JUDGMENT K.N. Ojha, J.
1. Heard Sri R.P. Tiwari, learned counsel for the appellants and Sri Zamal AN and Sri M.C. Chaturvedi for the respondents in F.A.F.O. No. 276 of 2005 and Sri S.K. Shukla for the appellant and Sri M.C. Chaturvedi for the respondent in F.A.F.O. No. 1530 of 2004 and have gone through the record.
2. F.A.F.O. No. 276 of 2005, Ram Kripal and Anr. v. Smt. Manju has been preferred against judgment and order dated 5.3.2005 passed by Additional District Judge/ Special Judge (SC/ST Act), Hamirpur, in Misc. Application No. 25/74 of 2004, whereby the application moved by Smt. Manju under Section 25 of Guardian and Wards Act 1980 was allowed and it was directed that Shanker @ Kalloo, minor aged about 4 years, who is grandson of Ram Kripal and Smt. Bimla Devi be handed over under the guardianship of Smt. Manju sister of mother of Shanker @ Kalloo and a copy of the order dated 5.3.2005 was sent to the police station concerned for compliance.
3. F.A.F.O. No. 1530 of 2004 has been preferred against the judgment and order dated 18.3.2004 passed by District Judge, Hamirpur, in Case No. 15/70 of 2001, Smt. Manju v. Dharmendra Kumar and two Ors., whereby Smt. Manju Gupta was appointed as guardian of minor Shanker @ Kalloo and a direction was made that she would take care of his studies, living, medical treatment, etc. and will behave in such a manner, which not prejudicial to the interest of the minor Shanker @ Kalloo.
4. The fact of the case as revealed from the record is that Smt. Pawan Kumari was mother of the minor Shanker @ Kalloo and was daughter of Smt. Indo Devi. Smt. Pawan Kumari was married with Dharmendra in 1996. Dharmendra is son of appellants Ram Kripal and Smt. Bimla Devi. Smt. Pawan Kumari was mother of minor Shanker @ Kalloo and sister of Smt. Manju Devi. It is said that Smt. Pawan Kumari died in unnatural circumstances inside the house of the appellants on 15.6.2001. FIR was lodged by Smt. Indu Devi that demand for dowry being not satisfied her death was caused by the appellants of this case and his son Dharmendra. ST. No. 68 of 2001, State v. Dharmendra and Ors. and S.T. No. 88 of 2001, State v. Smt. Bimla Devi bearing Crime No. 53 of 2001 proceeded under Section 498A and 304B of I.P.C. and Section 3/4 of Dowry Prohibition Act, police station Binwar, district Hamirpur. Both the sessions trials were decided by the Additional Sessions Judge (Special Judge S.C./ S.T. Act) Hamirpur, on 3.5.2003. The appellants Ram Kripal, Smt. Bimla Devi and Dharmendra and one another were convicted under Section 304B and 498A I.P.C. They have preferred appeal, which is pending in this Court. The appellants were enlarged on bail and Dharmendra Kumar, father of the minor Shanker @ Kalloo is still in jail.
5. Smt. Indo Devi moved application against Dharmendra Kumar, Smt. Bimla Devi in the Court of District Judge, Hamirpur, under Section 7/10 Guardian and Wards Act that Shanker @ Kalloo whose mother had died at the residence of Dharmendra be given in her custody as she was his grand maternal aunt. It was said that neither the life of Shanker @ Kalloo was safe in the hands of his father, grandfather and grandmother nor it was in his welfare. During the pendency of the case under Section 7/10 of the Guardian and Wards Act Smt. Indo Devi died on 15.7.2001 and Smt. Manju, sister of Pawan Kumari was substituted in place of Smt. Indo Devi. The application was allowed by the court below and Smt. Manju Devi, Mausi of the minor Shanker @ Kalloo was appointed as his guardian. Thereafter she moved application that Shanker @ Kalloo be given in her guardianship, which was allowed. Aggrieved from both these orders abovementioned two appeals have been preferred.
6. Affidavit, counter affidavit and rejoinder affidavit have been exchanged between the parties. Smt. Manju Devi has submitted her allegation in the counter affidavit, which has been denied by the appellants. Ram Kripal in his affidavit has deposed that he is grandfather of the minor Shanker @ Kalloo and Smt. Bimla Devi is his grandmother. He is in-charge Principal in Junior High School, Bajehta, Hamirpur, and receives pay of about Rs. 11,000/- per month. Besides it he has agricultural land in village Chhani Khurd, district Hamirpur, which yields income of Rs. 5000/- per month. In paragraph 5 of the affidavit filed in support of the stay application in FAFO no. 276 of 2005 he deposed that that the appellants are prepared to execute the deed in favour of the minor grandson Shanker and also prepared to furnish security in the nature of bank guarantee/ fixed deposit etc. in the name of minor Shanker for his welfare and interest. In paragraph no, 7 of the said affidavit he deposed that Smt. Manju has two children and therefore it would not be in the interest of the minor Shanker to keep him with Smt. Manju. In para 8 of the affidavit he deposed that he has got three sons they are Dharmendra, Akhilesh and Satish and Akhilesh has two daughters. His third son is not married and his son Dharmendra is in Jail, who has only one son (sic). Thus in his family there is only grandson "who is Shanker @ Kalloo. It is also deposed that the minor Shanker is admitted in Kinder Garden School.
