* 1 * FCA-122/2005 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 122 OF 2005 Sou. Ankita Jankajirao Jadhav Age 35 years, Occ. Nil, R/at C/o. Shri. Jaysingrao Chauhan Panpatte Ki Goth, Lashkar Gwalior, Madhya Pradesh ........Appellant/ Orig.Respondent : VERSUS : 1. Shri. Sambhhajirao Rangajirao Jadhav Aged : 72 years, Occ : Pensioner R/o. Laxminarayan Nagar Building No.12, Flat No.5, Karve Road, Erandwane, Pune- 411 904. 2. Sou. Vijaya Sambhajirao Jadhav Age: 65 years, Occ. Nil R/o. Laxminarayan Nagar, Building No.12, Flat No.5 Karve Road, Erandwane Pune-411 904. .........Respondent/ Orig.Petitioners. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Ms. Seema Sarnaik, Advocate for the appellant. Mr. S.J. Ghagare, Advocate for the respondent. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- CORAM : Smt. R.P. SondurBaldota, J. Judgment Reserved on : 30th April, 2010. Judgment Pronounced on : 07th May, 2010. * 2 * FCA-122/2005 JUDGMENT : [PER :- SMT. R.P. SONDURBALDOTA, J] : 1. The dispute represented by this appeal is about the guardianship and custody of minor Ranoji who is the son of the appellant and grandson of the respondents. By the judgment and order dated 22nd February, 2005 impugned in the appeal, the Family Court, Mumbai allowed the petition filed by the respondents under The Guardianship and Wards Act for being appointed Guardian of Ranoji and for his permanent custody. 2. The appellant was married to Jankoji, the son of the respondents on 27th February, 1996. After marriage, both started residing with the respondents at Pune. Ranoji was born on 17th November, 1996. For the purpose of his delivery, the appellant had gone to her parents house at Gwalior. She returned with Ranoji in April 1997 and resumed residence with the respondents. Unfortunately, Jankoji died in a motor accident on 25th May, 1997. Even thereafter, the appellant continued to reside with the respondents. Ranoji had been admitted to playgroup in Pune in June 1999. In May, 2000 the appellant took Ranoji to Gwalior and was there until April, 2002. Ranoji completed his Junior K.G. at Gwalior. Then in May 2002, it was decided by her and her parents that it was in the best interest of Ranoji that he resides at Pune with the respondents. Therefore, the appellant returned to Pune and Ranoji was admitted to the Abhinav High School, Pune where he is studying till date. On 15th November, 2003 the appellant went to Gwalior leaving Ranoji with the * 3 * FCA-122/2005 respondents. Thereafter, instead of returning to Pune she sent advocates notice dated 24th September, 2004 demanding some properties and custody of Ranoji. The respondents then on 12th October, 2004 filed the petition seeking their appointment as guardian of Ranoji and his permanent custody. The appellant did not appear in the petition which was finally allowed by the impugned judgment and order. During the pendency of the petition, the custody of Ranoji continued with the respondents. 3. The appellant had filed an application before the Family Court under Order 9 Rule 13 Civil Procedure Code for setting aside the ex- parte decree alongwith Miscellaneous Application NO. 27 of 2005 for condonation of delay. By it’s order dated 8th August, 2005 the Family Court rejected the application for condonation of delay. Consequently, the application for setting aside ex-parte decree stood rejected. 4. The present appeal has been directed by the appellant against both the orders i.e. the ex-parte decree dated 22nd February, 2005 and the order dated 8th August, 2005 passed against her. Ms. Sarnaik, the learned Counsel for the appellant, however, has conceded in fairness in view of the decision of the Hon’ble Supreme Court in the case of Banu Kumar Jain V/S. Archana Kumar and Anr. reported in (2005)1 S.C.C. page 787 that when an application under Order 9 Rule 13 of the Civil Procedure Code is dismissed, the defendant cannot raise the same contention in the first appeal. Besides, undisputedly the appellant had * 4 * FCA-122/2005 earlier filed Writ Petition No. 5573 of 2005 to challenge the order dated 8th August, 2005. That petition came to be withdrawn by the appellant on 30th September, 2005 with liberty to her to file a fresh petition if an occasion arose. The appellant has not exercised the liberty granted to her. With this, the order dated 8th August, 2005 attained finality and there is no question of assailing the same in the present appeal. In the circumstance, the present appeal is limited to the challenge to the order dated 22nd February, 2005 on merits. 