Hon'ble Rajeev Misra,J.
(Delivered by Hon'ble Rajeev Misra,J)
1. Present first appeal under section 47 of Guardian and Wards Act, 1890 (hereinafter referred to as "Act 1890") has been filed by Latoori Singh, challenging judgement dated 23.1.2018 and decree dated 5.2.2018, passed by Principal Judge, Family Court, Kasganj in Suit No. 25 of 2015 (Smt. Sushila Devi Vs. Latoori Singh) under section 25 of Act 1890, whereby and whereunder, plaintiff-respondent Smt. Sushila Devi has been appointed as guardian of minor Kuldeep and further defendant-appellant has been directed to hand over custody of minor Kuldeep to plaintiff-respondent Sushila Devi.
2. Brief facts shorn of unnecessary details giving rise to present first appeal are that marriage of plaintiff-respondent was solemnized with Subhash chandra S/o defendant-appellant Latoori Singh in accordance with Hindu Rites and Customs. From aforesaid wedlock, son Kuldeep was born. Unfortunately, Subhash chandra father of minor Kuldeep died on 7.10.2012. Upon death of Subhash chandra S/o defendant-appellant Latoori Singh, custody of minor Kuldeep was retained by defendant-appellant whereas, Smt. Sushila Devi, mother of minor Kuldeep, went to her parental home. On 27.8.2016, plaintiff-respondent Sushila Devi filed Suit No. 25 of 2015 (Smt. Sushila Devi Vs, Latoori Singh) under section 25 of Act, 1890 for appointment of herself as Guardian of minor Kuldeep and also for custody of minor.
3. According to plaint allegations, marriage of plaintiff-respondent Sushila Devi was solemnized with Subhash Chandra in accordance with Hindu Rites and Customs. From the aforesaid wedlock, a son, Kuldeep, was born. Unfortunately, Subhash Chandra husband of plaintiff-respondent Sushila Devi died on 7.10.2012 in an accident. Defendant-appellant is allege to have got some papers signed from plaintiff-respondent as well as her father and on false pretext that health of plaintiff-respondent is not keeping good, retained custody of minor Kuldeep. Upon regaining health, plaintiff-respondent came to her marital home on 12.8.2015 but was not allowed by her in-laws to enter the house. According to plaintiff-respondent, it is alleged that defendant-appellant on the basis of certain papers which were got signed by him from plaintiff-respondent and her father, pleaded that plaintiff-respondent has no concern with minor as well as property of her late husband. Photo copy of alleged paper was handed over to plaintiff-respondent on 12.8.2015. On basis of the same, defendant-appellant is alleged to have denied custody of minor Kuldeep to his natural guardian i.e. mother, Smt. Sushila Devi, on 20.8.2015. Accordingly, plaintiff-respondent, Smt. Sushila Devi, filed Suit No. 25 of 2015 (Smt. Shusheels Devi Vs. Sri Latoori Singh) for custody of minor Kuldeep and also for appointment of herself as Guardian of minor Kuldeep.
4. Suit filed by plaintiff-respondent was contested by defendant-appellant. He filed a written statement dated 29.9.2015 (Paper No. 10-a) whereby, not only plaint allegations were denied but also additional pleas were raised. According to defendant-appellant, allegations made in plaint were false. Plaintiff-respondent herself went to her parental home along with her jewellery, goods and utensils. A panchayat was held in the presence of Nawab Singh, Pooran Singh, Swadan Singh, Brijesh Kumar, Prajapalan Verma and Ex-M.L.A. Ramswaroop wherein, plaintiff-respondent expressed her desire to live at her parental home. Accordingly, plaintiff-respondent was paid a sum of Rs. 80,000/- cash by defendant-appellant as well as entire amount payable under L.I.C. Policy of deceased Subhas chandra i.e. Rs. 2,05,000/-. Plaintiff-respondent further agreed for remarriage and gave custody of minor Kuldeep in his favour. A memorandum to that effect was prepaed and noterised on 27.7.2015. It was thus pleaded by defendant-appellant, that plaintiff-respondent is not entitled to the custody of minor Kuldeep nor is she entitled to be appointed as her guardian.