7. Smt. Manju Devi has filed affidavit that fake education certificate has been obtained to show that Shanker is being educated in such school and no care is being taken for his health etc. Therefore, she prayed that the custody of the minor be given to her.
8. The relevant Sections of Guardian and Wards Act are quoted below:
7. Power of the Court to make order as to guardianship:
(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made-
(a) appointing a guardian of his person or properly or both, or
(b) declaring a person to be such a guardian the court may make an order accordingly.
(2) An order under this Section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.
(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.
Section 10 of the Guardian and Wards Act provides the format of application.
9. Section 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.
(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,
10. Section 47 of the Act provides that the orders are appellable. An appeal shall lie to the High Court from an order made by the court under different sections of the Act.
11. From these sections it is evident that it is the welfare of the minor, which is paramount consideration in the matter of appointment of a guardian and for being given in the guardianship of some person.
12. Now question arises whether handing over the minor Shanker @ Kalloo under the guardianship of Smt. Manju Gupta would be for his more welfare. It is not denied that since birth Shanker @ Kalloo is living at the residence of his grandfather in village Chhani Khurd, district Hamirpur. The residence of Smt. Manju Devi is in Awas Vikas Hanspuram, Naubasta, Kanpur Nagar.
13. It has been submitted by the learned counsel for the respondents that there is danger to the life of Shanker @ Kalloo in case he lives there. It is submitted that his mother has been killed by the appellants and the life of Shanker @ Kalloo is also not safe there and even if he lives there, he will be ignored in the family of the appellant.
14. A perusal of the judgment delivered by Special Judge, Hamirpur in S.T. No. 68 and 88 of 2001 in Crime no. 53 of 2001 under Section 498A, 304B I.P.C. and Section 3/4 Dowry Prohibition Act shows that the order of conviction was passed holding that death of Smt. Pawan Kumari alias Usha Gupta took place inside the house of the appellants in unnatural circumstances from burn injuries. The matter is subjudice before this Court and it is still to be ascertained as to whether her death was caused or she committed suicide and in what circumstances her death took place. If Smt. Pawan Kumari died in unnatural circumstances at the residence of the appellants due to alleged cruelty, it does not mean that the cruelty is to be exercised by the father, grandfather and grandmother oft Shanker @ Kalloo also. The appellants are grandfather and grandmother of the minor. Shanker @ Kalloo is born from the blood of Dharmendra, If it be taken that upon Pawan Kumari hurt or cruelty was exercised, still it does not mean that the same treatment is to be repeated with Shanker @ Kalloo. Fact of cruelty being exercise is still subjudice before this Court in respect of Pawan Kumari. If Shanker @ Kalloo lives at the residence of his grandfather since his mother has died, therefore, his grandfather and his grandmother as well as his father will be more sympathetic to him than in the circumstances his mother would have remained alive. In normal course father, grandfather and grandmother will try in future that the minor boy may forget what has happened with his mother or In what circumstances she died because at the time of occurrence he was only 4 years in age, but if Shanker @ Kalloo is sent to live at the residence of his Mausi, Smt. Manju Gupta it is natural that his Mausi and her family members will certainly make adverse comment about the conduct of the appellants and Dharmendra blaming them for the death of Pawan Kumari, which will create hatred in the mind of Shanker @ Kalloo against his father and the appellants and in such circumstances if he becomes major, it may give birth to anger and dispute about the property etc. Root of Shanker @ Kalloo is in village Chhani Khurd, Hamirpur, and not in Naubasta, Kanpur Nagar. When he will grow up he is bound to realize that he is living at the residence of his relation, which cannot be said even direct relation also. The position of Mausi cannot be the position of even grand maternal aunt where the children usually visit with mother and live there from time to time. When two sons of Smt. Manju will demand something whether their demand is fulfilled or not they may not feel but if some requirement is for the minor Shanker @ Kalloo and it is not fulfilled then sad sentiments are bound to take place in his mind, while this will not happen at the residence of the appellants. At the residence of appellants in normal course effort would be that he has to forget what has happened and he being the only grandson of the family when he becomes elder, he has to look after his rights and liabilities. His rights are at the residence of the appellants and not at the residence of his Mausi. He will become owner of the property of his father and grandfather at village Chhnani Khurd and not in Naubasta, Kanpur