Nagendra Kumar Joshi vs Suklal Bandhe

1 FAM No.236 of 2018

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

FAM No. 236 of 2018

Nagendra Kumar Joshi son of Gulab Chandra Joshi, aged about 29 years, R/o. Quarter No. 02, Street No. 27, Nandani Mines Township, Post and P.S. Nandani, Tahsil Dhamdha, District Durg (C.G.)

---- Appellant/(Applicant)

Versus

Suklal Bandhe son of late Bisahu Das Bandhe, R/o. Block 12-E, Street No. 29, Zone-02, Khursipar, Bhilai, Tehsil and District Durg (C.G.)

---- Respondent/(Non-applicant)

For Appellant : Mr. Shikhar Sharma, Advocate. For Respondent : Mr. Anand Shukla, Advocate.

Hon'ble Shri Justice Goutam Bhaduri Hon'ble Shri Justice N.K. Chandravanshi Judgment on Board

Per Goutam Bhaduri, J.

15-11-2022

1. Heard.

2. The present appeal is filed by the father/appellant against the

order dated 02.08.2018 passed by First Additional Principal

Judge, Family Court, Durg in MJC No. 12/2013, whereby

application under Section 25 of the Guardians and Wards Act,

1890 (henceforth "Act, 1890") preferred by the father to get

custody of his minor child was dismissed.

3. The facts of the case are that the appellant Nagendra Kumar 2 FAM No.236 of 2018

Joshi was married to Anita, who is daughter of respondent, on

14.04.2007 and out of their wedlock a child - Tanishq was born

on 12.07.2008. According to appellant, since Anita was ailing,

as such, she left company of the husband without his

knowledge on the pretext of treatment and eventually on

25.06.2012, Anita, first wife of the appellant died. Thereafter,

the appellant went to get custody of the child from in-laws, but

it was refused. It is stated that father-in-law of the appellant is

not much educated, as such, development of the child may

not take place properly. It was stated that financially the

appellant is well off and he would be able to take care of the

child in most effective manner to his interest, therefore,

custody of the child may be handed over to the appellant.

4. The respondent, who is father-in-law of the appellant, replied

to the averments made in the application and stated that his

daughter was being tortured for demand of dowry both

physically and mentally. Consequently, she was forced to stay

at her parental home. It was stated that birth of the child had

taken place at their place and after birth, the appellant, natural

father, never used to take care of his child and performed

second marriage immediately after death of Anita and out of

that, two female children are also born. It was stated that

appellant would not be able to take care of the child in proper

and effective manner, therefore, welfare of the child would be 3 FAM No.236 of 2018

better in the hands of the maternal grandfather i.e. respondent

and sought for dismissal of the application.

5. Appellant examined himself as PW-1, one Dinesh Kumar

Dhritlahre was examined as PW-2 and other witnesses though

were examined but not cross-examined whereas respondent

on his part examined himself as DW-1, one Suneeta Singh

was examined as DW-2 and child Tanishq Kumar was

examined as DW-3.

6. Learned Family Court, after appreciating and evaluating the

evidence, dismissed the application filed by the father for

custody of his minor child. Hence, this appeal.

7. Learned counsel appearing for the appellant/father would

submit that as per evidence, the respondent is not in hold of

sufficient means to take care of the child. He referred to the

statement of appellant (PW-1), as also the statement of Suklal

Bandhe (DW-1) to say that he was getting only a pension of

Rs.2,065/- per month whereas income of the appellant was

more than Rs.70,000/- - Rs.80,000/- per annum,

consequently, at the mere glance, it would reveal that who

would be in better position to take care of the minor child -

Tanishq. He would further submit that as and when father

wanted to visit, that too was also not supported by the

respondent, consequently, there was no meeting in between

the child and the father, as a result, child refused to meet the 4 FAM No.236 of 2018

father. He would also submit that since the parents are old

aged persons, therefore, in case of any event, future of the

child may not be secured. He referred the judgment laid down

by this Court in the matter of Dhanna Ram v. Mamta Singh 1

to canvass the fact that welfare of the child would be better in

the hands of the father, being natural guardian, consequently,

child may be handed over to the appellant/father.

