Malakala Ramu @ Ramam vs Mammidi Gopalamurthy

Motilal B. Naik, J.—The respondent in O.P.No. 46 of 1992 is the appellant before us. The said O.P.No. 46 of 1992 was filed by the respondent herein who is the father of the minor children, namely Chinna Rao and Chandrasekhar Rao seeking their custody from the appellant herein. For the purpose of convenience the parties are addressed as Petitioner and Respondent as per their array in O.P.No.46 of 1992.

Petitioner married the daughter of the respondent (appellant herein) on 27-3-1985 and they were blessed with two children Chinna Rao and Chandrasekhar Rao, aged 5 and 3 years respectively as on the date of 61ing of the O.P. The respondent, who is the father of the petitioner''s wife Padmavathi, has executed a settlement deed in favour of his late daughter Padmavathi giving 50 cents of land for her life and vested remainder to the minor son Chinna Rao. While so, on 10-4-1990, Padmavathi died of bum injuries and a criminal case u/s 304B IPC was registered against the petitioner and his mother and they were tried in Sessions Case No.204 of 1990. However after full length trial, they were acquitted. When the respondent-petitioner was in police custody, the appellant-respondent took away the property belonging to Padmavathi, including jewellery by force with the assistance of the police and also took the custody of the two minor children. Though the petitioner sought custody of the minor children as well as the property, the appellant herein refused to do so and therefore, the respondent-petitioner has filed OP.No.46 of 1992 for grant of custody of the children and also for delivery of property belonging to the minors.

In the counter filed by the appellant-respondent, the allegations made by the respondent-petitioner were denied. It is stated that the respondent-petitioner was responsible for the death of his daughter Padmavathi under mysterious circumstances and as such a criminal case was filed against the respondent-petitioner and his mother. It is pleaded that the respondent-petitioner is not entitled to seek the custody of the minors as he has no love for the two children. It is stated that the respondent-petitioner married second time. It is further stated that the character of the respondent-petitioner is suspicious as he was cruel to his wife as a result of which she died and therefore, it would not be safe to give the custody of the minor children to the respondent-petitioner. It is urged that as the respondent -petitioner was not able to maintain the minors, the appellant-respondent filed maintenance case in M.C.No3 of 1992 on the file of the III Addl. Judicial First Class Magistrate, Kakinada seeking maintenance. Though the said Court granted maintenance, the respondent-petitioner failed to pay the maintenance amount and therefore, the appellant-respondent filed a petition for attachment of the salary of the respondent-petitioner which was ordered by the lower Court, The appellant-respondent, therefore, pleaded that all these developments would invariably show that the respondent-petitioner has no interest in the welfare of the minors and therefore, custody of the minors cannot be granted to him, as the respondent-petitioner who contracted second marriage may not evince interest in the welfare of the minors.

On the basis of these pleadings, the trial Court framed the following issue:

(1) Whether the petitioner is entitled to be appointed as guardian for the minors as well as the property?

In support of their respective contentions, the respondent-petitioner examined himself as PW1 and got marked Exs. A1 to A3. The appellant-respondent, on the other hand, examined himself as RW1 and examined two more witnesses as RWs2 and 3. No documents were marked on his behalf.

On the basis of the oral and documentary evidence, the trial Court allowed the O.P. and directed the appellant-respondent to handover the possession of the property belonging to the minors, to the respondent-petitioner. The lower court also ordered the appellant/respondent to handover the custody of the minors to the respondent-petitioner.

It is this order of the lower Court which is challenged in this appeal before us.