5. After exchange of pleadings, parties went to trial. Plaintiff-respondent Smt. Sushila Devi, in order to prove her case adduced herself as P.W.1. She also filed documentary evidence. Defendant-appellant, in proof of his defence, adduced himself as D.W.1 Saudan Singh as D.W.2 and Nawab Singh as D.W.3.
6. On the basis of pleadings raised by parties, Court below framed following issues for determination:
(i) Whether on the basis of conjugal relationship between plaintiff-respondent and Subhash Chand, son of defendant-appellant, a son Kuldeep was born.
(II) Whether plaintiff-respondent/defendant-appellant have ignored the child.
(III) The interest of the child is best protected in the company of plaintiff-respondent of defendant-appellant.
(IV) Relief.
7. Issue no-I was decided in favour of plaintiff-respondent. It was held by Court below that from the wedlock of plaintiff-respondent Smt. Sushila Devi and Subhash chandra S/o defendant-appellant, a son Kuldeep was born. Issue No. II was decided in favour of plaintiff-respondent and it was held that plaintiff-respondent has not neglected her minor child Kuldeep. Court below further held that burden to prove Issue No-II was upon defendant-appellant, which burden he has failed to discharge. Issue No. III was decided holding that interest of minor is best protected in the company of his natural mother Smt. Sushila Devi. Defence put forward by defendant-appellant on the basis of unregistered agreement dated 27.7.2015 was not believed by Court below. Further Court below also observed that defendant-appellant has failed to prove that as per her wish, plaintiff-respondent has re-married. Since plaintiff-respondent is natural guaridan of minor Kuldeep, as such, she is entitled to custody of minor Kuldeep and further liable to be appointed as his guardian. In respect of Issue No. IV, Court below held that plaintiff-respondent is entitled to relief prayed for, as such, she is liable to be appointed as guardian of minor and also the custody of minor Kuldeep. Accordingly, suit filed by plaintiff-respondent was decreed vide judgement dated 23.1.2018 and decree dated 5.2.2018. Feeling aggrieved by aforesaid judgement and decree, passed by Court below, defendant-appellant has now approached this Court by means of present first appeal.
8. We have heard Mr. Ram Sanehi Yadav, learned counsel for defendant-appellant and Mr. Hari Mohan Srivastava, learned counsel for plaintiff-respondent.
9. Learned counsel for defendant-appellant while assailing impugned judgement and decree passed by Court below, has urged, that though mother is natural guardian of minor but natural guardian can be denied custody and guardianship of minor for strong and compelling reasons. Court below while passing impugned judgement and decree has not adverted itself to the facts and circumstances of the case and therefore, exercised its jurisdiction in a mechanical manner, which is unsustainable in law. He further submits that Court below has not weighed conditions of parties, as such, Court below has not returned a finding with regard to the protection of interest of minor in the company of plaintiff-respondent or defendant-appellant. Court below has further not considered the issue as to whether mother has remarried or not.
10. Mr. Hari Mohan Srivastava, learned counsel for plaintiff-respondent, has supported impugned judgement and decree on the basis of findings recorded therein. Learned counsel for plaintiff-respondent further submits that since minor Kuldeep is of tender age, Court below has not committed any illegality in appointing mother i.e. plaintiff-respondent who is also a natural guardian as the guardian, of minor and further directing defendant-appellant to hand over custody of minor to plaintiff-respondent. There does not exist any such reason or circumstance on the basis of which natural guardian could be deprived the guardianship and custody of minor Kuldeep.
11. Upon consideration of submissions raised by counsel for parties, issue which arises for determination before this Court is:- "Whether Court below was right in appointing plaintiff-respondent as guardian of minor Kuldeep and further handing over of possession of minor in favour of plaintiff-respondent".
12. Before proceeding to consider rival submissions, it is necessary to reproduce sections 25 and 47 of Act 1890:
"25. Title of guardian to custody of ward.--(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.
(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882 (10 of 1882).
(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.