5. The respondents contended in their petition that the appellant is an extremely simple person with a low I.Q. She is physically and mentally weak. She has no means of earning and is not able to look after even herself independently. The respondents have been looking after Ranoji since his infancy. The respondent no.2, the grandmother has done the entire nursing of Ranoji. Respondent no.1 is a well educated person holding degree of Bachelor of Engineering (Civil) and can look after the education of Ranoji. As compared to the parents of the appellant, the respondents are financially better off. They have plan to leave their entire property to Ranoji in future. It was also the contention of the respondents that the language predominantly used in Gwalior is Hindi, whereas Ranoji knows Marathi and English. In that circumstance also, it would be more convenient and comfortable for him to take his education at Pune which undisputedly is a good centre of education. As against this, the appellant contends that she being the mother of Ranoji is his * 5 * FCA-122/2005 natural guardian and hence entitled to his custody. 6. The Family Court considered the material produced before it by the respondents i.e. their affidavits, the property extracts of respondent no.2, Income Tax returns of respondent no.1, fixed deposit receipts, life insurance policy of Ranoji, his progress card and his extra curricular activities. It noted that Ranoji has been with his grandparents since June 2002 and during this period, there was no claim made by the respondents of his custody. The progress card of Ranoji showed that he was getting good marks and has also been participating in extra curricular activities. His medium of education is English with Marathi as the second language. In consideration of these circumstances, the Family Court held that the respondents have established that they can be appointed as legal guardians of Ranoji and have his permanent custody. It also held that considering the welfare of Ranoji, the custody should be given to the respondents. With these findings, it allowed the respondent’s application. 7. The appellant challenges the impugned order contending that she being the natural guardian of Ranoji in view of Section 6 of the Hindu Minority and Guardianship Act, 1956 is entitled to have his custody, unless she is barred or prohibited under the section. According to her, there is no material before the court to show that there is any bar against her under the proviso to Section 6 of the Hindu Minority and Guardianship Act, 1956. * 6 * FCA-122/2005 8. During the pendency of the present appeal, an interim arrangement was arrived at between the parties pursuant to the minutes of order dated 4th May, 2006. Under the interim arrangement, the parties agreed that education of Ranoji will be completed in Pune only and the respondents will bear his educational and health expenses. The respondents agreed to arrange for residential premises consisting of two rooms for the appellant at Pune and also agreed to provide maintenance of Rs.1000/- to her. The appellant, in turn agreed to make attempts to secure a job. It was also agreed that custody of Ranoji will be with the appellant and the respondents will have free access to him. Accordingly, the respondents arranged for residential accommodation for the appellant and started paying her a sum of Rs.1,000/- per month. Ranoji started residing with the appellant. However, admittedly within a few months after the arrangements, he returned to the respondents and has been residing with them till date. Even then, the respondents have not stopped abiding by the minutes of the order as regards the provision for residential accommodation and payment of maintenance to the appellant. It appears that the appellant had filed proceedings under Section 18 of the Hindu Adoption and Maintenance Act in the court at Gwalior against the respondents. In view of the minutes of the order dated 4th May, 2006 she has withdrawn those proceedings. It may also be mentioned at this stage that proceedings had been filed claiming compensation under the Motor Vehicles Act on account of death of Jankoji in the motor accident. * 7 * FCA-122/2005 The total amount of compensation awarded by the court in the proceedings inclusive of interest was of Rs.12,76,614/-. Pursuant to the apportionment of the compensation made by the court, the appellant has received a total sum of Rs.6,68,089/-, a sum of Rs.5,90,584/- has been invested in the name of Ranoji and the respondents have received a sum of Rs.90,095/-. It has been pointed out by Mr.Ghogare, the learned counsel for the respondents, that the appellant has invested the entire amount received by her in three fixed deposits jointly in the name of herself and her father in the banks at Gwalior. She has not utilised a single rupee out of the compensation amount either for her maintenance or for the maintenance of Ranoji. Ms. Sarnaik, the learned counsel for the appellant states that the appellant is likely to get cumulative interest of about Rs.4,500/- per month from the next year, which she would then be utilising for her maintenance. 