Case: Anjali Kapoor Vs. Rajiv Baijal

The facts of case in brief are: - the respondent/Rajiv Baijal, had got married to the appellants daughter/Meghana on 16.01.1998 and lived together in Pune (Maharashtra). Smt. Meghana went to Indore to the appellants residence for delivery of the child. She was admitted in Noble Hospital, Indore and gave birth to a female child on 20.05.2001, but she did not survive to see the new born baby. As the child was born premature, she was kept in incubator in the hospital for nearly 45 days. After discharge from the hospital, the infant was brought to the residence of the appellant, and she was named Anagh. Add to the agony, just in a span of two months, appellant lost her husband also on 29.07.2001The Respondent herein filed an application under Guardian and Wards Act before the Family Court, inter-alia asserting that being the father of the child Anagh, he is her natural guardian and therefore, entitled to the custody of the child. In support of the claim made, the respondent had asserted before the Family Court that Anagh was not properly looked after by the appellant and it was perilous for the child to continue in the custody of the appellant. The respondent had also contended that after the child was brought to the residence of the appellant he was repeatedly requesting the appellant and her family members to hand over the custody of the child to him, since the appellant is unable to take care of the welfare of the minor childthe reply filed, the appellant had contended, that, the respondent had not come to see his daughter even once when the child was in the intensive care unit in the hospital. She had further contended that the respondent is living separately from his parents and he has to be away from his home town most of the time in a month in view of the nature of the job he is involved in. It was also contended that the financial position of the respondent is not good and he had taken loans from several persons, and in order to repay the same, on many occasions, he had asked for financial help from the appellant and her family members. In a nutshell, her claim before the Family Court was that it is not conducive for the welfare of the child to be in the company of the respondentThe Family Court, Indore in its order dated 18.3.2004, has observed that, it cannot be concluded that the respondent although has borrowed money from several persons, will not be in a position to bring up her daughter and bear her educational expense. The Court has also taken note of the fact that the child/Anagh is taken care of by appellants brother-in-law, who has two grown-up children, and therefore, it cannot be said that the respondent will not be in a position to take care of the welfare of the child. Therefore, giving priority to the welfare of minor child, it is advisable to give custody of minor child - Anagh to the respondent, where she will be looked after well by respondent and his family members. Aggrieved by the said order, the appellant had carried the matter to the High Court, by filing Misc. Appeal No.750 of 2004The High Court in its judgment has held, that there are no compelling reasons on the basis whereof the custody of the child should be denied to her father/respondent. Respondent has been making efforts right from the infancy of the child for guardianship of the child which was strongly resisted by his mother-in-law. The Court has also taken note of the fact that, the appellant has lost her husband and has, therefore, suffered a great financial set back. Therefore, for better upbringing and welfare of the child, her custody should be entrusted to her father. Aggrieved by the said judgment, appellant is before us

Reasoning:
14) In our view, the observations made by the Madras High Court cannot be taken exception by us. In fact those observations are tailored made to the facts pleaded by the appellant in this case. We respectfully agree with the view expressed by the learned Judges in the aforesaid decision18) Bearing these factors in mind, we proceed to consider as to who is fit and proper to be the guardian of the minor child Anagh in the facts and circumstances of this case. In the present case, the appellant is taking care of Anagh, since her birth when she had to go through intensive care in the hospital till today. The photographs produced by her along with the petition, which is not disputed by the other side would clearly demonstrate, the amount of care, affection and the love that the grandmother has for the child having lost only daughter in a tragic circumstances. She wants to see her daughters image in her grand child. She has bestowed her attention throughout for the welfare of reminiscent of her only daughter, that is the minor child which is being dragged from one end to another on the so called perception of judicial precedents and the language employed by the legislatures on the right of natural guardian for the custody of minor child20) On the other hand, considering the evidence of the respondent, it seems to us that since he has borrowed money from several persons and since he has a meager income he may not be in a position to give comfortable living for the child . In spite of notices issued to him, he has not appeared before the Court personally or through his counsel which shows his lack of concern in the matter. It is also brought to our notice that he has got married for the second time and has a child too, and the minor child might have to be in the care of step mother, specially the father being a businessman, he has to be out of the house frequently on account of his business21) 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 the Courts are expected to give paramount consideration to the welfare of the minor 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 custody of the child