Somprabha Rana vs Pushpendra Singh

1 MA-9514-2025 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SMT. JUSTICE ANURADHA SHUKLA ON THE 6 th OF MARCH, 2026 MISC. APPEAL No. 9514 of 2025 SOMPRABHA RANA Versus PUSHPENDRA SINGH Appearance: Shri Sachin Jain and Ms. Vedika Soni - Advocates for the appellant. Shri Suryapal Singh Chouhan and Shri Rishiraj Trivedi - Advocates for the respondent on caveat.

Reserved on : 10.02.2026 Pronounced on: 06.03.2026

ORDER

This appeal has been preferred by the aunt ( mausi) of a minor girl for having been aggrieved by the judgment passed on 17.11.2025 by First District Judge, Panna, in MJC No.02/2024. Under the impugned judgment appellant, who is admittedly having the custody of minor girl, was denied the legal guardianship of the child and the petition filed by appellant under Section 7 of the Guardianship and Wards Act,1890 (for short 'the Act') was dismissed.

2. Facts in brief are that, minor girl, whose guardianship is under dispute here, is the daughter of respondent, with whom the mother of minor girl was married on 27.01.2019. On 27.01.2022,

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2 MA-9514-2025 the minor girl was born and on 27.12.2022 her mother died by hanging. Admittedly, a police case was registered against respondent which is still pending. According to appellant, the respondent refused to have the custody of minor girl, therefore, appellant, after the last rites of the mother of child, brought the girl with herself and is having the custody of child since that day. Further contention was that in order to avoid the punishment in the criminal case, respondent was creating pressure for the custody of child. A petition under Section 7 of the Act was, therefore, filed by appellant to declare her the legal guardian of the person of minor child.

3. The application for guardianship was opposed by respondent-father, claiming that his daughter was fraudulently taken away from his custody and later appellant and her relatives refused to handover the custody. It was further claimed that the financial status of appellant is not sound; she is a widow lady, having a responsibility to look after her minor son, who is suffering from serious stage of diabetes and regularly takes insulin injections. Further, it was pleaded that a habeas corpus petition was filed by respondent and his family members as W. P. No.11004/2023 before the High Court of Madhya Pradesh, which was allowed on 23.06.2023 but was challenged before the Hon'ble Apex Court in Criminal Appeal No.3821/2023 and under its order dated 06.09.2024, the Apex Court allowed the visitation rights to the respondent-father. Facts of these earlier litigations are

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3 MA-9514-2025 purposely concealed by the appellant. It is submitted that appellant has no legal right to keep the minor daughter of respondent in her illegal custody. A request was, therefore, made to dismiss the petition.

4. The Court below, in the para no. 26 of the impugned judgment, observed that respondent is the natural guardian of minor child, whose mother, the other natural guardian, has already passed away and appellant, who is merely the aunt (mausi) of the child, has not been able to prove that she has sufficient property or bank balance to give proper care and education to the minor child. The Court also held that grand parents of minor child are there to give affection and care to her and respondent has sufficient financial means. Accordingly, the Court below, after holding that the best interest of minor child would be protected with respondent, dismissed the petition.

5. In this appeal, the appellant has questioned the finding given by the Court below regarding her financial status and has filed documents under an application (I.A. No.708/2026) of Order 41 Rule 27 CPC to show that child is receiving best education and appellant has all the necessary financial means to look after her. It is also contented that the trial Court has evaded to answer the question on who would look after the interest of child if respondent and his mother are convicted in the criminal case, as trial is pending against both of them. Appellant has also drawn the attention of this Court to the observations made by the Hon'ble

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4 MA-9514-2025 Apex Court, in its decision dated 06.09.2024 in Criminal Appeal No.3821/2023, about repeated queries that were made, by the Hon'ble Apex Court from the counsel representing the respondent- father, on whether he was willing to apply for custody. It is further submitted that, even thereafter, no application for custody was filed before the trial Court by the respondent. Therefore, a request has been made to set aside the impugned order and grant the relief as claimed by the appellant in the original petition.

6. Respondent has contested present appeal and also the application of Order 41 Rule 27 CPC. Further, he also filed an application under Section 25 of the Act, marked as I.A. No.25281/2025, and also an application for seeking interim custody of child under section 12 of the Act, marked as I.A. No.25280/2025. Thus, he is vehemently opposing the claim of appellant to keep the minor girl in her custody or to appoint her as the legal guardian of the child.

7. Counsel for both the parties have been heard on all the pending applications and also on the merits of appeal. The record of the trial Court has been perused.

8. Admittedly, a writ of habeas corpus registered as Writ Petition No.11004/2023 was filed by the respondent-father along with the grandparents of child, which was allowed on 23.06.2023 directing the present appellant and others to handover the custody of minor child to her father and other paternal relatives. Appellant challenged this order before Apex Court. The order passed in that

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5 MA-9514-2025 Criminal Appeal No.3821/2023 reveals that on 05.12.2023 leave to appeal was granted by Hon'ble Apex Court and stay was granted on the order passed in a habeas corpus writ petition. The Court observed that it would be open for the husband to apply for the custody before the appropriate court. It is an admitted fact that for seeking interim and regular custody of minor child, respondent-father has filed two applications before this Court only and had never moved any application for the same relief before any other Court. There is no explanation available on record, either in the applications for seeking custody or, otherwise, why, despite the liberty given by Hon'ble Apex Court in Criminal Appeal No.3821/2023 under order dated 05.12.2023, the respondent-father did not move any application for custody before any competent Court.

