at Bilaspur. (11) In view oftiie above, this Cowrt is ofthe considered opmi&n that in the present case, tfae welfare of the child woyM be l^st protected and it warrants that rfie shouM remain with her fether. Tte &ct that tiie &ther has been convicted and presently his ^qp@al is pending before High Court would not dis-entitle him to keep his daughter witfi him, if otfaenvise the welfare of fhe daughter lies in residing with her fether. Here, it can iKrt be forgotten jtfiat tfae .-/2- appeUants are aged and the child has never resicted wtfh theffi m tite past. (12) We do not find any substaace in the aype^ wl^jt^V^ Family Court has not committed any error in rejecttng the appKcation presented by the appellants under Section 6 and 7 ofAe Act, 1890. (13) Consequently, tfie appeal Nls and is hereby dismissed. 8d/- I. M. Quddusi Judge Sd//- Prashant Kumar Mishra Judge ^ r •r-