Case: Shyamrao Maroti Korwate Vs. Deepak Kisanrao Tekam

2. Brief facts:(a) On 03.06.2002, the marriage of the respondent was solemnized with Kaveri, the daughter of the appellant herein. Out of the said wedlock, on 23.03.2003, a son, namely, Vishwajeet @ Sangharsh was born. After giving birth to son, on the same day, the respondents wife died due to excessive bleeding. Vishwajeet is residing with the appellant-maternal grandfather and his family since his birth. After the death of his wife, the respondent contracted second marriage and also has a son from the second marriage.(b) On 07.08.2003, the appellant-maternal grandfather of the minor filed an application in the Court of District Judge II, Yavatmal, Maharashtra under Section 7 of the Guardians and Wards Act, 1890 (hereinafter referred to as Act 1890) being M.J.C. No.10 of 2003 for appointing him as guardian of the minor Vishwajeet. The said application was opposed by the respondent and, on 15.10.2003, he also filed an application under Section 25 of the Act 1890 being M.J.C. No.12 of 2003 for the custody of his son. The District Judge by a common judgment dated 16.04.2007 in both the proceedings, allowed the application filed by the appellant herein and appointed him as a Guardian of Vishwajeet till he attains the age of 12 years and directed him to deposit the amounts inheritable by the minor due to the demise of his mother, in any Nationalized Bank in Fixed deposit in the name of minor, which may be renewed from time to time till he attains majority and also directed that nobody can withdraw the principal or interest amount without prior permission of the Court. The District Judge further directed the newly appointed guardian to allow the respondent-father to meet the minor once in a month. The application filed by the respondent was dismissed by the District Judge with the liberty to file such application after completion of the age of 12 years by the minor.(c) Aggrieved by the said order, the respondent herein filed First Appeal No.501 of 2007 in the High Court of Bombay, Nagpur Bench, Nagpur. On 17.10.2007, the learned single Judge of the High Court allowed the appeal filed by the respondent herein and directed the appellant herein to hand over the custody of the child to the respondent. Challenging the said order, the appellant has preferred this appeal by way of special leave petition before this Court.

Reasoning:
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: