Dismissed

Sandeep Vaishnav v. Smt. Parmeshwari Vaishnav

Chhattisgarh HC27 Nov 2024MA/92/2018

Case brief

AI extract

What is this about?

Father appealed against an order granting guardianship of his minor daughter to her maternal grandmother under the Guardians and Wards Act read with the Hindu Minority and Guardianship Act. The High Court held the child's welfare was paramount, noted she lived happily and studied well with the grandmother while the father lived alone and worked long hours, and dismissed the appeal.

What the court decided

AI extract

Sandeep Vaishnav Vs Smt. Parmeshwari… — Child Custody and Guardianship | Chhattisgarh HC (2024)

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2024:CGHC:46930

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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Judgment Reserved on 25.11.2024

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Judgment Delivered on 28. 11 .2024

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MA No. 92 of 2018

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Sandeep Vaishnav S/o Ishwardas Vaishnav Aged About 40 Years R/o Village Malpuri, Tahsil Palari, Post R. Gitpuri, District - Balodabazar, Chhattisgarh, District : Balodabazar-Bhathapara, Chhattisgarh

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... Appellant

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Digitally signed by PRAVEEN KUMAR SINHA

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versus

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Smt. Parmeshwari Vaishnav W/o Late Krishna Kumar Vaishnav Aged About 62 Years R/o Patwapara, Mungeli, Tahsil And District - Mungeli, Chhattisgarh., District : Mungeli, Chhattisgarh

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... Respondent

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For Appellant : Mr. Rajesh Jain, Advocate For Respondent : Mr. Keshav Dewangan, Advocate

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S.B.: Hon'ble Shri Parth Prateem Sahu, Judge

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CAV JUDGMENT

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By this appeal under Section 47 of the Guardians and Wards Act, 1890, appellant has questioned the legality and sustainability of the impugned order dated 09.10.2018 passed in MJC No.1/2016 whereby learned Additional Judge of the Court of Additional District Judge, Mungeli has allowed the application

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filed under Section 7 of the Guardians and Wards Act, 1890 (hereinafter referred to as “ Act of 1890 ”) read with Section 13 of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as “ Act of 1956 ”).

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Facts relevant for disposal of this appeal are that appellant got married with Shashi Vishnav. Shashi Vaishnav died while suffering with medical ailment. During suffering of Shashi Vaishnav with medical ailment, minor child started residing with her maternal-grand-mother. However, in the month of November 2015, the appellant/non-applicant made an attempt to took the minor child with him forcefully. Incident was reported based upon which proceeding under Section 151 of Cr.P.C. was initiated. Applicant/respondent is residing along with her two sons and daughter-in-law. Aggrieved with action taken by appellant/nonapplicant, respondent/applicant has submitted an application under Section 7 of the Act of 1890 read with Section 13 of the Act of 1956 on the ground pleaded therein. Said application was replied by non-applicant/appellant. Upon considering the pleadings made in the application and evidence brought on record by respective parties learned Court below allowed the application vide impugned order dated 09.10.2018. It is this order which is put to challenge in this appeal.

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Learned counsel for the appellant/non-applicant would submit that order passed by learned trial Court is erroneous because the trial Court erred in ignoring the basic principles of law relating to custody of child. The Court below failed to take note

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of the fact that the applicant/respondent who has filed application under Section 7 of the Act of of 1890 read with Section 13 of the Act of 1956 was about 62 years of age on the date of filing of application, a widow, not having any independent source of income, she is not able to maintain herself and therefore could not even able to maintain minor child. Decision relied upon by learned Court below is on different facts. Dispute therein was between the husband and wife. In the case at hand mother died and, therefore, father is entitled for custody of child being the natural guardian. Consideration of trial Court in granting custody of child to applicant/respondent declaring the applicant/respondent to be guardian of minor child observing that paramount welfare of minor child would be with the applicant/respondent is contrary to the facts and evidence available on record. Appellant/non-applicant being father is having sufficient means to take care of minor child, which in fact was not having with respondent/applicant who was declared to be guardian of minor child.

