<s TN THE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.) ^_ FIRST APPEAC/iNO. ^.6 /2011 ';,'!i1"i * ^3 £ 13 ^, APPELLANT Non-applicant ^v-.,..:. ^^•^: "r oy'' ' ..•••";' p1e3T^.--;-;\'--:\l .Qg^..-^^-\-' ,0^\ 'Manish Singh, S/o Shri OP Singh, Aged about 37 years, R/o Katora Talab, Ravlani • Nursing Behind Home, V RESPONDENT ^pplicant .-—' Raipur Distt. Raipur (CG) VERSUS Pallavi w/o Manish Singh, aged about 32 years, R/o MIG 12, Katora Talab, Punjabi Colony, Raipur, Distt. Raipur (CG) |30)<MJ lyfsj FaAM.t'4 C.&UAJL' APPEAL tTNDER SECTION C47^)OF THE (GUARDIAN AND WASDS? ACT. (alSct .lCj i-^ HIGH COURT OF CHHATTISGARH : BILASPUR F.A. (M) No. 26of2011 Appellanl, Manish Singh '.? Versus Respondehts Pallavi APPEAL UNDER SECTION 19(1) Bs 19(5) OF THE FAMILY COURT ACT,1984 DB: Hon'ble Shri Justice I. M. Quddusi 8s, Hon'ble Shri Justice G. Minhajuddin, JJ Ms Fourzia Mirza, Advocate with the appellant Shri Manish Singh. Shri Vivek Singhal, Advocate with the respondent Ms Pallavi. <- JUDGMENT SB ORDER IQral) ( Passed on this 1 1th day of October, 2011 ) PerI. M. Quddusi J. 1. The instant appeal has been filed by the appellant/non- applicant(father/husband) against the order dated 7.1.2011 passed by the First Additional Principal Judge, Family Court, Raipur in Case No. 14/2010 (Pallavi Singh Vs. Manish Singh), rejecting the objection of the appellant regarding maintainability of the application for custody of the minor child, moved by the mother/wife, under Section 25 of the Guardian And Wards Act, 1890 and under Section 12 of the Act, 1890 for interim custody. 2. The brief facts of the case are that the marriage of appellant and respondent was solemnized on 19.6.2007 at Raipur according to Hindu customs. Out of the wedlock one male child was born in the maternal home of the respondent/wife. On 2.12.2009 the respondent/wife was ousted by the appellant from her matrimonial home and the child was forcibly kept by him. Therefore, the respondent/wife filed an application under Section 25 of the Guardian and Wards Act, 1890 for gettin^ ia^^^sisan^i3£Sp*a^iH|j|i custody of the minor child along with an application under Section 12 of the Act, 1890 for getting temporary custody of the minor child. The appellant/husband filed an application on 13.9.2010 objecting the maintainability of the applications filed by the respondent/wife, which has been rejected by the Family Court by the impugned order dated 7.1.2011. Learned counsel for, the appellant has relied upon the judgment of learned Single Judge of Kerla High Court in the case of P. N. Ranaachandra lyer Vs. S. V. Aiiapurni Aininal, reported in AIR 1964 Kerala 269. We will consider this case at a latter stage. Before proceeding further it is necessary to mention that it is not disputed that the appellant is the father of the minor child, aged about 3 years at present and the respondent is the mother of that child, who moved the application for custody of the child. Section 6 of the Hindu Minority and Guardianship Act, 1956, which is applicable in the case of the parties before us reads thus : "6. Natural guardians of a Hindu ininor. - The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the rainor's property (excluding his dr 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 gir't ~ the mother, and after her, the father; (c) . m the case of a m^rried girl - the husband; Provide'd 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). PUB suBipjBnQ sqi jo / uoposs japun uopB3i(ddB sq.