Loknath vs Rukmani Bai

Sanjay K. Agarwal, J.—Invoking the appellate jurisdiction of this Court u/s 47(C) of the Guardians and Wards Act, 1890 (for short ''the Act, 1890'') the appellant/father (Loknath) has preferred this appeal challenging the impugned order dated 10.2.2005 passed by the Civil Judge, Class-I, Baloda Bazar, District - Raipur in Guardians and Wards Case No. 02/2004 (Rukhmani Bai v. Loknath) on the application u/s 25 of the Act, 1890 granting custody of minor male child Poonam Prakash, who was aged about two and a half years. The facts necessary for the disposal of this appeal are as under:

(2.1) The respondent/mother (Rukhmani Bai) filed an application u/s 25 of the Act, 1890 seeking custody of Poonam Prakash stating inter alia that she was married with Loknath in the year 1999 and they were blessed with one son Poonam Prakash and one daughter Khileshwari. It was further pleaded that the appellant/father was not taking proper care of Poonam Prakash and despite, the legal process issued by the Sub Divisional Magistrate (SDM), Bilaigarh, Poonam Prakash was not produced before the S.D.M.

(2.2) It was alleged that the appellant was ill treating her due to demand of dowry and she has been thrown out of the matrimonial house by the appellant and therefore she is residing separately with her parents at her parental house. Proceedings u/s 498-A is pending consideration. Since the appellant/father is not managing the ward properly as well as she is deprived of her love and affection, therefore the custody of Poonam Prakash be given to her.

The present appellant, though served with a notice, did not file any written statement before the trial Court and therefore the trial Court proceeded, declaring the appellant as ex parte. The applicant neither filed written statement nor adduced any evidence in support of his case.

The respondent/mother examined herself before the trial Court stating inter alia that the appellant/father is not taking proper care of her son Poonam Prakash and proceedings u/s 498A of the I.P.C. is pending against him and therefore she is entitled for the custody of the ward.

The trial Court vide its impugned order dated 10.2.2005 granted the application u/s 25 of the Act, 1890 mainly on the ground finding that the evidence of the mother has remained uncontroverted and minor Poonam Prakash is in need of mother/respondent to look him after and accordingly directed for granting custody of the child to respondent/mother.

Shri Paranjpe, learned counsel appearing for the appellant/father would submit that since the minor Poonam Prakash was residing at village Noharpali, Tahsil. - Bilaigarh, District - Raipur and thus the District Court, Raipur had the jurisdiction to entertain any such application u/s 25 of the Act, 1890 and certainly, not the Civil Court at Baloda Bazar. He alternatively submits that even otherwise, the trial Court has failed to consider that in the matter of custody of minor child the paramount consideration should be the welfare of the child. The trial Court has failed to consider this aspect of welfare of the child while granting the order directing custody of the child Poonam Prakash to the respondent/mother and thus the impugned order passed by the trial Court is liable to be set aside.

I have heard learned counsel for the appellant and considered the submissions made hereinabove and perused the record of the trial Court.

Section 7 of the Act, 1890 provides for the power of the Court to make order as to guardianship. Sub-section (1) of Section 7 provides that where the Court is satisfied that it is for the welfare of a minor that an order should be made appointing a guardian of his person or property or both or declaring a person to be such a guardian, the Court may make an order accordingly.

Section 17CD & (2) and Section 25 of the Act, 1890 reads as under:

Matters to be considered by the Court in appointing guardian--(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this Section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor the wishes, if any, of a deceased parent, and any existing or previous relations of the propose guardian with the minor or his property.

Title of guardian to custody of ward--(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.

(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882 (10 of 1982).

(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.

Thus, from a bare perusal of the provisions of Section 17 read with Section 25(1) of the Act, 1890, one thing is clear that in the matter of custody of the child paramount consideration is welfare of the minor and not the status of the parents or relatives. The word ''welfare'' used in Sections 7, 17 and 25 has to be construed literally and must be taken in its wider sense.