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Learned counsel for the respondent/applicant vehemently opposes the submission of learned counsel for the appellant/non-applicant and would submit that minor child is residing with respondent-maternal-grand-mother since age of seven. Before Court below, statement of minor child was also recorded wherein also she stated that she is residing happily with her maternal-grand-mother, maternal -uncles and is getting good education. He submits that from evidence of appellant/non-applicant it appears that no other person is

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residing along with appellant or any female family member. Applicant remains out of the house for his business purpose from 9:00 am to 9:00 pm and further that place where the appellant/non-applicant resides is a small place not having proper education and medical facility. He contended that for determining the question as to who should be given custody of minor child, paramount consideration is the welfare of child and not rights of parents. In support of his contentions, he places reliance upon the decision in case of Nil Ratan Kundu and Anr. Vs. Abhijit Kundu (2008) 9 SCC 413 and Mausami Moitra Ganguli Vs. Jayanti Ganguli (AIR 2008 SC 2262).

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I have heard learned counsel for the parties and also perused the records of the Court below.

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Learned trial Court has formulated three issues for consideration. The first issue is with regard to whether the paramount welfare of minor child Ku. Astha Vishnav is in the guardianship of the applicant/respondent and second issue is whether paramount welfare of child Ku. Astha Vishnav is in the guardianship of non-applicant/appellant. The applicant/ respondent Parmeshwari Vaishnav is examined as AW-1 and in her evidence she stated that since time of treatment of her daughter, minor child is residing with her since 2015. She has made arrangement of her good education and maintaining her properly. The minor child is residing happily in the company of applicant/respondent. Along with her, her two sons and daughters-in-law are residing. It is further stated that along with

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non-applicant/appellant there is no family members to take care of minor child. Evidence of applicant AW-1 is supported by her son Arvind Vaishnav (AW-2). In support of his oral evidence, the applicant has further produced the documentary evidence i.e. Marriage Card (Ex. A-1), School Register of Jaycees Public Higher Secondary School Mungeli (Ex.A-2), Notice under Section 97,98 of Cr.P.C. issued by the SDM (Ex.A-3), Information Card of demise of Smt. Shashi Vaishnav (Ex.A-4), Orders-sheets of proceedings of Executive Magistrate in Criminal Case No. 448/2015 under Sections 107, 116 (3) Cr.P.C. (Ex.A-5), Order issued by Executive Magistrate (Ex.A-6), Istgasa No.39/15 under Sections 151, 107, 116 (3) of Cr.P.C. (Ex.A-7), Arrest Memo of accused -Sandeep Vaishnav and Ishwar Das (Ex.A-8 and Ex.A-9), certified copy of rojnamcha sanha dated 17.11.2015 (Ex.A-10), copy of statements of Sanjay Jaiswal and Praveen Vaishnav (Ex.A-11 and Ex.A-12), Copy of school report card of Ku. Astha Vaishnav issued by Jaycees Public Higher Secondary School (Ex. A 13-C), news published in the Navbharat News Paper published on 18.11.2015 (Ex.P-14), treatment chart showing treatment of Shashi Vaishnav (Ex.A15).

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Non-applicant/appellant examined himself as NAW-1. In his evidence, he stated that suffering of his wife with kidney disease was not disclosed to him before marriage. Her daughter is not safe, in the custody of applicant. He is having business of medical store, agriculture and transport and having good source of income. He is able to give good education and maintain her

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minor daughter. The evidence of NAW-1 was supported by witness Ishwardas Vaishnav (NAW-2).

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Learned trial Court has considered the evidence of parties and found proved that the minor child is studying in St. Jaycees Public Higher Secondary School and from her progress card it is appearing that she is meritorious student. Non-applicant admitted that since 2015, minor child is residing at Mungeli. The Court has also considered the evidence of non-applicant No.1/appellant and recorded a finding that statement made by non-applicant No.1 that his mother is also residing along with him is not correct based on his evidence filed under affidavit, wherein he made statement that his mother and father is residing at village Malpuri. From the aforementioned facts and the evidence of non-applicant it is apparent that the appellant/non-applicant is residing alone at Saragaon. He is engaged in business of medical shop, agriculture and transport for which he has to reside outside the house from 9:00 am to 9:00 pm. At that time there is no other person residing in the house to take care of minor child.

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In the statement of the minor child before the Court she stated that she is residing happily in company of her maternal-grandmother and maternal-uncles and is taking her education also.

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10.It is settled law that while considering the custody of child paramount consideration is “welfare” of child and not rights of parents under statute for time being in force. In case of Rosy Jacob Vs. Jacob A. Chakramakkal (1973) 1 SCC 840, Hon’ble

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Supreme Court held that the absolute right of parents over the destinies and the lives of their children,in the modern changed social conditions, must yield to the consideration of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of society and the guardian. Court in case of a dispute between mother and father, is expected to strike a just and proper balance between the requirements of the welfare of the minor children and the rights of respective parents over them.