9. The application filed by the respondents seeking appointment as guardians and for custody of Ranoji was under Section 10 and 25 of the Guardians and Wards Act. Though, the appellant is the natural guardian of Ranoji in view of Section 6 of the Hindu Minority and Guardianship Act, 1956, the court is empowered under Section 43 of the Guardians and Wards Act to appoint any other person as his guardian on the application of such interested person. Section 17 of the Act, provides for the matters to be considered by the court in appointing guardian, which are (i) the consideration of the law to which the minor is subject and (ii) * 8 * FCA-122/2005 the welfare of the minor. While considering the welfare of the minor, the court is required to have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian, his nearness of kin to the minor, the wishes if any of the deceased parent and existing or previous relations of the proposed guardian with the minor and his property. The Section further provides that if the minor is old enough to form an intelligent preference, the court may consider that preference. In the circumstances, though the appellant is the natural guardian of Ranoji, the application filed by the respondents for being appointed as his guardian must be considered on the touchstone of Section 17 of Guardian and Wards Act, i.e. the welfare of Ranoji. 10. The respondents herein are not any strangers. They are the paternal grandparents of Ranoji. He has been residing continuously with them for the last 8 years i.e. since May, 2002 barring for a few months in the year 2006. Undisputedly, the respondents have looked after Ranoji since his infancy with respondent no.2 nursing him throughout. It is also not in dispute that the respondents are financially much better off than the parents of the appellant. It would be pertinent to note at this stage that the minutes of the order dated 4th May, 2006 specifically provided that educational and health expenses of Ranoji would be borne by the respondents and that Ranoji would continue his education at Pune. It is not the case of the appellant that she has secured any permanent job during the period of last four years. Ms. Sarnaik, informs the court that * 9 * FCA-122/2005 appellant is presently holding a temporary job as a salesperson in a shop on the salary of Rs.500/- per month. 11. Considering the nature of the dispute and facts of the case, we thought it fit to interview the parties in chamber. We found that both the sides exhibited natural love and affection for Ranoji and desired for his welfare. The appellant specifically stated that there she has no objection if custody of Ranoji is given to the respondents but was keen on having frequent access to him. She desired that Ranoji spends some time with her on regular basis. There can be no objection to such a desire. Since the age of Ranoji today is of about 14 years and as such he is old enough to form an intelligent preference as regards his custody, we had interviewed him also in Chamber. We found Ranoji to be an intelligent child and very well brought up by the grandparents. He made a clear and specific preference of residing with his grandparents. At the same time, he was not averse to his mother either. He stated that he has been visiting his mother often and would continue to do so in future. Taking into consideration all the above aspects of the matter, we are of the opinion that the Family Court was correct in allowing the application filed by the respondents for being appointed as guardians of Ranoji and granting them his permanent custody. Therefore, the impugned order does not require any interference on that count. We have however, found a technical error in the operative part of the impugned order. Though, the Family Court has given a finding that the respondents can * 10 * FCA-122/2005 be appointed as guardians of Ranoji and can have his permanent custody, the operative part refers only to the custody of Ranoji. This technical error in the operative part of the impugned judgment is required to be corrected, in order to complete the judgment, by specifying therein that the respondents are appointed as guardians of child, Ranoji. We also find that reference to Section 25 of the Guardians and Wards Act in the operative part of the impugned order is erroneous because this Section can have no application to the facts of the case. This was not the case of a minor either leaving or being removed from the custody of guardian. 12. In the circumstances, we confirm the order of the Family Court in allowing Petition D No.209 of 2004. The respondents are appointed as guardians of minor Ranoji and given permanent custody of Ranoji from 22nd February, 2005 i.e. the date of the impugned order. In the facts and circumstances of the case, no order as to costs. [SMT. R.P. SONDURBALDOTA, J] [A.P. DESHPANDE, J]