} usqAV ^jnoQ f8u~[ sqt Aq p3j3pisuoo sq o^ nps s^q 9S6I '^::>V dTqsuripjBno PUB A';UOUT]/\[ npuiH sq^ jo ('e) 9 uoposs jspun jsq^oui 3-cft jo ujrep sq^ fviy uop^Ajssqo sqi q^iM psssilusTp si UOTSTASJ siq^ Suipuy ^Bq^ UQ •UOpBOIldd'B ^13q^ SuiSSTlHSIp UT ^[•Buopoipsunl' SUO-TAV suog SA^L{ o^ pres sq 'sjojs-iaqt '^OUUBO iJnoQ pu; aqj, •jSyCBjd siq^ 01 ps^ins 'sjojsjsq: '^ou SBAV 0681 'W SPJ^M pu'e sunpjEno sqi jo ^~[ uoposs jspun uop'eoi^dde sqj, '9S6T '1-3V diqsu^TpjBno PUB A(UOUI]^[ npuiH svp }o (v) g uoposs jspun sj'esA SAIJ jo 33v aq: sure-t-ce sq (^p ApT3^nSaj ^nq A(ui3jodui3; ^uo ^ou JOUTLU sqi jo Apoisn.3 sq^ ureiqo o^ si A\\v3.s j3L(^om sq-t jo AtSTXur 3q-( 'SAoqB U3?[131 3A-8q I }13L{1 M3IA 3Vft UQ '996T 'l^ dlL[SU'BTpJBnO pUT3 A(uouip\[ npuij-j sqi jo (v) g uoposs jspun Larep ^BI UBO jaqioui SL[I qoiqAV o; jouiiu sq^ jo Apoisno lusu-BUjjsd sqi q}TM psu-isouoa ^ou S'BAA ;; '068T '1;:IV SP-IBM PU'B sumpjBnQ SL[^ jo 2'[ uoposs japun uop'eoiidd^ aq^ jo Suisodsip ui JOUILU sq^ jo uopoa-tojd pus Xpo^sno Aj-ejoduis^ sq-t q^iM XIUQ paujsouos SBM ^-inoQ (i3Ut sq; t^q^ ji33p si }T UOISIA3J -ISpUn -I3pJO 3L[t ]A[OHd (z) : jspun s'e pSAjssqo ^ BjTSd ui 'iu-BnsddB sqi JOj jssunoo psuj-eai Aq uo psns-i 'l^,^ (-t7Z6l) y^y '96fr (ez.6T) 6 na 's^qpBA f"a lAqipd 'SA npui SCTIV BMqpBA Bqsy jo ss'eo aq^ UT }\-[\3Q jo t-ino3 q3iH jo sSpnp 3l§u!S psu-i^sq •SJB3A 3AIJ JO 3§'B 3q"( p313{dQioo ^ou srq oqA^ pliqo 3tp jo Apoisna sq^ 0^ XITJBUTPJO pspiiusi si sqs 'i'eq') sspiAojd 3;n^is aq-) usqA^ PITqa 3L[t jo Apo^sno joj uopB3iiddi3 ui3 §UTAOUI jo psAudsp sq uvs jsqioiu aq^ j3q;3q^& sn sjojsq USSUB seq uopsanb sqi sjojsjsqi puB jsq^oui sq^ qtiM sq Apj'BUTpjo IIBqs SJB3A 3AIJ JO 3§-e 3L(^ p3~t3\dvi03 lou SBq oqA\ PITqo -louiui 3L[; jo Apoisno sqi ^eqi sspiAojd s^n^^s 3L(4 Aisnosu-et^nuiis ^nq pliqo sq^ jo u^ipj^n3 jrjniBU sqi ST Jsqi'ej sq^ '(BV^ 1313J sq^ inoqB a^ndsip ou si sjsqj^ „ •JSq^OLU-ds^S 13 pUB -I3l[^13J-d3^S -B spnpui ^ou op ^-isqioui,, pur ^jsqi'ej,, uoisss-ldxa sq^ 'uopoas siq^ u;—•uop'eu'eidxg '^ 1». fl :^ )f »// ^ .".-y -^-—••as Wards Act, 1890 comes before it for disposal. As the question is of great delicacy and urgency to both the parties, the trial Court will no doubt dispose of the application under section 7 as expeditiously as possible. There will be no order as to costs." 7. Hon'ble Supreme Court in Rosy Jacob Vs. Jacob A. Chakraniakkal (1973) 1 SCC 840 has held that the Court's-power under Section 25 of the Guardians and Wards Act is to be governed primarily by the consideration of the welfare of the minors concerned. The discretion vested in the Court is, as is the case with all judicial discretions to be exercised judiciously in the background of all the relevant facts and circumstances. Each case has to be decided on its own facts and other cases can hardly serve as binding precedents, the facts of two cases in this respect being seldom — if ever-identical. It has been further held that where fhere is no dichotoray between the fitness of the father to be entn-isted with the custody of his minor children and considerations of their welfare, the father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody .to him as against the wife who may also be equally affectionate towards her children and otherwise equally'free from blemish, and, who, in addition because of her profession and financial resources, may be in a position to guarantee better health, educ^tion and maintenance for them. 8. In Githa' Hariharan (Ms) and another Vs. Reserve Bank of India and another (1999) 2 SCC 228, a three Judges Bench of Hon'ble Apex Court as per the majority view has held as under : Y .y ^ 9. 