IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.) F.A.(M) N0. ^ 1 OF2009(D.B.) PPELLANT ^^.^ ^•":^-'%^-" »-r'" ^y- ^~" RESPONDENT ^•^holaram Sahu, S/o Late Shri Raghuvir Sahu, aged about 30 years, R/o Steel Colony, Bhilainagar, P.S.-Supela, Tahsil & District-Durg (C.G.) VERSUS : <-^mt. Parwati Sahu, W/o Late Shri Chandraprakash Sahu, aged about 56 years, R/o Shitla Nagar, Near JamTalab, Durg, Tahsil & District- Durg (C.G.) APPEAL UNDER SECTION 19 (11 OF THE FAWIILY COURT ACT v<T HIGH COURT OF CHHAmSGARH AT BILASPUR F.A.(M) No. 59/2009 APPELLANT RESPONDENT Bholaram Versus Smt. Parwati Sahu HON'BLE SHRI I.M. OUDDUSI. J For consideration Sd/- N.K. Agrawal Judge Sd/- I.M.Quddussi Judge Postfor: "] -10-2010 Sd/- N.K.Agarwal Judge ^ '''•- ^ HIGH COURT OF CHHATTISGARH AT BILASPUR F.A.fM) No. 59/2009 APPELLANT Bholaram Versus © RESPONDENT Smt. Parwati Sahu DB:- HON. SHRI I.M. QUDDUSI AND HON SHRI N.K. AGARWAL, JJ PRESENT:- Shri Vivek Sharma, Advocate for the appellant. Shri Ashish Surana, Advocate for the respondent. ORDER ("7 -10-2010) Per N.K. Agarwal. J 1. The instant appeal is directed against the order dated 21-7- 2009 passed by IInd Aditional Principal Judge, Family Court, Durg in Misc. Civil Suit No. 18/2008 whereby and whereunder, the appellant's application under Section 25 of the Guadians and Wards Act, 1890 has been dismissed. 2. Fact of the case in brief are as under:- i. The appellant is father of minor Dhairya Kumar Sahu, aged about 6 years and the respondent is his maternal grand mother (Nani). ii: The wife of the appellant i.e. Smt. Yogita Sahu died of burn injuries sustained by her on 28-1-2005. For that, Sessions Trial No. 60/2005 for offence under Section 306/34 of Indian Penal Code is pendirig against the appellant and his other family members. Since then, the minor is in the custody of the respondent. iii. The appellant i.e. father filed an appHcation under Section , 25 of the Guardians and Wards Act claiming custody of the child inter alia on the ground that he being the natural guardian of the child is legally entitled for the custody; his K*' - IV. V. VI. 3. 4. ^.-f financial status is very good; it would not be proper to deprive the child from love and affection of father; in order to look after the welfare of the child, he is the most suitable person. On the other hand, the respondent is a greedy old lady who only wants to realize the amount pertaining to Smt. Yogita Sahu lying deposited with her department. Denying the claim of the appellant, the respondent charged the appellant as a person of criminal back ground and bad character involved in the offence of abetting the suicide of his wife; also contracted second marriage. It was further stated that she is maintaining the child with all due caution and care and the child is growing up well in an atmosphere which conducive to its growth. Both the parties have led evidence. Learned trial Court on appreciation of material placed on record, dismissed the petition filed by the appellant with costs. Learned counsel for the appellant would submit that though the appellant has contracted second marriage, still it would be better in the welfare of the minor to be in the custody of the appellant. The appellant's financial position is sound; is natural guardian of the minor, entitled for the custody; the minor is not being properly maintained by the respondent; the appellant shall give the minor proper love and affection and edupation. Relying upon the judgment in the case of N. Nirmala (Smt.) v. Nelson Jeyakumar reported in 1999 (II) MPWN Note 65, it was further contended that learned trial Court-has also improperly dismissed the appellants prayer regarding his visitation right. On the other hand, learned counsel appearing for the respondent supported the impugned order and submitted that the trial Court's order is well reasoned order and deserves to be upheld. ».SL / ^^' ^p- 5. We have perused the order impugned and records of the trial Court. 6. The appellant has already contracted second marriage; is facing sessions trial for offence under Section 306 read with Section 34 of I.P.C. for abetment of suicide of his wife; and the minor is in the custody of respondent since the death of his mother. 7. As per Section 13 of the Hindu Minority and Guardianship Act, 1956, in the appointment or declaration of any person as guardian of a Hindu ininor by a court, the welfare of the minor shall be the paramount consideration. Under section 17 of the Guardians and Wards Act, 1890, the court is under a duty to appoint the most suitable person amongst the rival claimants for guardianship, although a person who under the personal law would be entitled to the custody of the child in preference to any one else. The scope of Section 17 of the Guardians and Wards Act, 1890 is that the court has to see who of the several applicanfs has a preferential right to be appointed as guardian of the minor under the personal law keeping also in view the welfare of the minor. The court should be guided by the sole consideration of the welfare of the minor. The Apex Court in case of Sumedha Nagpal -v- State of Delhi and others reported in 2000 (9) SCC 745 while interpreting the proviso to Section 6 (a) of the Hindu M'inority and Guardianship Act, held that decision on the question of custody should be made bearing in mind the welfare of the child - It cannot be made simply -on the basis ofright of the parties under the law, and observed in para 4 and 5 of the judgment as under:- "4. Even at this stage, Shri D.D. Thakur, the learned caunsel for the peUtioner laid great emphasis that we should not shirk our task at least with respect to the limited question of ordering restoration of the custody of 'x . ~ - .. the minor child to the mother. He submitted that though Section 6 of the Act recognises guardianship of 8. the minor child with both the parents, exclusive right of the mother is recognised in respect of the custody of a minor child below five years. This legislative recognition of the maternal instinct should be honoured by us by treating the custody of the child with the father as illegal and the custody should be handed over to the mother pending the proceedings suggested by us earlier in the course of this order. 