Sri. V.V.L.N. Sarma, learned counsel appearing on behalf of the appellant-respondent has firstly contended that the O.P. was filed under a wrong provision of law. According to the learned Counsel, when the custody of the minors is sought, the petition fifed u/s 6 of the Hindu Minority and Guardianship Act is not proper. It is secondly contended by the learned counsel that while ordering the custody of the minor children, the paramount consideration is the welfare of the minors. Though the interests of the minors are better served if they were ordered to be remained in the custody of the appellant-respondent the lower court erred in ordering the custody of the minors in favour of the respondent-petitioner. Learned counsel contended, the respondent-petitioner has contracted second marnage and the second wife may not shower the love and affection on . par with natural mother and the minors would find it difficult to adjust in the unfavourable climate and therefore, the lower court ought to have dismissed theO.P. It is thirdly contended that u/s 17(3) of the Guardian and Wards Act, 1890, it is obligatory on the part of the Court to ascertain the wishes of the minors by interviewing them personally and to know their minds as to whether they are willingto part the company of the maternal grandfather and go along with their natural father. It is fourthly contended that all these years the respondent-petitioner did not care to look to the welfare of the minor children. Even after the court granting maintenance, the respondent-petitioner did not pay the same to his children necessitating the appellant-respondent to obtain the attachment of salary of the respondent-petitioner. It is further contended that the respondent-petitioner was cruel to his wife as a result of which she died with bum injuries. Counsel urges before us that if the custody of the minors is ordered to be given to the respondent-petitioner, the minors will not be safe. On the other hand, the minors interest would be better protected if they are allowed to be remained in the custody of the appellant-respondent.

In support of his contentions, learned counsel for the appellant-respondent has taken us to the following decisions reported in Dr. (Smt.) Snehlata Mathur Vs. Mahendra Narain, , Vegesina Venkata Narasaiah Vs. Chintalapati Peddi Raju, , Rosy Jacob Vs. Jacob A. Chakramakkal, , Burri Suryanarayana v. Kona Abbey, ALT Reports 1978 Page 48 Baby Sarojam Vs. S. Vijayakrishnan Nair, , and in Babu Ram v. Keshwa Chand Joshi, AIR 1974 P&H 174.

On behalf of the respondent-petitioner, Sri D. Srinivas, learned Counsel, however, justified the order passed by the lower Court. It is contended that the marriage of the respondent-petitioner with the daughter of the appellant-respondent took place on 27-3-1985 and out of the said wed-lock, two children, namely Chinna Rao and Chandrasekhar Rao were born. In the early hours of 10-4-1990, the wife of the respondent-petitioner died due to bum injuries and a criminal case was also registered u/s 304B of IPC against the respondent-petitioner and his mother, but it ended in their acquittal. At that time, the appellant-respondent has taken away the minor children along with jewellery and since then he is not permitting the respondent-petitioner to take the custody of the children and the property. Counsel further contended that after filing of the O.P.No.46/92 by the respondent-petitioner, the appellant-respondent has wantonly instituted M.C.No 3/92 seeking maintenance for the children from the respondent-petitioner only to wreak vengeance against the respondent-petitioner as the appellant-respondent suspected that the cause of the death of his daughter is her husband who is none other than the respondent-petitioner in this appeal. Counsel stated that though the respondent-petitioner contracted second marriage, during the life time of his first wife he had undergone vasectomy operation which fact was also made known to the second wife and thus contended that the respondent-petitioner has all the love and affection for the children and therefore he sought custody of his children.

In support of his contentions, learned Counsel placed strong reliance on a decision of the Division Bench of this Court, two which one of us (Motilal B. Naik, J) is a member, reported is Smt. Vidya Vs. Anil Kumar Lakotia, .

On an elaborate hearing of the learned Counsel appearing on behalf of both sides, this Court is called upon to examine whether the order of the lower Court granting custody of the two minor children to the respondent-petitioner is proper ?

In so far as the first and foremost submission made by the teamed Counsel for the appellant-respondent that the O.P. was filed under a wrong provision of law, we are not inclined to accept such contention. It is not the case of the appellant-respondent that the lower court has no jurisdiction at all to try the O.P. Merely because the provision of law is wrongly mentioned, that itself cannot be a ground to reject the O.P. as the respondent-petitioner has made out strong circumstances seeking custody of the minors.