10. "10. We are of the view that. Section 6 (a) (supra) is capable of such construction as would retain it within the constitutional limits. The word "after" need not necessarily mean "after the lifetime". In the context in which it appears in Section 6 (a) (supra), it means "in the absence of', the word "absence" therein referring to the father's absence from the care of the minor's property or person for any reason whatever. If the father is wholly indifferent to the raatters of the rainor even if he is living with the mother or if by virtue of mutual understanding between the father and the mother, the latter is put exclusively in charge of the minor, or if the father is physically unable to take care of the minor either because of his staying away from the place where the mother and the minor are living or because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent and the mother being a recognized natural guardian; can act validly on behalf of the minor as the guardian. Such an interpretation will be the natural outcome of a harmonious construction of Section 4 and Section 6 of the HMG Act, without causing any violence to the language of Section 6 (a) (supra). " Needless to mention that sub-section (5) of Section 8 of the Act, 1956 provides that "The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act". Learned counsel for the appellant has submitted that the language of Section 25 of the Guardians and Wards Act, 1890 shows that the application is niaintainable only when the child is removed from the custody but t.o our opinion it' is a matter of fact to be determined by the Court. 'On the admission stage nothing can be said. However, it may also to be noticed that merely mentioning wrong section would not disentitle the.applicant and it would not amount to non-maintainability (i of the application moved. In the instant case, when statute provides that the custody of a child should ordinarily remain with the mother up to five years according to the provision of Section 6 (a) (proviso of Section 6(a) of the Act, 1956) the mother cannot be deprived of moving an application for custody of the child. However, we are not concerned with the merit of the case which is to be decided by the learned court below. 11. Section 13 of the Hindu Minority and Guardianship Act, 1956 provides for paramount consideration-of welfare of minor, which reads as under : "13. Welfare of minor to be paramount consideration.—(1)In th.e appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. (2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage araong Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor." 12. There is catena of decisions on the point of welfare of the child but we are not discussing it at this stage as the appeal has been filed only on the point of maintainability of the application moved by the respondent for custody of the child. 13. The decision of learned Single Judge of Kerela High Court given in the case of P. N. Ramachandra lyer is not helpful to the petitioner as it is distiriguishable on facts. In that case the age of the minor girl was 7 years.. whereas in the instant case the age of the minor child is about '2V-2 years. Further, learned Single Judge in that case had not considered the provisions of Section 6 (a) of the Act, 1956 as there was no occasion for him to consider the provisions, considering the age of the giri child in that case. S"i ^ .-^sy—r- <^ 14. 15. In view of the above we are of the opinion that the application filed before learned family Court by the respondent herein for the custody of the minor child is maintainable. Therefore, the appeal fails and is disniissed. No order as to costs. Before parting with the judgment and order it is made clear that we have not considered the merits of the case. Learned trial judge shall consider and decide the application filed by the mother (respondent herein), independently, without being influenced by any of the obseryations made by us herein above. Sd/- I.M.Quddusl Jud&e Sd/- G. Minhajuddin Judge Thakur rs:^EB^3SH3@a