8. Per contra, learned counsel for the respondent would submit

that before death of appellant's first wife Anita, because of

torture meted out to her, she was forced to stay at her parental

home. He would further submit that immediately after the

death of his first wife - Anita, appellant got married with one

Amrit and out of such marriage, two female children are born,

therefore, he would not be able to take care of the child to the

fullest whereas statements of Suklal Bandhe (DW-1) and

Sunita Singh (DW-2) [ekSlh] would show that they are fully

devoted to take care of the child. He would further submit that

when the child was examined before the Court, he expressed

his opinion not to join the company of the father and,

therefore, his statement cannot be ignored as per mandate of

Section 17 (5) of the Act, 1890. He further referred to the

statement of appellant/father and would submit that he admits

to be unemployed. He placed reliance upon the judgment of

the Supreme Court in the matters of Gaurav Nagpal v. 1 FAM No. 20 of 2019, decided on 27.08.2019 5 FAM No.236 of 2018

Sumedha Nagpal 2; Ashish Ranjan v. Anupma Tandon and

another 3 & Anjali Kapoor (Smt.) v. Rajiv Baijal 4 in support

of his submissions and would submit that welfare of the child

would be a paramount consideration to decide the custody

and taking into evidence, which is on record, it would be

sufficient if custody of the child is given to the maternal

grandfather and mother.

9. On 11.04.2022, statement of the child was also recorded

before this Court, in which, minor child - Tanishq stated that

he does not want to join the company of appellant/father and

wants to stay with the respondent/maternal grand father.

10. We have heard learned counsel for the parties and perused

the record of the Court below, orders and the documents

attached with the appeal.

11. The statute which deals with the situation is the Guardians

and Wards Act, 1890 and Section 4 of the Act, 1890 defines

minor as a person who has not attained the age of majority.

Guardian means a person having the care of the person of

a minor or of his property, or of both his person and

property. Ward is defined as a minor for whose person or

property or both, there is a guardian.

12. Chapter II (Sections 5 to 19) relates to appointment and

2 (2009) 1 SCC 42 3 (2010) 14 SCC 274 4 (2009) 7 SCC 322 6 FAM No.236 of 2018

declaration of guardians. Section 7 deals with `power of the

Court to make order as to guardianship' and reads as

under:

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 property, 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.

13. Section 8 of the Act enumerates the persons entitled to

apply for an order as to guardianship. Section 9 empowers

the Court having jurisdiction to entertain an application for

guardianship. Section 10 to 16 deal with procedure and

powers of the Court. Section 17 is another material

provision and is reproduced;

"17. Matters to be considered by the Court in appointing guardian.-(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to 7 FAM No.236 of 2018

which the minor is subject, appears in the circumstances to be for the welfare of the minor. (2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.

* * * * *

(5) The Court shall not appoint or declare any person to be a guardian against his will.

(emphasis supplied)

14. Section 19 prohibits the Court from appointing guardians in

certain cases.

15. Chapter III (Sections 20 to 42) prescribes duties, rights and

liabilities of guardians.

16. The Hindu Minority and Guardianship Act, 1956 (hereinafter

referred to as "1956 Act") is another equally important

statute relating to minority and guardianship among Hindus.

Section 4 defines "minor" as a person who has not

completed the age of eighteen years. "Guardian" means a

person having the care of the person of a minor or of his

property or of both his persons and property, and inter alia

includes a natural guardian. Section 2 of the Act declares 8 FAM No.236 of 2018

that the provisions of the Act shall be in addition to, and not

in derogation of 1890 Act.

17. Section 6 enacts as to who can be said to be a natural

guardian. It reads thus;

"6. Natural guardians of a Hindu Minor.

--The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are--

(a) in the case of a boy or an unmarried girl:- the father, and after him, the mother;

provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl:- the mother, and after her, the father.

(c) in the case of a married girl:- the husband:

Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section--

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Explanation.--In this section, the expressions "father" and "mother" do not include a step-father and a step-mother.

18. Section 8 enumerates powers of a natural guardian. Section

13 is an extremely important provision and deals with

welfare of a minor. The same may be quoted in extenso; 9 FAM No.236 of 2018

13. Welfare of minor to be paramount consideration.

(1)In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.

(2)No, person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.

(emphasis supplied)

19. Section 26 of the Hindu Marriage Act, 1955 provides for

custody of children and declares that in any proceeding

under the said Act, the Court could make, from time to time,

such interim orders as it might deem just and proper with

respect to custody, maintenance and education of minor

children, consistently with their wishes, wherever possible.

20. The principles in relation to the custody of a minor child are

well settled. In determining the question as to who should

be given custody of a minor child, the paramount

consideration is the `welfare of the child' and not rights of

the parents under a statute for the time being in force.