Coming to the other contention of the learned Counsel for the appellant-respondent that the Court below as envisaged u/s 17(3) of the Guardian and Wards Act, 1890, ought to have interviewed the minors for personally knowing their minds, we do not think, in each and every case such a course could be resorted to. We are conscious of the fact that as'' on the date of filing the O.P., the minors were stated to be aged 5 and 3 years respectively. The O.P. was filed in the year 1992 and by the time this appeal came up for consideration, we are in the year 1997. So, nearly five years period has been completed and the minors are now aged about 12 and 10 years respectively. It shall be borne in mind that these two minors were taken into custody by the appellant-respondent after the arrest of the respondent-petitioner as a result of registering a criminal case against him in the year 1990 in connection with the death of his wife Padmavathi on account of bum injuries. At that time, the two minors were hardly three and one year old respectively. Having been in the care and custody of their maternal grandfather for all these seven years it would be natural for the minors to be more inclined towards their maternal grandfather. The likelihood of the minors being tutored to speak on his behalf by the appellant-respondent cannot also be ruled out. It is in this back ground that we are not inclined to call the minor children for ascertaining their views. We, therefore, reject the contention of the learned Counsel for the appellant-respondent in this behalf.

The decisions cited by the learned Counsel for the appellant-respondent only emphasise that while granting custody of the minor children, the only paramount consideration is the welfare of the minors. In the instant case, the appellant-respondent who is the maternal grandfather of the minors, claims to retain the custody of the minors. On the other hand, the respondent-petitioner who is the natural father seeks the custody of the minors along with the property.

In the evidence adduced on behalf of the respondent-petitioner, the respondent-petitioner has categorically stated that he has been making efforts to get the custody of the children but the appellant-respondent has been denying the custody of the minors. He has also deposed that after his arrest in the year 1990 consequent to the death of his wife due to burn injuries, the appellant-respondent has forcibly taken away the minor children and certain ornaments which belonged to his wife and since then the appellant has kept the minor children with him. He further deposed that he contracted second marriage but during the life time of his first wife, he underwent vasectomy operation and therefore, there are no chances of begetting any children through his second wife. The respondent-petitioner has also deposed that he is an employee in the South Central Railways at Vijayawada whereas the appellant-respondent is an agriculturist and makes his livelihood only on agricultural operations.

The appellant-respondent has examined himself as RW1 and has examined RWs 2 and 3. The lower Court discarded the evidence of RWs 2 and 3 holding that they deposed beyond the scope of the pleadings as they spoke about tie conduct of the respondent-petitioner that he was habituated to drinking and harassing his wife. In our view, the lower Court has rightly discarded the evidence of RWs 2 and 3.

The appellant-respondent who examined himself as RW1 no doubt, has stated that the interests of the minors would be better served if they are continued to remain in his custody and he is taking care of the interests of the minor children. The appellant has also deposed that the respondent-petitioner was cruel towards his wife and as a result of which she died and it is only the respondent-petitioner who was responsible for her death.

It is seen that as per the provisions u/s 6A of the Hindu Minority and Guardianship Act, 1956, father becomes the natural guardian of minors once they complete the age of five years but, however, as per the provisions u/s 13 of the Act, the welfare of the minors is of paramount consideration while ordering their custody.

The appellant-respondent is the maternal grandfather of the minors and the respondent-petitioner is the natural father and guardian of the minors. The respondent-petitioner has instituted the O.P.No.46 of 1992 seeking custody of the minor children from the appellant-herein and further sought a consequential relief of delivery of the petition schedule property to him being the natural guardian of the person and property of the minors.

As has been made clear, while granting custody of the minor children, the paramount consideration is the welfare of the minors. In this case, the appellant-respondent has not placed before us any material to hold that the interests of the minor children would be jeopardised if the custody of the minor children is granted to their natural father respondent-petitioner. On a careful scrutiny of the evidence on record also does not give an impression that the interests of the minors would not be served if they are given in custody to the respondent-petitioner. The respondent-petitioner is gainfully employed in South Central Railways at Vijayawada where there are good schools. If the children are given in custody to the respondent-petitioner, he would admit them in good school at Vijayawada for imparting education and be able to provide reasonable requirements for their upbringing. On the other hand, the appellant-respondent who makes out his livelihood on agriculture may not be able to provide good education to the minors and that would be an impediment to their career.

For all the above reasons, we are inclined to hold that the respondent-petitioner is entitled to seek the custody of the minor children. We further clarify that the respondent-petitioner is also entitled to be the guardian to the properties of the minor Chinna Rao.

In the result, the appeal is dismissed, the order of the lower Court is confirmed to the extent indicated above. No costs.