The Supreme Court in a decision reported in Mausami Moitra Ganguli Vs. Jayant Ganguli, has held that it is the welfare and interest of the child and not the rights of the parents which is the determining factor for deciding the question of custody. It was the further held that the question of welfare of the child has to be considered in the context of the facts of each case and decided cases on the issue may not be appropriate to be considered as binding precedents.

u/s 17 of the Act, 1890 the Court is duty bound to find more suitable person amongst the rival claimants. The moral and ethical welfare of the child must also weigh with the court as well as its physical well-being. A Division Bench of this Court in Shailesh Khandelwal Vs. Meenakshi Khandelwal, has held in para 13 as under:

Section 6 of the Act of 1956 provides that the natural guardian of a Hindu minor, in case of a boy or an unmarried girl is the father and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. As per Section 13, of the Act of 1956, in the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration. u/s 17 of the Act of 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. As per Section 17(3) of the Act of 1890; if the minor is old enough to form intelligent preference, the court may consider that preference. Scope of Section 17 of the Guardians and Wards Act is that the court has to see who of the several applicants 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 Supreme Court in Gaytri Bajaj Vs. Jiten Bhalla, in para 12 and 13 held as under:

The law relating to custody of minors has received an exhaustive consideration of this Court in a series of pronouncements. In Gaurav Nagpal Vs. Sumedha Nagpal, the principles of English and American law in this regard were considered by this Court to hold that the legal position in India is not in any way different. Noticing the judgment of the Bombay High Court in Saraswatibai Shripad Ved Vs. Shripad Vasanji Ved, ; Rosy Jacob Vs. Jacob A. Chakramakkal, and Thrity Hoshie Dolikuka Vs. Hoshiam Shavaksha Dolikuka, this Court eventually concluded in paragraph 50 and 51 that:

That when the Court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The Court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mousmi Moitra Ganguli''s case the court has to give due weightage to the child''s ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important that the others.

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 governs the rights of the parents and guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parent patriae jurisdiction arising in such cases.

A bare perusal of the impugned order would show that the trial Court has failed to consider the welfare of the ward Poonam Prakash while considering and granting the application u/s 25(1) of the Act, 1890, even though, the appellant failed to appear pursuant to the summons issued by the Court, and neither filed return nor adduced any evidence but in that situation also the trial Court was duty bound to consider the welfare of the child/ward.

In Nil Ratan Kundu and Another Vs. Abhijit Kundu, the Supreme Court has held that the Court while dealing with custody case is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents, which reads as under:

In our judgment, the law relating to custody of a child is fairly well-settled and it is this : in deciding a difficult and complex question as to the custody of a minor, a Court of law should keep in mind the relevant statutes and the rights flowing therefrom. But: such cases cannot be decided solely by interpreting legal provisions. It is a humane problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child''s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conductive to the welfare of the minor.

In a decision reported in C.N. Ramappa Gowda Vs. C.C. Chandregowda (Dead) by L.Rs. and Another, the Supreme Court, while considering the circumstances wherein the written statement was not filed by the defendant it was held that the Court is duty bound to adjudicate even in absence of complete pleadings or in presence of pleadings of only one party and held as under in para 18:

The learned counsel in this context has specifically placed reliance on the observations of this Court in Balraj Taneja which is of great relevance and value, wherein it was held as follows:

As pointed out earlier, the court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court. In a case, specially where a written statement has not been filed by the defendant, the court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the court''s satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression ''the court may, in its discretion, require any such fact to be proved'' used in sub-rule (2) of Rule 5 of Order 8, or the expression ''may make such order in relation to the suit as it thinks fit'' used in Rule 10 of Order 8.

Thus, in the considered opinion of this Court the trial Court has committed a serious legal error in granting the application without considering the welfare of the child, which must have been the paramount consideration for granting the custody of the ward. Resultantly, the impugned order dated 10.2.2005 passed in Guardians and Wards Case No. 02/2004 is set aside. The matter is remanded to the concerned District Judge/District Court within the meaning of Section 4(5)(b)(ii) of the Act, 1890 for decision afresh, strictly in accordance with law, following the observations made by the Supreme Court in the afore cited cases, within a period of three months from the date of receipt of a copy of this order after noticing the parties.