Partly allowed

Shital Ramanlal Bafna v. Pushpabai Prakashchandra Surana

Bombay HC17 Apr 2013AO/19/2012

Case brief

AI extract

What is this about?

In an appeal from an order under the Guardians and Wards Act, 1890, the high court examined the appointment of a grandmother as guardian of a minor's property and granted custody rights. The court upheld the appointment for property but stayed the extended custody rights granted during vacations, noting the minors' unwillingness to reside with the grandmother, while allowing limited visiting right

What did the court decide?

The appointment of the grandmother as guardian of the minors' property was upheld. Custody rights during long holidays exceeding two weeks were set aside, but limited visiting rights were maintained.

Shital Ramanlal Bafna Vs Pushpabai… — Child Custody and Guardianship | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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APPEAL FROM ORDER NO. 19 OF 2012 WITH CIVIL APPLICATION NO. 1598 OF 2012

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Shital Ramanlal Bafna ...Appellant

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Versus

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Pushpabai w/o Prakashchandra Surana ...Respondent

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Mr. A.R. Syed h/f Mr. Shailesh P. Brahme, advocate for appellant Mr. Rahul Joshi, advocate for the respondent

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CORAM : S. S. SHINDE, J. DATED : 17 th APRIL, 2013

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PER COURT :-

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This Appeal from Order is filed challenging the common judgment and order dated 5.10.2011 in Misc. civil application No. 89 of 2008 and Misc. Civil application No. 149 of 2010. Misc. civil application No. 89 of 2008 was filed by the appellant herein under sections 7, 8 and 10 of Guardians and Wards Act, 1890 and Misc. Civil application No.149 of 2010 was filed by the respondent herein under Section 25 of the said Act, before the learned District Judge at Jalgaon.

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The appellant Sheetal Ramanlal Bafna had filed Misc. Civil

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Application No. 89 of 2008 under Sections 7, 8 and 10 of the said Act for appointment of herself as a guardian of minors in respect of their persons and property. The objector i.e. the respondent herein Pushpabai Surana, grandmother of the minors has also claimed the sale relief. She has also filed Misc. Civil application No. 149 of 2010 under Section 25 of the said Act for custody of the minors. Therefore, it appears that, both the applications are disposed of by common judgment by the District Judge, Jalgaon.

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Learned counsel appearing for the appellant submits that, the learned Judge has committed error and perversity in appointing the respondent as guardian of movable properties of the minors and permitting her to have custody of the minors for 7 days during vacation exceeding two weeks. It is submitted that during personal interview of the minors, it is revealed that they were not ready to go with the respondent. In view of the findings recorded in paragraphs No.7 of the judgment that, the children were not prepared to go with the respondent, it was not desirable to permit the respondent to have custody of the children during the vacation.

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It is submitted that conduct of the respondent was objectionable during the trauma suffered by appellant and the children. The respondent could not adduce any evidence to show her bonafides

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when the minors were under medical treatment. It is submitted that, the learned Judge failed to appreciate that deceased parents of the minors had separated from the respondent. The relation between deceased parents and the respondent were strained. The respondent and uncle of the children Jeevan did not bother to prove any sort of assistance immediately after the accident and especially when number of death took place. The respondent is not entitled to claim custody of the minors even for few days. It is submitted that the learned Judge ought to have granted custody considering the welfare of the minors, their mental and physical condition. Therefore, relying upon the grounds taken in the appeal from order, annexures thereto, relevant provisions of Guardians and Wards Act 1890, counsel appearing for the appellant submits that this appeal from order deserves to be allowed.

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Learned counsel for the respondent vehemently opposed the appeal from order and also the civil application and submitted that the respondent being grandmother of the minors has every right to be appointed as guardian of the minors and also custody of the minors deserves to be with the respondent grandmother.

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I have given careful consideration to the submissions of the

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counsel appearing for the parties. At the outset, it would be relevant to

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deal with the issue of custody. The learned District Judge in para 7 of the judgment has discussed about the custody of the children. It appears that both the minors were interviewed by the learned District Judge in the chamber. It further appears that even grand-mother was called in the chamber and she was given an opportunity to have a dialogue with the minors. Accordingly she had talk with the minors but they refused to go with the grandmother.

