Shyam Sunder Mishra and another vs Jagdish Pandey

Sanjay Yadav, J.—This appeal u/s 47 of the Guardian and Wards Act, 1890 (for short the Act of 1890) is directed against the order dated 28.7.2001 passed by First Additional District Judge, Katni; whereby, an application preferred by the appellants u/s 10 read with Section 12 of the Act of 1890 for custody of Siddharth has been rejected. Appellants are paternal grandfather and father of Siddharth who lives with respondent, the maternal grandfather. He is borne out of wedlock of appellant No. 2 and Sunita. Sunita died on 26.1.2004 under suspicious circumstances; where for appellant No. 2 was proceeded against for an offence under Sections 304B and 498A, Indian Penal Code vide S.T. No. 66/2004 and has been convicted for the said offence. An appeal there against is pending before the High Court. That, during pendency of criminal case against the appellant No. 2, respondent took-away the child, his grandson, along with him who was 31/2 years of age at that time.

That during pendency of appeal against the conviction, the appellants filed an application u/s 10 read with Section 12 of the Act of 1890 for guardianship and custody of Siddharth on the ground that respondent, the paternal grandfather has taken away the child forcefully but, is not able to maintain him properly and that his studies will be adversely affected.

The application was opposed by the respondent. The parties led their respective evidence; whereafter the trial court on the basis of evidence on record and taking into consideration the fact that the appellant No. 2 though father, since is convicted for an offence under Sections 304B and 498A, Indian Penal Code and that the child is being properly kept by maternal grandfather who is looking after his well being and after recording a finding that appellant No. 2 father of Siddharth has performed a second marriage, rejected the application. Aggrieved the appellants have filed this appeal.

After hearing the learned Counsel for the appellants at length and after perusing the record, we are of the considered opinion that appeal deserves to be dismissed.

True it may be, as urged by learned Counsel for the appellants that, being the father (appellant No. 2) he is a natural guardian. We are, however, not convinced with the contentions that being a natural guardian he also has the right to have custody. It is not necessary that under all circumstances father has a right of custody. Welfare of the child being the paramount consideration the circumstances are required to be seen in respective cases. (Please see Shyamrao Maroti Korwate Vs. Deepak Kisanrao Tekam, and Dr. Ashish Ranjan Vs. Dr. Anupama Tandon and Another,

In the case at hand record reveals that father (appellant No. 2) herein was proceeded against and prosecuted for an offence under Sections 304B and 498A, Indian Penal Code and has been sentenced. True it is that, the sentence has been suspended in an appeal preferred by appellants No. 2 it, however, does not lead to an inevitable conclusion that he would succeed in the appeal. In case of non success appellant No. 2 would have to undergo a sentence. Even otherwise record reveals that the respondent maternal grandfather is having custody of child from the time he was 31/2 years of age, i.e., since 2004 and he is prosecuting his studies under the guidance and there is no material on record to establish that the child is not kept properly and is not being looked after properly. Furthermore, the appellant No. 2 has performed second marriage.

In view whereof, we are not inclined to interfere with the order passed by the Trial Court. In respect of visitation right the appellants are free to move the respective forum. On such application being filed, it is directed that same shall be dealt with in accordance with law without being influenced by the order rejecting the claim for custody. With these observations the appeal fails and is hereby dismissed.