...J ^. \^ IN TBB HOiS'QiE SIQff QOUaT OF OffffATTISSASff ,^^ ^T BIiASPUR. ,,^..^!£w-^ ^•^,^:-f^ ^^%\^.v;^-' ^^•'••*s B'B"JI^'^ SW>1. ':'^.^<'" ^^>@-s^^a])Aro.. Q^wes~ /2Q08. APPELiAST APPLIOMT. 8 On^ &^ Vinod Kumar Bagde <S/Oo £<ate Khushalji Sagde, ^ged about JP years^ Sesident Qf 245/9.A» Ssket Nag&r, BhQpal (M^PJ. VersuQ SESPONDSST s SOS^PPLICMT. Smt^ K&mind alias Yineeto, S^gde y/@» Shri Vinod Kum@,r Bagde, ^ged abaut JJ yc^rs^ resident @/ ffouse ffo»J04f Arys ff&g&r, Durg {C»S»} ^PPSAi UNQSa SBQTIOS t9(f) OF TBE F^MILY QOUBTS ACT, ^984, ASAiysr TffS OSDS8 BATSD 04^07.2008 P4SSSB BY SHai A.K^NIMOSKAS, PaiKCIPAL JUQ9S, F^MIiY COffST^ WSS (C»Gj. HIGH COURT OF CHHATTISGARH : BILASPUR F.A. (M)No. 115 of 2008 Appellant Vinod Kumar Bagde Versus Respondent Smt. Kamini alias Vineeta Bagde 4F^ ^ <. Judgment for consideration. Sd7- SatishK.Agnihotrl Judge Hon'ble Mr. Justice Raieshwar Lal Jhanwar ^)^±1 Sd/- R.L.Jban^ar Judge ^b_ Post the Judgment for delivery on /"' February, 2010 Sd/- c.. HIGH COURT OF CHHATTISGARH : BILASPUR F.A. (M)No. 115 of 2008 Appellant Vinod Kumar Bagde Versus Respondent Smt. Kamini alias Vineeta Bagde APPEAL UNDER SECTION 19 fl) .OF THE FAMILY COURTS ACT, 1984 DB: Hon'ble Shri Satish K. Agnihotri & Hon'ble Shri Justice Rajeshwar Lal Jhanwar, JJ Shri C. R. Sahu, Advocate for the appellant. None for the respondent. J_UDGMENT ( Delivered on this Is' day ofFebruaiy, 2010 ) Per Satish K. Agnihotri J. The instant appeal 'arises from the order dated 4.7/2008, passed by the Principal Judge, Family Court, Durg in MJC (Civil) No. 74/2006, whereby the application filed by the appellant/applicant under Section 25 of the Guardians and Wards Act, 1890 and Section 6 of the Hindu Minority and Guardianship Act, 1956, seeking custody of minor son Vivek.alias Yoshit Bagde, has been rejected. Section 25 of the Guardians and W-ards Act, 1890 ( for short the 'Act, 1890?) reads as under : "25. Title of guardian to custody of ward. - (1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody ofthe guardian. (2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882 ( 10 of 1882). (3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship/' Section 6 of the Hindu Minority and Guardianship Act, 1956 (for short the 'Act, 1956?) reads as under : "6. Natural guardians of a Hindu minor. - The natural guardian of a Hindu minor, in respect df 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; (b) in 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 hermit (vanaprastha) or an ascetic (yati or sanyasi) Explanation. - In this section, the expression "father?\and "mother" do not include a step-father and a step-mother/' Indisputable facts, in brief, are that the niarriage of the appellant and the respondent was solemnized on 5.1.1997 according to the Hindu custom. Within wedlock, a son, namely Vivek alias Yoshit was born on 25.10.1998. The appellant and respondent are living separately and the son is living with his mother/respondent. The case of the appellant/applicant before the trial Court was that he is working on the post of Deputy Director in Geological Survey and 'p^.s-'-s i'.&^.., ^ £-^8?fc| -"/"// /'^_. - ^^. Mining Department. After marriage, the respondent/wife had been living with the appellant/husband till 17.1.2005. The respondent is not a lady of calm and cool mind. Off and on she gets mental disorder. In this sequence, on 29.3.1993 the respondent consumed some poisonous substance. Thus, a criminal case under Section 309 of the Indian Penal Code was initiated against the respondent, wherein on admission of the charge a find 6f Rs. 400/- was imposed in the Court of Judicial Magistrate, First Class, Bhopal. Thereafter, the respondent went to her parental house and got the baby aborted without consent of the appellant. The respondent does not take keen interest in taking care of their son Vivek alias Yoshit. In the year 2004 due to transfer of the appellant to Indore, he kept the respondent and their son Vivek alias Yoshit, in the hou$e of his elder brother at Bhopal. At that time due to abnormal behaviour of the respondent, a report was lodged in the police station Bagwania, Bhopal on 20.1.2005 by the wife of elder brother of the appellant. Being aggrieved, in retaliation, the respondent lodged a false report in the police station against the appellant, his elder brother and wife of elder-brother of the appellant, for the offence under Section 498-A of the I.P.C. Thereafter, the respondent went to her parental house, forcefully taking their son Vivek alias Yoshit. The appellant tried to contact the respondent by various modes and asked her to come to Bhopal or send their son Vivek alias Yoshit but since 21.1.2005 the respondent is living at Durg at her own will along with their son Vivek alias Yoshit. The respondent threatens the appellant for dire consequence that is why the appellant is not in a position to visit Durg to see and meet their son Vivek alias Yoshit. The appellant is a well educated and responsible Govt. officer. Being father, he is the -^- ^. natural guardian of Vivek alias Yoshit and he is fully able to take care of Vivek alias Yoshit. Thus, the custody of Vivek alias Yoshit may be / handed over to the appellant. 