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This court on 7.5.2012, interviewed the children in the chamber in order to ascertain their wishes as to whether they are willing to go alongwith their grandmother. This Court has recorded that, “Both the children, in no uncertain terms, have informed that they are unwilling to go with respondent-grandmother.” This court in paragraphs 6 and 7 of the said order observed thus:-

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“6. It is well established principle that welfare of the minors is of paramount consideration in custody matters. The wishes of the minor children are also required to be taken into account. Considering the desire expressed by the minor children, I am of the opinion that order passed by District Judge-3, Jalgaon, extending custody rights during the period of long holidays/vacations to Respondent-grandmother, needs to be stayed.

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7. The directions issued by District Judge-3, Jalgaon, in paragraph 16(1) and (2) of the order dated 05.10.2011 in Misc.

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Civil Application No. 149 of 2010 with Misc. Civil Application No. 89 of 2008, stand stayed until further orders.”

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The District court has also considered who can be the lawful

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guardian of the minors to look after the properties immovable and moveable of the minors. The District Court has extensively considered the material placed on record including the evidence of the parties. In para 15 of the impugned judgment, the District court has considered whether two separate guardians can be appointed in respect of the person and the property of the minors and relying upon the exposition of the Supreme Court in the case of Deviprasad Bimanchandra Mukherjee vs. Sandhyadevi (Smt) w/o Deviprasad Mukharjee &

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Anr, reported in 1987 (1) Bom.C.R. 83, it has been held that, two separate guardians can be appointed in respect of person and property of the minors. In para 14, the court has recorded the statement of the applicant that the applicant is not interested in the property of the minors. The objector is grandmother of the minors. Presently immovable property is in her possession. Some of the movable property also appears to have taken by her. She is only person who can take best care of the property of minors and account for the income thereof and preserve it for the best interest of the minors. She too has love and affection to the children and in order to

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see their welfare, it is desirable to appoint her as the guardian of the

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property of the minors.

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Therefore, in my considered opinion, the District Court has considered the legal position and rightly appointed objector grandmother, as lawful guardian to look after the property of the minors. The statement of counsel appearing for the revision applicant herein that, the applicant should be appointed as guardian to look after immovable property cannot be accepted. In the light of the relevant provisions, the grandmother from the paternal side i.e. objector stands at Sr. No.1, and the learned District Judge has rightly appointed her as lawful guardian to look after the immovable and movable properties of the minors. Therefore, so far as the order passed by the learned District Judge, Jalgaon appointing the objector grandmother, as lawful guardian, to look after the immovable and movable property needs no interference.

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Upon careful perusal of clauses 1 to 15 in para 17 of the impugned judgment, in my opinion, no interference is warranted in the said clauses. So far as the sub-clauses 1 and 2 of clause 16 can be modified smoothly and satisfactorily. Therefore, so far as the custody of the children is concerned, the order passed by the learned District Judge, Jalgaon giving visiting right to the objector-grandmother of minors, i.e. (1) during long holidays/vacations covering more than two

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weeks the minors will be allowed to be in the company of the objectorgrandmother for a period of seven days and (2) and the period shall be fixed by the grandmother after due intimation to the applicants who shall permit the children to go with the grandmother for the aforesaid period, stand set aside. Rest of the clauses i.e. clauses (3) to (6) of sub clause 16 are maintained with little modification that, when the grand mother will visit the minors, the minors would be allowed by the grandmother to attend tuition/classes even though those are on Sundays or holidays.

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In the light of discussion herein above, the appeal from order as well as the civil application stand disposed of.

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rlj/

Shital Ramanlal Bafna v. Pushpabai Prakashchandra Surana

Case brief

What is this about?

What did the court decide?

Shital Ramanlal Bafna v. Pushpabai Prakashchandra Surana

Case brief

What is this about?

What did the court decide?

What the court decided

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