47. Orders appealable.--An appeal shall lie to the High Court from an order made by a 1[***] Court,--
(a) under section 7, appointing or declaring or refusing to appoint or declare a guardian; or
(b) under section 9, sub-section (3), returning an application; or
(c) under section 25, making or refusing to make an order for the return of a ward to the custody of his guardian; or
(d) under section 26, refusing leave for the removal of a ward from the limits of the jurisdiction of the Court, or imposing conditions with respect thereto; or
(e) under section 28 or section 29, refusing permission to a guardian to do an act referred to in the section; or
(f) under section 32, defining, restricting or extending the powers of a guardian; or
(g) under section 39, removing a guardian; or
(h) under section 40, refusing to discharge a guardian; or
(i) under section 43, regulating the conduct or proceedings of a guardian or settling a matter in difference between joint guardians or enforcing the order; or
(j) under section 44 or section 45, imposing a penalty."
13. From the perusal of Section 25 of Act 1890 it is apparent that there are no directions contained in the section itself in accordance with which application for guardianship and custody shall be decided. However, as law has developed on the subject concerned, it is well crystallized that paramount interest of minor is the primary criteria for deciding custody and guardianship of a minor. Apart from above, it is now further established that a minor who is below five years of age, shall ordinarily be allowed to stay with mother. Similarly in case of minor girls, it has been the consistent view that their custody should remain with mother till they attain age of majority. It shall be useful to refer to a Division Bench judgement of this Court in First Appeal Defective No. 138 of 2019 (Mritunjay Vs. Hari Shankar Dixit) decided on 8.7.2019. In paragraphs 7, 8, 9, 10 and 11 Court has said as under:
"7. While determining the question of custody of a minor child, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute.
8. In Mausami Moitra Ganguli v. Jayant Ganguli (2008) 7 SCC 673, it has been held that the principles of law in relation to the custody of a minor child are well settled. While 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.
9. In the above case, a passage from Halsbury's Laws of England (4th Edn., Vol. 13) was reproduced which reads as under:
"809. Principles as to custody and upbringing of minors.- Where in any proceedings before any court, the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other."
10. Earlier, Apex Court in Rosy Jacob v. Jacob A. Chakramakkal (1973) 1 SCC 840, ruled that the children are not mere chattels, nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian.
11. Following the above authorities, in Santhini Vs. Vijaya Venketesh (2018) 1 SCC 1 Court expressed the same view holding as under:
"It is to be borne in mind that in a matter relating to the custody of the child, the welfare of the child is paramount and seminal. It is inconceivable to ignore its importance and treat it as secondary. The interest of the child in all circumstances remains vital and the Court has a very affirmative role in that regard. Having regard to the nature of the interest of the child, the role of the Court is extremely sensitive and it is expected of the Court to be pro-active and sensibly objective."
(emphasis added) "
14. Supreme Court in Lekha Vs. P. Anil Kumar 2006 (13) SCC 555, had dealt with the issue regarding guardianship and custody of minor under section 25 of Act 1890 and observed as follows in paragraphs 15, 16, 17 and 19:
"15. Sk. Moidin v. Kunhadevi [AIR 1929 Mad 33 (FB)] was a case of a father, a motor driver, applying for writ of habeas corpus to get custody of his 7-year-aged child. Nobody was available in his house to look after such child. The Full Bench held that the Court has to look to an application under habeas corpus in the interest of the child as being paramount. The Court held that prima facie in the eye of the law, the father is the natural guardian and custodian of the person of his child. But it has been the law for a very long time both in England and in this country that what a court has to look to on applications under habeas corpus is the interest of the child as being paramount.
16. In Samuel Stephen Richard v. Stella Richard [AIR 1955 Mad 451 : 56 Cri LJ 1192] the High Court in deciding the question of custody held as follows: (AIR p. 452) "In deciding the question of custody, the welfare of the minor is the paramount consideration and the fact that the father is the natural guardian would not ''ipso facto' entitle him to custody. The principal considerations or tests which have been laid down under Section 17, in order to secure this welfare, are equally applicable in considering the welfare of the minor under Section 25.
