Case: Shyamrao Maroti Korwate Vs. Deepak Kisanrao Tekam

or her guardianship will not be for the welfare of the minor." 10. If we analyze the above provisions, one thing is clear that in a matter of custody of a minor child, the paramount consideration is the "welfare of the minor" and not rights of the parents or relatives under a statute which are in force. The word "welfare" used in Section 13 of the Act 1956 has to be construed literally and must be taken in its widest sense. 11. In Gaurav Nagpal vs. Sumedha Nagpal, (2009) 1 SCC 42 , this Court held: "51. The word "welfare" used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well-being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases." 12. In the light of the above background, let us consider whether the custody of the minor is to be entrusted with the maternal grandfather as ordered by the District Court or with the father as directed by the High Court. We have already referred to the fact that on 23.03.2003, after giving birth to the child, the mother died and the child was taken by the maternal grandfather. The maternal grand-father filed a petition for custody on 07.08.2003 and father also made a similar petition for custody on 15.10.2003. Before the District Judge, it was highlighted that immediately after the death of his wife, the respondent-husband married another woman and also has a son from his second marriage. Though the exact date of marriage is not mentioned anywhere, the fact remains that within a period of one year after the death of Kaveri, daughter of the appellant herein, the respondent-husband married another woman. It is also highlighted by the appellant that the respondent is working as an Operator in the Maharashtra State Electricity Board at a distance of 90 kms from his residence. It is further stated that the place where respondent is residing is a rural village and there is lack of better educational facilities. It is the claim of the maternal grandfather that he is a pensioner getting sizeable income by way of pension and other retiral benefits and also own agricultural properties. It is his further claim that he is living with his wife i.e. maternal grandmother of the child and other relatives such as sons and a daughter. It is also his claim that he is residing in a Taluk Centre where good educational facilities are available. 13. Though several allegations have been made by the parties against each other, we feel that in the absence of any specific finding by the Courts below on either of them, it is unnecessary to refer to the same. It is true that under the Act 1890, the father is the guardian of the minor child until he is found unfit to be a guardian of the minor. In deciding such question, this Court consistently held that the welfare of the minor child is the paramount consideration and such a question cannot be decided merely on the basis of the rights of the parties under the law. This principle is reiterated in Anjali Kapoor (Smt.) vs. Rajiv Baijal, (2009) 7 SCC 322. 14. Though father is the natural guardian in respect of a minor child, taking note of the fact that welfare of the minor to be of paramount consideration inasmuch as the respondent-father got married within a year after the death of his first wife-Kaveri and also having a son through the second marriage, residing in a rural village, working at a distance of 90 kms and of the fact that the child was all along with the maternal grand-father and his family since birth, residing in a Taluka Centre where the child is getting good education, we feel that the District Judge was justified in appointing the appellant maternal grandfather as guardian of the minor child till the age of 12 years.15. The High Court reversed the said conclusion and appointed father of the child as his guardian. It is true that the learned single Judge interacted with both the parties and the child separately and noted that "the child could not be unhappy, uncomfortable and unsafe in the custody of the father". However, there is no material to show that at any point of time the respondent-father had attempted to meet the child when he was in the custody of maternal grandfather. No doubt, it is true that on attaining the age of 12 years by the minor, the father is free to make a fresh application and depending on the welfare and wish of the child, further order has to be passed in the matter of custody. It is said that as on date, the child is aged about 8 years. Our anxiety is that after four years, i.e., after attaining the age of 12 years whether the child would show any inclination to join with his father. It is relevant to note that the maternal grandfather is aged about 63 years and if his sons are married, undoubtedly the child cannot get the same love and affection from him and his family.16. Inasmuch as the child has continuously been living with the maternal grandfather and his family from the date of his birth i.e. 23.03.2003 and getting good education at their hands, taking note of the position of the father of the child who is working 90 kms. away from his house in a rural village, we modify the order of the High Court and permit the appellant grandfather to have the custody of the child Vishwajeet @ Sangharsh till the age of 12 years as ordered by the District Judge.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. If we analyze the above provisions, one thing is clear that in a matter of custody of a minor child, the paramount consideration is the "welfare of the minor" and not rights of the parents or relatives under a statute which are in force. The word "welfare" used in Section 13 of the Act 1956 has to be construed literally and must be taken in its widest sense.Though father is the natural guardian in respect of a minor child, taking note of the fact that welfare of the minor to be of paramount consideration inasmuch as the respondent-father got married within a year after the death of his first wife-Kaveri and also having a son through the second marriage, residing in a rural village, working at a distance of 90 kms and of the fact that the child was all along with the maternal grand-father and his family since birth, residing in a Taluka Centre where the child is getting good education, we feel that the District Judge was justified in appointing the appellant maternal grandfather as guardian of the minor child till the age of 12 years.15. The High Court reversed the said conclusion and appointed father of the child as his guardian. It is true that the learned single Judge interacted with both the parties and the child separately and noted that "the child could not be unhappy, uncomfortable and unsafe in the custody of the father". However, there is no material to show that at any point of time the respondent-father had attempted to meet the child when he was in the custody of maternal grandfather. No doubt, it is true that on attaining the age of 12 years by the minor, the father is free to make a fresh application and depending on the welfare and wish of the child, further order has to be passed in the matter of custody. It is said that as on date, the child is aged about 8 years. Our anxiety is that after four years, i.e., after attaining the age of 12 years whether the child would show any inclination to join with his father. It is relevant to note that the maternal grandfather is aged about 63 years and if his sons are married, undoubtedly the child cannot get the same love and affection from him and his family.16. Inasmuch as the child has continuously been living with the maternal grandfather and his family from the date of his birth i.e. 23.03.2003 and getting good education at their hands, taking note of the position of the father of the child who is working 90 kms. away from his house in a rural village, we modify the order of the High Court and permit the appellant grandfather to have the custody of the child Vishwajeet @ Sangharsh till the age of 12 years as ordered by the District Judge. The above conclusion is based on welfare of the minor as provided in Section 13 of the Act 1956. Since on completion of 12 years, a fresh decision is to be taken about entrusting the custody of the minor child, while modifying the order of the High Court as mentioned above, we issue the following directions about the visitation rights of the father: