Manish Kumar Tripathi vs Laxmi Kant Shukla and another

Appellant has filed this appeal against the order dated 30.07.2012 passed in Misc. Case No.39/12. By the aforesaid order, the trial Court

rejected the application filed by the appellant under Section 10 of Guardian and Wards Act, 1890. Appellant sought a relied that he be given

custody of girl Km. Ayushi Tripathi. The appellant is the uncle of the girl. Father of the girl, who was the brother of the appellant, has died.

The appellant pleaded that mother of the girl has remarried on 12.03.2007 after death of her husband. Father of the girl was the brother of the

appellant. He was died on 09.03.2003 due to M.A. No. 2644 of 2012 cancer. The girl is living with the mother and father of her mother i.e. nana

and nani (grandfather and grandmother). Mother of the girl performed second marriage with a divorcee namely Ravishankar Gautam. The

respondents denied the pleadings of the appellant and pleaded that the girl has been living with her nana and nani. Mother of the girl is also living

with the girl. After performing second marriage, the mother of the girl is living with her father and mother. The appellant has two sons. The father of

the girl deposited Rs. 14 lacks in the bank. However, the present appellant had withdrawn the aforesaid amount and did not pay any amount

towards the welfare of the girl for whom he sought guardianship. The real intention of the appellant is to grab the property which would come in the

name of the girl after death of her father. The trial Court rejected the application.

Learned counsel for the appellant admitted the fact that the girl, at present, is aged about 16 years. Learned counsel has submitted that the

appellant is the uncle of the girl. Mother of the girl has already remarried. Hence, looking to the welfare of the child, it is obligatory on the part of

the Court to grant custody of the girl in favour of the appellant. In support of aforesaid contentions, she relied on the following judgments:

A. Sheila B. Das vs P. R. Sugasree, (2006) 3 SCC 62 and

B. Shri Paramjit Singh Lamba vs Smt. Prabhjot Kaur, (2004) AIR (Delhi) 318.

Pleadings of the parties have already been mentioned above in the judgment. The appellant in his evidence deposed the same facts as pleaded

by him in his plaint. He further pleaded that the mother of the girl Km. Ayushi Tripathi has remarried. Hence, it would not be proper that the girl be

permitted to live with the father and mother of the mother of the girl i.e. nana and nani. He further deposed that he is working as Sales Executive in

a private company and he is getting salary of Rs.34,350/- per month. He has two children, i.e. one son and one daughter. Both are studying in

schools. He is capable to provide proper education to the girl. Another witness Arun Kumar Pandey deposed that the mother of the girl has

remarried and she is living with her husband. Another witness Ramakant Dwivedi also deposed the same facts. He further deposed that the

appellant has sufficient means to maintain the girl.

The respondents in their evidence deposed that after death of the father of the girl, the appellant and his family members did not come to see the

girl. Laxmikant Shukla deposed that my daughter (mother of the girl) is working as a teacher in Kistukala Mission Higher Secondary School,

Satna. My son Dharmendra Shukla is getting salary of Rs.25,000/- per month and I am getting Rs.22,000/- per month. Father of the girl had

deposited an amount of Rs.14,00,000/- in the bank. He requested the appellant to deposit Rs. 5,00,000/- in the name of my daughter and

Rs.2,00,000/- in the name of the girl, however, the appellant had withdrawn the money and did not deposit any amount. Smt. Meenakshi Gautam,

mother of the girl, deposed the same facts that she is looking after the girl-Aishwarya. After death of my husband I have remarried. She further

deposed that after death of my husband, the appellant did not come to meet the girl and he had withdrawn the amount of Rs.14,00,000/-

deposited by the father of the girl in the bank. He did not give any amount to me or the girl. Two more witnesses i.e. Vikas Kumar Dwivedi and

Devendra Singh Bhadauriya have also been examined on behalf of the respondents. They deposed that the appellant did not come to see the girl.

Neither he had taken any care of the girl.

The Apex Court in the case of Purvi Mukesh Gada Vs. Mukesh Popatlal Gada and another, (2017) 8 SCC 819 has held that welfare of minor

is paramount consideration while considering the case of custody of minor. The Apex Court has held as under:-

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 June 17, 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:-

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

Hon''ble Apex Court 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.

The aforesaid principle has also been reiterated by the Hon''ble Apex Court in the case of Sheila B. Das vs P. R. Sugasree, (2006) 3 SCC 62,

case law cited by learned counsel for the appellant. The principle of law in regard to custody of female child is that in giving custody of a female

child the paramount consideration by the Court is welfare of the child. In the present case, the appellant in the uncle of the child (girl). She is aged

near about 16 years. Since birth, she has not lived with the appellant. She has been living with her nana and nani. The mother of the girl has

remarried, but, it is also a fact that the girl is getting proper education. She has not desired to live with the appellant. The appellant himself admitted

that after death of his brother i.e. father of the girl, he did not take any step/effort to meet with the girl. Neither he met with the girl. There is also

allegation that the appellant had withdrawn an amount of Rs.14 lacs from the bank account of the father of the girl and he had not paid the

aforesaid amount to the mother of girl or the girl.

Looking to the aforesaid facts of the case, in our opinion, the trial Court has rightly dismissed the application filed by the appellant.

Consequently, we do not find any merit in this appeal. It is hereby dismissed.

No order as to costs.