21. The Supreme Court in the case of Nil Ratan Kundu and

another Versus Abhijit Kundu 5 at para 52 has observed

that in deciding a difficult and complex question as to the

custody of a minor, a Court of law should keep in mind the 5 (2008) 9 SCC 413 10 FAM No.236 of 2018

relevant statutes and the rights flowing therefrom. Further

the Court held that but such cases cannot be decided solely

by interpreting legal provisions. It further observed that it is

a human problem and is required to be solved with human

touch. The Court at para 52 has held thus:-

"52.......... 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."

22. Further the Supreme Court in the case of T ejaswini Gaud

and others Vs. Shekhar Jagdish Prasad Tewari and

others 6 has observed that the welfare of the minor child is

the paramount consideration. The Court in para 26 & 27

reiterated the law laid down in the case of Nil Ratan Kundu

and another Versus Abhijit Kundu 7 . It further referred to

the case of Goverdhan Lal v. Gajendra Kumar 8 and has

6 (2019) 7 SCC 42 7 (2008) 9 SCC 413 8 2001 SCC OnLine Raj 177 11 FAM No.236 of 2018

observed thus in para 26:-

"26. The court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child. The paramount consideration for the court ought to be child interest and welfare of the child."

23. It is well settled legal proposition that while determining the

question as to which parent the care and control of a child

should be given, the paramount consideration remains the

welfare and interest of the child and not the rights of the

parents under the statute. Such an issue is required to be

determined in the background of the relevant facts and

circumstances and each case has to be decided on its own

facts as the application of doctrine of stare decisis remains

irrelevant insofar as the factual aspects of the case are

concerned. While considering the welfare of the child, the

"moral and ethical welfare of the child must also weigh with

the court as well as his physical well- being". The child

cannot be treated as a property or a commodity and,

therefore, such issues have to be handled by the court with

care and caution with love, affection and sentiments

applying human touch to the problem. Though, the

provisions of the special statutes which govern the rights of 12 FAM No.236 of 2018

the parents or guardians may be taken into consideration,

there is nothing which can stand in the way of the court

exercising its parens patriae jurisdiction arising in such

cases.

24. This proposition has been laid down by the Supreme Court

in case of Gaurav Nagpal v. Sumedha Nagpal 9, which

has been further reiterated by the Supreme Court in the

subsequent case law in Ashish Ranjan v. Anupma

Tandon and another 10

25. Bearing these factors in mind, we proceed to consider as to

who is fit and proper to be the guardian of the minor child

Tanishq in the facts and circumstances of the present case.

26. Evidence of father/appellant - Nagendra Kumar Joshi

(PW-1) would show that child was born at his in-law's place

i.e. the respondent and the dispute was existing in between

the parents of child i.e. of appellant with his earlier wife. He

avoided the question as to whether divorce case was

pending in between them, however, affirmed the fact that

his first wife Anita had died on 25.06.2012, which is also

proved by death certificate (Ex.D-2-C). Evidence further

would show that maintenance case was pending in between

them wherein maintenance was ordered to be paid to the

9 (2009) 1 SCC 42 10 (2010) 14 SCC 274 13 FAM No.236 of 2018

wife & child. In examination-in-chief of the father, he avoided

to say or has not made whisper about his second marriage,

which has only come in cross-examination. The appellant

has stated that he got married to one Amrit on 06.07.2012

and out of their wedlock, two female children were born.

Circumstances will speak that within a period of 12 days of

death of first wife, he rushed to marry. Apart from that, in the

cross-examination, he made an averment that he is

unemployed and he is engaged only in the part time private

job. In the cross-examination, he stated that he earned

Rs.70,000/- - Rs.80,000/- per annum.

27. As against this, in the statement of Suklal Bandhe (DW-1),

maternal grandfather, he stated that during the existence of

first marriage, appellant - Nagendra Kumar Joshi, son-in-law,

got married with Amrit , therefore, there was no attachment in

between father and the son, consequently, it would not be

proper for Tanishqa to be in the custody of her step mother.

Narrating certain incident, it is stated that at one point of time,

minor child was sent in the company of step mother, during his

stay, he was not taken care properly and in the entire day, he

was given tea and chips and could only get his meal at the

night after arrival of his father from work. This statement is

corroborated by statement of Tanishq (DW-3), who is son of

appellant, wherein he stated that he was only given biscuit 14 FAM No.236 of 2018

during the entire day and was served with meal only in the

night. In the cross-examination, this fact remained unrebutted,

which is also supported by Sunita Singh (DW-3).

28. With respect of the financial position, certain documents have

been placed by the grandfather stating that he would be able

to take care of the minor child and Sunita Singh (DW-3), who

is sister of deceased Anita, had made statement that she is

working as a Data Entry Operator getting a salary of

Rs.15,000/- and has deposited Rs.9,00,000/- with his father in

the Post Office. Consequently, submission of the appellant

that he is financially well off cannot be given a weightage

more while deciding the custody - qua - welfare of the child.