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In case of Thrity Hoshie Dolikuka vs. Hoshiam Shavaksha Dolikuka (1982) 2 SCC 544, Hon’ble Supreme Court reiterated that only consideration of the Court in deciding the question of custody of a minor should be the welfare and interest of the minor and it is the special duty and responsibility of the Court. Mature thinking is indeed necessary in such situation to decide what will enure to the benefit and welfare of the child.

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12.In case of Surinder Kaur Sandhu Vs. Harbax Singh Sandhu (1984) 3 SCC 698, Hon’ble Supreme Court held that Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the father as a natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of minor.

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13.In case of Mausami Moitra Ganguli Vs. Jayant Gangul i (2008)

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7 SCC 673, Hon’ble Supreme Court has held thus:-

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“19. The principles of law in relation to the custody of a minor child are well settled. It is trite that while

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determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably, the provisions of law pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor.

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20. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration.”

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14.In case of Kirtikumar Maheshankar Joshi Vs. Pradipkumar

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Karunashanker Johsi (1992) 3 SCC 573 while considering the claim of custody of minor child sought by father as also by maternal-uncle when minor children were staying with their maternal-uncles, Hon’ble Supreme Court observed thus:-

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“7. ………….. After talking to the children, and assessing their state of mind, we are of the view that it would not be in the interest and welfare of the children to hand over their custody to their father Pradipkumar. We are conscious that the father, being a natural guardian, has a preferential right to the custody of his minor children but keeping in view the facts and circumstances of this case and the wishes of the children, who according to us are intelligent enough to understand their wellbeing, we are not inclined to hand over the custody of Vishal and Rikta to their father at this stage. ”

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15.The word “welfare” used in Section 13 of the Act of 1956 must be taken in its widest sense. Moral and ethical welfare of the child must also weigh with the Court as well as his physical well being. For custody of the minor child the paramount consideration is the welfare of minor and not legal rights of particular party. To ascertain the welfare of the child as a sole consideration it would be appropriate to find out the wishes of child as to with whom he or she wants to live. Hon’ble Supreme Court in case of Nil Ratan Kundu (supra) has observed thus:

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“52. In our judgment, the law relating to custody of a child is fairly well settled and it is this : in

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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 human 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 conducive to the welfare of the minor.”

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16.In case of Vivek Singh Vs. Romani Singh (2017) 3 SCC 231,

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Hon’ble Supreme Court observed that, the “welfare” principle is aimed at serving twin objectives. In the first instance, it is to ensure that the child grows and develops in the best environment. The best interest of child has been placed at the vanguard of family/custody disputes according to the optimal

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growth and development of the child and had primacy over other considerations. The right of child is also based on individual dignity. The second justification behind the “welfare” principle is the public interest that stands served with the optimal growth of children. Child-centric human rights jurisprudence that has been evolved over a period of time is founded in the principle that public good demands proper growth of the child, who are future of nation.

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17.If the case at hand is considered in the light of the pleadings made and evidence available in record in the light of aforementioned decisions of Hon’ble Supreme Court it is apparent that the minor child is residing in the company of her maternal-grand-mother, maternal-uncle and maternal -aunts. She is residing happily, she is being well maintained by her maternal-grand-mother, maternal-uncle, she is being provided good education in a good school and she as per the progress card has been meritorious student. In the Court, she has shown her will and wish to reside in the company of her maternalgrand-mother and maternal-uncle. On the other hand, the appellant/non-applicant is residing alone and for the purpose of his business he has to reside out the house from morning 09:00 to evening 09:00. Minor child is a female child and female members including the female family members may be required for her proper bringing up, comfort, contentment, health and intellectual development. There is no other family member in the house of the appellant.

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18.In view of the above discussions, I do not find any error or infirmity in the impugned order passed by learned Court below allowing the application filed under Section 7 of Act of 1890 read with Section 13 of the Act of 1956 filed by respondent/applicant (maternal-grand-mother).

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19.Appeal being sans merit is liable to be dismissed and is accordingly dismissed.

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Sd/-/---/-/---/-/- (Parth Prateem Sahu) Judge

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Praveen

Sandeep Vaishnav v. Smt. Parmeshwari Vaishnav

Case brief

What is this about?

What the court decided

Sandeep Vaishnav v. Smt. Parmeshwari Vaishnav

Case brief

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