The application of these tests casts an ''arduous' duty on the court. Amongst the many and multifarious duties that a Judge in Chambers performs by far the most onerous duties are those cast upon him by the Guardians and Wards Act. He should place himself in the position of a wise father and be not tired of the worries which may be occasioned to him in selecting a guardian best fitted to assure the welfare of a minor and thereafter guide and control the guardian to ensure the welfare of the ward--a no mean task but the highest fulfilment of the dharmasastra of his own country.
It is only an extreme case where a mother may not have the interest of her child most dear to her. Since it is the mother who would have the interest of the minor most at heart, the tender years of a child needing the care, protection and guidance of the most interested person, the mother has come to be preferred to others."
17. In Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka [(1982) 2 SCC 544 : AIR 1982 SC 1276] this Court held as under: (SCC p. 565, para 17) "17. The principles of law in relation to the custody of a minor appear to be well established. It is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor's interest. In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor."
19. The law permits a person to have the custody of his minor child. The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that the mother has married again after the divorce of her first husband is no ground for depriving the mother of her parental right of custody. In cases like the present one, the mother may have shortcomings but that does not imply that she is not deserving of the solace and custody of her child. If the court forms the impression that the mother is a normal and independent young woman and shows no indication of imbalance of mind in her, then in the end the custody of the minor child should not be refused to her or else we would be really assenting to the proposition that a second marriage involving a mother per se will operate adversely to a claim of a mother for the custody of her minor child. We are fortified in this view by the authority of the Madras High Court in S. Soora Reddi v. S. Chenna Reddi[AIR 1950 Mad 306 : (1950) 1 MLJ 33] where Govinda Menon and Basheer Ahmed Syed, JJ. have clearly laid down that the father ought to be a guardian of the person and property of the minor under ordinary circumstances and the fact that a Hindu father has married a second wife is no ground whatever for depriving him of his parental right of custody."
(Emphasis added)
15. Thus from the aforesaid observations, it is explicitly clear that even though father is natural guardian but simply on that ground he is not entitled to the custody and guardianship of minor children. Court while deciding guardianship and custody of a minor is to be guided by the observations made by Court as referred to above. When the case in hand is examined in the light of observations made by Court above, the balance tilts in favour of mother i.e. defendant-appellant.
16. In the present case, Court below while deciding the issue regarding appointment of guardian of minor and also custody of minor has clearly omitted to have a dialogue with the minor and secondly return a finding regarding paramount interest of child is best protected in the company of plaintiff-respondent or defendant-appellant. Unfortunately, neither parties have given date of birth of minor. Since Subhas chandra, father of minor died on 7.10.2012, Court presumes that the minor child is not less than 8 years of age. Consequently, it was obligatory upon Court below to have conversation with minor child and then assess as to whether minor Kuldeep wants to stay with his grand father or his mother. Court below while deciding issue no.3 which indirectly also relates to paramount interest of minor child in the company of plaintiff-respondent or defendant-appellant of necessity, had also to look into the financial status of parties. However, Court below upon an erroneous assumption that since Latoori Singh grandfather of minor is 60 years of age and suffering from desease, as such, in case of his untimely death, there would be no one to look after minor child. As such, appointed plaintiff-respondent as guardian of minor and further directed defendant-appellant to hand over custody of minor to plaintiff-respondent. In our view this finding recorded by Court below, for holding guardianship of minor in favour of plaintiff-respondent and also for handing over custody of minor in favour of plaintiff-respondent, is unsustainable in law. As already noted above, Court below was under legal obligation to decide the status of parties, the intention of minor in residing with his mother or grand father and then return a finding, as to in whose custody the paramount interest of minor child is best protected. Court below having failed to undertake the aforesaid exercise, we are of the view that it has not exercised jurisdiction vested in it in accordance with law.
17. Consequently, the present appeal succeeds and is allowed. The judgement dated 23.1.2018 and decree dated 5.2.2018, passed by Principal Judge, Family Court, Kasganj, in Suit No. 25 of 2015 (Smt. Sushila Devi Vs. Latoori Singh) under section 25 of Act 1890, are set aside. The matter is remanded to Court below for decision afresh in the light of observations made in the body of judgement. Court below shall make an endeavour to decide the case, preferably within a period of three months from the date of presentation of certified copy of this order by either of the parties. Cost made easy.
Order Date :- 27.9.2019 Arshad