29. Minor child - Tanishq was examined in this case as DW-3.

While he was examined on 28.05.2018, he was shown to be

aged about 10 years. Perusal of such statement shows that

before he was examined, certain questions were put to him by

the Court and his evidence would show that the minor was old

enough to form an intelligence preference to answer the

question in the examination. In the examination-in-chief, he

stated that he does not want to stay with his father and want

to stay with Sunita Singh (DW-2) [ekSlh ].

30. Statement of Sunita Singh (DW-2) would show that her sister

Anita while on dead bad took a promise from her sister that

she will take care of the child and she has deposed in her 15 FAM No.236 of 2018

statement that she would take care of the child. When the

Statement of child is read along with statement of Sunita

Singh (DW-2), it would show that the minor from many years

of his tender age, after his birth, lived with the grand parents

and her ekSlh and has been well cared for during that time.

There is nothing on the record to show that after birth of the

child in the year 2007, any effort was made by the

father/appellant to protect the interest of minor, which is

having a bearing upon the question of interest and welfare of

the minor. Minor child - Tanishq further in his deposition had

made a complaint that he was not being served with two

meals and only one meal was being served in the night also

raised a question of doubt about the bonafide of the

appellant/father.

31. In Walker v. Walker & Harrison 11, which is reiterated by the

Supreme Court in the matter of Anjali Kappor (Supra),

following paragraph is relevant, which is reproduced below:-

"welfare is an all-encompassing word. It includes material welfare; both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the stability and the security, the loving and understanding care

11 1981 New Ze Recent Law 257 16 FAM No.236 of 2018

and guidance, the warm and compassionate relationships that are essential for the full development of the child's own character, personality and talents."

32. Before applying the aforesaid test in the facts of this case,

though the appellant tried to canvass the degree of affection of

love and due care towards the child, but substantially nothing

come on record except the bald statements and the incidents

happened after death of first wife and proximity of marriage

time does not signals out a very positive message towards

child. On the other hand, the affection shown by the grand

parents and ekSlh ¼cMh eEeh½ appears to be more leans in favour

of minor child to be in their custody.

33. Accordingly, we are not inclined to interfere with the order

passed by the learned Family Court, Durg.

34. In a recent judgment rendered in Ritika Sharan v. Sujoy

Ghosh 12 , their Lordships of the Supreme Court have held that

a balance has to be drawn so as to ensure that in a situation

where the parents are in a conflict, the child has a sense of

security. The interests of the child are best served by

ensuring that both the parents have a presence in his/her

upbringing.

35. Therefore, following the principles laid down in the case of

Yashita Sahu Vs. State of Rajasthan and Ors 13 and in 12 2020 SCC OnLine SC 878 13 (2020) 3 SCC 67 17 FAM No.236 of 2018

the case of Ritika Sharan (supra), we hereby order to

facilitate the grant of visitation and contact right to father.

The following arrangement shall be drawn by both the

appellant and the respondent :-

(i) The appellant/ father would be able to engage with the

child on a suitable video conferencing platform for one

hour every Saturday and Sunday and 5- 10 minutes on

other days.

(ii) Both the appellant / father and the respondent in order

to facilitate the video conferencing in between father

and the child shall procure smart phones which would

facilitate the inter-se video calling.

(iii) Since both the parties are living in the same district,

we direct that on a fortnight basis on the working

Saturday the child would be produced before the

Family Court, Durg at about 10.30 to 11 a.m. by the

respondent. Wherefrom the child may be taken by the

father for entire day and shall be returned in between

4.30 to 5 pm before the family Court to enable the

respondent to get back the custody.

(iv) During the long holiday/vacation covering more than

two weeks, the child would be allowed to be in the 18 FAM No.236 of 2018

company of the father for a period of 7 days and to

facilitate the same, the curriculum of the

School/holidays shall be placed before the Family

Court, Durg, which shall also be ensured that academic

pursued of the child may not be disturbed

(v)During the festival Dussehra, Diwali and Holi, the father

may join the company of the child either at place of

respondent or in an independent venue for a limited

period of time 1-2 hours for a day. The father would

intimate place of venue through the intervention of the

family Court well before time.

36. With the aforesaid observations & directions, the appeal

stands disposed of.

Sd/- Sd/- (Goutam Bhaduri) (N.K. Chandravanshi) Judge Judge

Amit