6. On the other hand, the respondent/wife categorically denied the allegations made by the appellant. She had filed an application for maintenance wherein the appellant had avoided ser^ice of notice. Ultimately the notice was served through publication in news paper. Even then, when the appellant did not appear, by ex-parte order dated 27.8.2005 the appellant was directed to pay a sum of Rs. 2500/- to his wife/respondent and Rs.' 2000/- to his son Vivek alias Yoshit (total Rs. 4500/-) towards m.aintenance. Instead of complying with the order to pay maintenance, the appellant has filed a case challenging the order dated 27.8.2005. Thus the appellant is negligent in maintaining his wife and son. The respondent is taking complete care in the welfare of Vivek alias Yoshit. The educational avenues are better at Durg and Bhilai than Bhopal. The appellant is having a transferable job thus if the^custody of Vivek alias Yoshit is given to the appellant, the study of Vivek alias Yoshit would be adversely affected. As most of the time of the appellant has been engaged in discharging his official duties, thus the appellant in no case can take care of Vivek alias Yoshit. Vivek alias Yoshit is of 8 years old. His personal care as well as that of his studies may be best taken by her mother/respondent than the appellant/father. The behaviour of the appellant as well as his family members towards the respondent and Vivek alias Yoshit is not good. Somehow, the respondent could escape from Bhopal to Durg in order to save her life. Her son Vivek alias Yoshit got 93% marks in second standard and at present he is studying in third standard in a reputed school at 8. Bhilai. The appellant has a streak of cruelty and of quarrelsome nature. On 18.9.2006 on the date of hearing in the Family Court, when the appellant visited Durg, he tried to commit assault with the brother of the respondent and abused him in Court premises. The physicaland mental condition of the respondent is good. When the deduction of the amount of maintenance was started from the salary of the appellant then with malice the application to get the custody of Vivek alias Yoshit has been filed by the appellant, just to harass the respondent. The application of the appellant has been dismissed by the impugned order dated 4.7.2008, passed by the Principal Judge, Family Court, Durg, in MJC (Civil) No. 74/2006. The Court below has come to the conclusion that Vivek alias Yoshit was neither a necessary nor a proper party in the application filed by the appellant. The appellant has failed to prove that the future of the son Vivek alias Yoshit would be better in the hands ofthe appellant than the respondent. Further, the appellant has failed to prove that the respondent is suffering from mental disorder. The welfare and the future of the son Vivek alias Yoshif would be better in the hand of his mother/respondent than the appellant. We have heard learned counsel appearing for the appellant, perused the pleadings, impugned judgment & order and the original records produced before the Court below. On perusal of the impugned order, it appears that Vivek was heard by the learned Judge and he had expressed his desire to remain with his mother/respondent. Further, cases and counter cases were field by the parties which clearly demonstrate that there are strained relations between the husband and wife. The appellant has tried to establish that the respondent/wife has lodged a complaint against the husband and faniily members but it appears that it was lodged as a counter complaint after the wife of the elder brother of the appellant lodged a complaint in the police station at Bhopal against the respondent. 9. Without going into the merits of the relationship between the parties, the first and foremost requirement in such a case is the welfare of the child, as is evident from the provisions of Section 25 of the Act, 1890 also. It is true that the father is the first natural guardian. If the welfare of the child is not proper in the hands of the father, the guardianship of the ward can be handed over to the mother. 