Nagar at the residence of his Mausi. If he lives at the residence of his grandfather, the appellants will try that he should not think what is happening at the residence of his Mausi, but if he lives at the residence of Mausi daily he has to be reminded that his mother became victim of the cruelty of the appellants and Dharmendra, the father of the minor boy and seed of hatred is bound to take birth, which will ultimately develop into dispute into future. There is affidavit of Ram Kripal, which is not denied that he is Acting Principal of a Junior High School and he earns Rs. 11,000/- per month. He has got 9 acres of agricultural land. Not only this Ram Kripal has filed affidavit that he can execute deed in respect of property in the name of Shanker @ Kalloo and can make fixed deposits in his favour while no such affidavit has been filed by Smt. Manju Devi that she is also ready for it. It means the allegations of the respondent that life of Shanker @ Kalloo is not safe in the hands of the appellants is devoid of force. If Shanker @ Kalloo becomes grown up he has no right to live at the residence of Mausi. If he grown up at the residence of the appellant, he will exercise mere right in his family because ultimately he has to look after the old grandfather and old grandmother and other family members. Therefore, in the opinion of this Court there would be more welfare for Shanker @ Kalloo to live at the residence of the appellants and not at the residence of his Mausi Smt. Manju Devi.
15. The learned counsel for the respondent has cited 2004(1) U.P. Civil & Revenue Cases Reporter 255, Udai Pratap Singh v. Smt. Mridula Raghuvanshi, wherein it has been laid down by this Court that welfare of minor is paramount consideration. While considering the matter under Sections 7/10 of the Guardian and Wards Act and Section 13 of the Hindu Minority and Guardians Act, 1956, it was held in this case that the mother was teacher and was living separately with her sister. Minor girl was also living with her since her birth. The minor girl did never live with her father and thus she did not know what was affection of the father. There was no record to show that father had spent even single penny to bring up, therefore, sister of wife was given preference and it was held that welfare was in sending the girl with sister of the mother, but in instant case Shanker @ Kalloo did not live at the residence of Mausi since birth, but he lived at the residence of the appellants since his birth.
16. 2004 ALL. L. J. 2195, Yogesh Sharma and Anr. v. Suresh Chandra Kaushik and Ors., was also cited in which it has been laid down by this Court that the child was living with his maternal uncle since before the death of her mother. Apprehension was in the mind of the respondents that proper attention was not being given by the father when the mother was alive. The father had remarried. The child was living with the respondents. It was held that the matter required deep scrutiny and the parties were to be given full opportunity to adduce evidence and it was not proper to shift the guardianship when the child was living with the respondents and had not lived with the father, In this case the position is otherwise. Shanker @ Kalloo has been living at the residence of the appellants since his birth. No paper or affidavit has been filed that he has been living at the residence of the respondents.
17. The learned counsel for the appellant has also cited 2001 A.C.J. 1076, R.V. Srinath Prasad v. Mandamurijaya Krishna and Ors., wherein it has been laid down by Hon'ble the Apex Court that custody dispute will not be disposed of hastily. Change in the custody should be made only when paramount interest of the child requires so. When in this case it is deposed on affidavit that Shanker @ Kalloo is admitted in Kinder Garden School. He is the only grandson of the appellant. The grandfather of the minor Shanker @ Kalloo is In-charge Principal. It would not be proper to held that his interest is not being served at the residence of the appellants and it needs change in the custody of the minor,
18. A perusal of the record shows that the appellants and their son Dharmendra remained in Jail when evidence was to be adduced in Case No. 15/70 of 2001, against which FAFO no. 1530 of 2004 is preferred, and evidence could not be adduced. It is in these circumstances that Smt. Manju Gupta was appointed as guardian but it is not denied that up till now the minor Shanker @ Kalloo is with his grandfather and grandmother. Circumstances of. this case are not such, which require that Shanker @ Kalloo be sent from the residence of the appellants at Hamirpur to the residence of the respondent in Kanpur Nagar.
19. Therefore, both the appeals deserve to be allowed.
20. Both the appeals are allowed and the impugned order 5.3.2005 passed by Additional District Judge/ Special Judge (SC/ST Act), Hamirpur, in Misc. Application No. 25/74 of 2004, and order dated 18.3.2004 passed by District Judge, Hamirpur, in Case No. 15/70 of 2001, Smt. Manju v. Dharmendra Kumar and two Ors., are set aside and the applications moved by Smt. Manju Devi for her appointment as guardian of the minor Shanker @ Kalloo and for handing over possession of Shanker @ Kalloo in her custody as guardian are rejected.