Court No. - 44
Case :- FIRST APPEAL No. - 796 of 2021 Appellant :- Bhopal Singh Advocate Respondent :- Om Prakash And Another Counsel for Appellant :- Avinash Pandey Counsel for Respondent :- Dhiraj Kumar Pandey
Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Krishan Pahal,J.
Heard learned counsel for the appellant, Sri S.K. Srivastava, learned counsel for the respondent no.2 and perused the record.
By the order dated 11.12.2018 the application under Section 25 of Guardians and Wards Act filed by the appellant seeking custody of his minor child, namely, Master Kartik @ Nonu has been rejected. This appeal has been filed in the month of September, 2021 with an assertion that at the time of passing of the order impugned, the appellant was in jail as he was convicted under Section 304-B IPC for committing murder of his wife.
The submission is that on the appeal filed by the appellant against the order of conviction, he has been released on bail by this Court. After release from the jail on 18.04.2019, he had inspected the file of the proceeding and, then, filed a restoration application under Order IX Rule 13 of C.P.C. on 06.05.2019 to seek recall of the order dated 11.12.2018 whereby his petition under Section 25 of the Guardians and Wards Act had been dismissed. On dismissal of the restoration application vide order dated 17.04.2021, the present appeal has been filed.
The order of rejection of the restoration application categorically records that in the proceedings under the Guardians and Wards Act, evidence of both the parties were led and the proceeding in Misc. Case No. 44 of 2013 was at the stage of the arguments when the appellant was landed in jail after conclusion of his trial. No further evidence was required to be produced by the appellant and before conviction of the appellant vide order dated 30.10.2018 in Sessions Trial No.126 of 2011, the proceeding under the Guardians and Wards Act was almost over. It is, thus, noted in the order impugned that the competent court had passed order dated 11.12.2018 after perusal of the evidence on record and the same cannot be said to be an exparte order to seek recall by invoking the provisions of Order IX Rule 13 of C.P.C.
This finding returned by the family court while passing the order dated 17.04.2021 has not been subjected to challenge. The only assertion by the learned counsel for the appellant is that the order dated 11.12.2018 was passed behind the back of the appellant and hence he had no option but to seek recall of the same.
We are not convinced with the said assertion of the learned counsel for the appellant.
On merits of the order passed under Section 25 of the Act, it is an admitted that the minor child is residing with his grand- mother and at present, she is looking after him. Since the year 2010, the minor child is with his maternal grandparents as the appellant was lodged in jail during the trial, namely, Sessions Trial No.126 of 2011 which arose out of Case Crime No.211 of 2010, under Sections 498-A, 323, 504, 506, 304B IPC and Sections 3/4 of Dowry Prohibition Act. For a short period, when the appellant was released on bail, he had filed the application under Section 25 of the Guardians and Wards Act to seek custody of his son. During the pendency of the said proceedings he had been convicted vide judgement and order dated 30.10.2018. The release of the appellant from the jail on the grant of bail in appeal is only an interim arrangement and the criminal appeal is admittedly pending before this Court.
Considering the said circumstances, looking to the best interest of the minor child, we find that since the child is living with the maternal grandparents for the last more than 11 years and there are no allegations against them that they are not taking proper care of the child and the appellant himself is in the state of uncertainty, we find that the custody of the minor child cannot be handed over to the appellant.
In the matter of custody of minor child, it is settled that the best interest of the child has to be seen by the court. The question is not about the rights of the parties who seek custody of the child rather the well being of the child and of giving him proper atmosphere for ensuring both his physical and mental development. However, the appellant being father shall have a visiting right to meet his son as and when he wishes. He can go to the place of residence of the minor child but shall ensure that no harm is caused to the child or his care taker (grandmother) in any manner. He can visit the child in his school in the presence of the Principal of the school after the child is familiar with him. But in all this arrangement, the wish of the minor child is supreme. He cannot be forced to meet the appellant in any manner. In any case, the appellant is not permitted to take the child out of his home or school, as the child is not acquainted with the appellant. He can only meet the child in the presence of his care takers both at his home and in school.
For the above discussions, with the above observations, we dismiss the appeal at the stage of admission, itself.
Order Date :- 27.10.2021 Siddhant