5. In d'eciding such a question, what we have to bear in mind is the welfare of the minor child and not decide such a question merely based upon the rights of the parties under the law. In the pleadings and the material placed before us, we cannot say that there is any, much less clinching, material to show that the welfare of the minor child is at peril and calls for an interference. The trauma that the child is likely to experience in the event of change of such custody, pending proceedings before a court of competent jurisdiction, will have to be borne in mind. We are conscious of the emphasis laid by the leamed counsel for the petitioner that the lap of a mother is the natural cradle where the safety aud welfare of the child can be assured and there is no substitute for the same, but still we feel that at this stage of the proceedings it would not be appropriate for us to interfere in the matter and leave all matters . arising in the case to be decided by an appropriate forum irrespective of whatever we have stated in the course of this order. Even though we have dealt with the -contentions raised by Shri D.D. Thakur as to grant of interim custody to the petitioner, we should not be understood as having held that a petition would lie under Article 32 for grant of custody of a rainor child; we refrain from examining or deciding the same. The Hon'ble Apex Court in the case of Elizabeth Dinshaw (Sm.t.) -v- Arvand M. Dinshaw and another reported in 1987 i(1) SCC 42 while dealing with Section 7 and 17 of the < ,f.y Guardians and Wards Act, 1890 has held that when a question arises before a court pertaining to custody of a minor child, the matter has to be decided not on considerations of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the niinor. 9. The HonTale Apex Court in case of Anjali Kapoor (Sint.) -v- Rajeev Baijal reported in 2009 (7) SCC 322 relying upon the two judgrrients referred 'to hereinabove has held in para 26 that "ordinarily, under the Guardian and Wards Act, the natural guardians of the child have the right to the custody of the child, but that right is not absolute and thecourts are expected to give paramQunt consideration to the welfare of the m.inor child. The child has remained with the appellant grandmother for a long time and is growing up well in an atmosphere which is conducive to its growth. It may not be proper at this stage for diverting the environment to which the child is used to. Therefore, it is desirable to allow the appellant to retain the custodyofthe child. It will not be out of place to mention here that the facts of the above case are some what similar inasmuch in the above case^ the rivel claimants of the child were matemal grand mother and father and the minor was in the custody of the grand mother since the death of her daughter i.e. )mother of the minor and wife of the respondent. 10. Th<e Supreme Court in dase of Mohan Kuinar Rayana -v- Komal Mohan Rayana reported in 2010 (5) SCC 657, Gaurav Nagpal -v- Sumedha Nagpal reported in 2009 (1) I SCC 42, Athar Hussain -v- Syed Siraj Ahmed and others reported in 2010 (2) SCC 654 have also held that welfare of the child is the sole and single yardstick to assess comparative merit of the parties contesting for guardianship. 11. The Hon'ble Supreme Court ifa case of Mausami Moitra Ganguli -v- Jayant Ganguli reported in 2008 (7) SCC 673 has observed in para 19 to 21 as under:- "19. The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably, the provisions of law pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. 20. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concemed. It is, no doubt, true that father is presumed by the statutes to be better suited to look after fhe welfare of the child, being normally the working member and head of the family, yet in each case the court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or 'fheir love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the court to exercise its judicial discretion judiciously in fhe background of all the relevant facts and circumstances, bearing in mind the welfare ofthe child as the paramount consideration. 21. In Rosy Jacob v. Jacob A. Chakramakkal reported .in (1973) 1 SCC 840) a three-Judge Bench of this Court in a rather curt language had observed that: "15. ... The children are not mere chattels: nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has; in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of theu- respective parents over them." 12. The Hon'ble Supreme Court in case of Athar Hussain (supra) has held in para 44 of its judgment that "The second marriage of the appellant, though a factor that cannot disentitle him to the custody of the children, yet is an important factor to be taken into account. It may not be appropriate on our part to place the children in a predicament where they have to adjust with their stepmother, with whom admittedly they had not spent much time as the marriage took place only in March 2007, when the ultimate outcome of the guardianship proceedings is still uncertain. 13. Now reverting to the facts of the instant case, it is not in dispute that the child is in the lawful custody of the respondent since the death of the mother, the appellant i.e. father of the child is facing trial for abetment of suicide of his wife/ mother ofthe child under Section 306/34 ofI.P.C. The appellant had contracted second marriage. The minor has not spent any time with the step-mother till now. The child has remained with the respondent/matemal grand mother for a long time and is growing up well in an atmosphere which is conducive of its growth. In the pleading and the material placed before us, we cannot say that there is any, much less clinching, material to show that the @) welfare of the minor child is at peril and calls for an interference. It is also not shown that the minor child is not happy with his matemal grand mother who is taking every care for his welfare, also imparting him proper education. In such a situation, we see no reason to disturb the custody of minor and give him in the custody of the appellant. 14. In view of the above, although we do not find any substance in the appeal and the appeal on this count deserves to be and is hereby dismissed, but at the same time, it cannot be overlooked that the father is to have visitation rights to the child. Therefore, the impugned order is partially modified and .we direct that the appellant shall have the visitation right twice every month preferably on Saturday or Sunday or a festival day. The respondent shall allow the child to visit the father from. morning to evening. The appellant /father shall take the child and leave him at the respondent s hoine on such day. 15. With the above modification, the appeal is disposed. Sd/- I-M.Quddussi Judge Sd/- N.K.Agarwal Judge