Bholaram vs Smt. Sukala Bai

Appellant has filed this appeal against the judgment dated 24.06.2017 passed by Principal Judge Family Court, District Balaghat (M.P.) in MJC

No.06/2017.

Appellant has filed an application under Sections 7, 10 & 25 of Guardian and Wards Act, 1890 for the custody of his daughter Ku. Vaishali aged about

6 years and son Rishabh aged about 1.5 years. He pleaded that the marriage of the appellant was solemnized with Kavita @ Pavita on 29.04.2004.

Kastura Bai was the second wife of the appellant. She was died on 19.05.2016 due to illness. The children born form the second marriage are living

under the custody of their grand mother (Nani) and she is aged about 75 years. She has no property. Hence, she could not properly look after the

children.

It is further pleaded by the appellant that the appellant has been working as Laboratory Assistant in Government Service and posted at Government

High School, Devalgaon. He is earning Rs.26410/- per month. Hence, he would properly look after the children. He is also, the natural guardian.

Grand mother of the children did not file any reply before the trial Court.

On behalf of the appellant, he filed his affidavit and pleaded that his second wife died due to ailment and he is the father of the children i.e. son and

daughter. He is working as Laboratory Assistant in Government Service and posted at Government High School, Devalgaon. He is capable to

maintain the children. First wife of the appellant Kavita @ Pavita also filed her affidavit. She deposed that she agreed for the second marriage of the

appellant as there were no children born from her, hence, she permitted the appellant to perform second marriage, with the second wife Kastura Bai

two children were born. She died due to some ailment. Kavita @ Pavita pleaded that she would look after the children and provide them proper

education.

The trial Court dismissed the application on the ground that the appellant married with another lady and she would not look after the children properly.

Hence, it is not proper to give the custody of children to the appellant.

Being a father the appellant is the natural guardian of the children. It is well settled principle of law that welfare of children is the paramount

consideration in considering application for custody of minor children. The Apex Court in the case of Purvi Mukesh Gada Vs. Mukesh Popatlal Gada

and another (2017) 8 SCC 819 has held as under:-

10.5. The High Court has discussed the law on custody of children and explained the 'welfare principle', which is the paramount consideration while

deciding custody matters is to see where the welfare of children lies. Applying this principle, the direction is given to restore the custody of the

children to the respondent after the end of academic term in April or May 2016.

We may say at the outset that though the 'welfare principle' is correctly enunciated and explained in the impugned judgment, no reasons are given

as to how this principle weighed, on the facts and circumstances of this case, in favour of the respondent. Instead two main reasons which have

influenced the High Court are: (i) earlier detailed orders are passed by the Additional ACMM allowing the respondent to retain the custody; and (ii)

the appellant here had not given access of children to the respondent even during weekend, in spite of orders passed by the High Court.

After hearing the counsel for the parties at length, we are of the opinion that the matter is not dealt with by the High Court in right perspective.

Before supporting these comments with our reasons, it would be apposite to take note of certain developments from 17-6-2015, the date on which the

respondent had himself handed over the children to the appellant, till the passing of the orders by the High Court. It is also necessary to state the

events which took place during the pendency of these proceedings.

Section 7 of Guardians and Wards Act 1890 reads as under:-Â Â

Power of the Court to make order as to guardianship.

(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made

(a) appointing a guardian of his person or property or both, or

(b) declaring a person to be such a guardian the Court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or

declared by the Court.

(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or

declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased

under the provisions of this Act.

The aforesaid section has been considered by the Apex Court in the case of Ruchi Majoo Vs. Sanjeev Majoo, (2011) 6 SCC 479 and has held as

under:-

Interest and welfare of the minor being paramount, a competent court in this country is entitled and indeed duty bound to examine the matter

independently, taking the foreign judgment, if any, only as an input for its final adjudication. Decisions of this Court in In Dhanwanti Joshi v. Madhav

Unde 1998(1) SCC 112 and Sarita Sharma v. Sushil Sharma (2000) 3 SCC 14 (supra) clearly support that proposition.

In the present case the respondent is the grand mother (Nani) of the children, who is aged about 75 years. There is no evidence on record about her

financial status. She did not appear before the Court neither she filed reply or tendered her evidence. Merely, on the basis of apprehension the trial

Court has rejected the application of the appellant on the ground that the appellant had re-married and the first wife would not look after the children.

The first wife Kavita @ Pavita is present before the Court along with the appellant. She has stated that she would look after the children very well.

In this view of the matter, appeal filed by the appellant is hereby allowed. The impugned judgment and decree passed by the trial Court is hereby set

aside. Suit filed by the appellant is hereby allowed. It is ordered that the respondent shall hand over the custody of children Ku. Vaishali and Rishabh

to the appellant.

The appellant shall permit the respondent to meet with the children once in a month.

No order as to costs.