10. The appellant (P.W.l) in his cross-examination has admitted that Vineeta/respondent was taking care of the education of the child along with other children (para 26). Thereafter, it was stated that she was not taking care but there is no allegation that the studies of the child had suffered at any time. It was further admitted by the appellant in his cross-examination that his son when he was with the mother always obtains 95 to 98% marks but when he was living with him he topped in the list. 11. Thomas Dikona (P.W.2), neighbour of the appellant, in his deposition has not stated anything about the welfare of the child, except that sometimes he had found quarrels in the family. Ashok Kumar Dogre (P.W.3), colleague and friend of the appellant has also not stated anything with regard to the welfare of the child. Upendra Kumar Pandey (P.W.4), who is a Mining Officer and used to live as neighbour of the appellant, in his cross examination has stated that when the child was crying, the appellant's wife Vineeta/respondent was not taking care. He has further stated that he did not like^ihe wife of the appellant, Vineeta, as she was not talking to him. Another Mining ^..:^ 'ti:,.,.^^ /' Inspector, Mahesh Kumar Verma (P.W.5) has also stated the same thing. He has not stated anything about the child. Dr. Pramod Gupta (P.W.7) has stated that the respondent was having a problem of panic disorder i.e. restlessness, insomnia and loss of appetite (anorexia) but the same was not a serious and permanent disease. 12. The respondent has produced the evidence of Smt. Leela Gajbhiye (D.W.l), mother of the respondent, in the form of the affidavit, who has stated that the appellant was assaulting her daughter/respondent and giving mental and physical trouble. Jaidas Somkunwar has stated in his affidavit that the defendant/respondent is an educated lady and was devoting her time for studies and care of her child. Her son Vivek was fully healthy and there was all round development of him. Vivek was a good student and' always obtained more than 95% marks. He further stated that he has seen the progress report of Vivek. 13. Girish Kumar Gajbhiye (D.W.4), brother of the respondent, has deposed that the relations between his sister/respondent and the appellant were not proper. The appellant was always indulging in abusing and assaulting even in Court premises the appellant had abused him and assaulted him. His sister was postgraduate in commerce and he has been pursuing LL.B course. 14. On perusal of the depositions afore-stated, we have no hesitation in holding that the learned Judge has appreciated the evidence properly and came to the right conclusion that the respondent was not suffering from any mental disorder. The behaviour of the appellant and his family members was not conducive to the development of the minor child, which may have adverse impact on Vivek. It has further been found that the respondent has complete devotion and ^. ^. commitment to the welfare of the child. The report of the doctor clearly indicates that the respondent was not suffering from any mental disorder but some problem of restlessness, insomnia and loss of appetite (anorexia) was there, which could have been cured by simple medication and there was no instance wherefrom it can be inferred that the respondent's behaviour was cruel towards the child. Further, the appellant was not grompt in paying the maintenance as granted by the Court under the provisions of Section 125 of the Criminal Procedure Code. 15. In Smt. Mohini Vs, Virender Kumar1, Hon'ble Supreme Court observed that the paramount consideration for guardianship and custody of the child is the welfare of the child. 16. In Smt. Surinder Kaur Sandhu Vs. Harbax Singh ISandhu and another2, Hon'ble Supreme Court observed as under: <(9. Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the father as the natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. As the matters are presented to us today, the boy, from his own point of view, ought to be in the custody of the mother.?? 17. For the reasons mentioned hereinabove, the impugned order is just and proper, which does not warrant interference by this Court. 18. Accordingly, the appeal fails and is dismissed. No order asto costs. However, the appellant shall be at liberty to meet the child Vivek, as has been directed by the Court below in its impugned order dated 4.7.2008. —- SA/- SatishK.Agmhotn Judge Thakur Sd/- R.L. Jhanwar Judge 1(1977)3SCC513 2 (1984) 3 SCC 698