9. The Hon'ble Apex Court, in its judgement dated 06.09.2024 held that a dispute of custody of child cannot be decided in a petition under Article 226 of the Constitution of India and took a view that only in substantive proceedings under the Guardians And Wards Act, 1890 can the appropriate Court decide the issue of child custody and guardianship. The Hon'ble Apex Court also gave vent to the fact that despite being asked repeatedly, there was no willingness on the part of respondent-father to apply for the custody of child. This itself explains, why no application for custody of child was filed before a competent court, despite the liberty discussed in the judgment of Apex Court. Para 12 of the

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6 MA-9514-2025 same judgment further reflects that a willingness was expressed by present appellant and co-appellants before the that Court to apply for declaration of their right as a guardian and also for retaining the custody. The Hon'ble Apex Court although observed that the earlier application filed by them was withdrawn but, holding that issue of custody is never final , allowed them to apply to the regular Court for custody. It further observed that even in the petition filed by appellants, the competent Court can permit the father to take over the custody if it is satisfied that the welfare of the minor requires custody to be granted to the father.

10. In this backdrop of events, the petition for seeking declaration of guardianship was filed by appellant, but it stood dismissed under the impugned order. The analysis of impugned judgment reflects that the trial Court was impressed by the facts that respondent was the natural guardian of minor child being her father, minor child was only three years old, appellant was not able to prove that her financial status was satisfactory enough to take care of the needs of minor child and further, there are paternal grandparents, besides father, who can look after her needs of general welfare, love and affection. It is clear that in the entire impugned order, the trial Court gave no thought to the fact that the three-year-old minor child was continuously with the appellant since the death of her mother on 27.12.2022 and, admittedly, she was only 11 months old that time. Definitely, an eleven month old child would not be having any shared memories with her father or

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7 MA-9514-2025 paternal grandparents but from that age onwards her environment and surroundings are her world window. Therefore, respondent- father and her parents are complete strangers to the minor child. Presently her age is only 4 years and it is hard to imagine how a young child of 4, who has become alive to her surroundings and relations, would survive and thrive, brightly and heartly, in a new and strange setup of her father's house. Apparently, no attempts were made by respondent-father to establish bonding with the minor child during the pendency of petition for guardianship or at any previous stage.

11 . From the facts discussed so far, it can be gathered that even on repeated queries by Hon'ble Apex Court, no inclination was shown by respondent-father to seek the custody of child nor he made any attempts, at later stage, to develop a bonding with her despite being offered the access under visitation rights. His attitude towards parenting seems to be disjoint, measured and ballooning, suggesting only a passing affection towards the child with a planned impulse to now take her control. It is not explained why the paternal grandparents of minor child too failed to show any affection to her or to try to establish any bonds with her in this long period of separation. Taking clue from their earlier irresponsible behaviour, this court has apprehension that interest and welfare of the child would not be taken best care by her father and paternal grandparents and the uprooting of minor child from a familiar world of her emotional and personal upbringing may

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8 MA-9514-2025 cause a trauma to her, which may last for years with untold damage to her personality. Thus, in this Court's opinion, enrooting the child in an altogether alien world is definitely not a prudent and plausible option.

12 . According to respondent, appellant is a widow lady, who already has the liability of taking care of her minor son, suffering from a serious stage of diabetes with a regular dose of insulin. The reply further claims that the financial status of the father of appellant is not viable. Strangely, the reply is completely silent on the financial status of appellant herself and incidentally no point of determination was framed by the trial Court on this aspect. It is further strange that the trial court still gave a finding that no evidence was led by appellant to prove her financial viability. Unless a party is called upon to prove a point under settled issues/points of determination on that aspect, no negative finding can be given against it, especially in a case where no rebuttal pleadings are there on record. Thus, it is held that the trial court was in grave error when it decided the petition against appellant holding that she was not having a good financial condition. 13 . Several cases that have been cited by the counsel for respondent need to be mentioned here. They are Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others (2019) 7 SCC 42, Vivek Kumar Chaturvedi and another v. State of Uttar Pradesh and others (2025) 4 SCC 342, Gautam Kumar Das v. NCT of Delhi and others (2024) 10 SCC 588, Smt. Sucheta

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9 MA-9514-2025 Bhadoria v. Ambrish Singh (First Appeal No..571/2024, decided by Gwalior Bench of M.P. High Court on 18.12.2024) and Anand Kumar v. Lakhan Jatav (First Appeal No.2526/2018, decided by Gwalior Bench of M.P. High Court on 16.11.2022) . In this set of judgments, the principles laid down are notably : the writ of habeas corpus is maintainable where detention by a parent is illegal; the welfare of the child is the paramount consideration; the authority of law to have the custody of minor child is with the natural guardian; the various aspects of welfare of Child shall include factors like ethical upbringing, economic well-being, child's ordinary comfort, contentment, health, education, better exposure in life and growth etc.; merely for the reason that relatives took care of the child for sometime, they cannot retain the custody of child forever; in case of no allegation of matrimonial dispute between father and mother, the custody of child should be given to the father in case of death of mother; and aging claimants should not be handed over the custody of child, as with old age complications, they would not be able to take care of the welfare of a growing child.

14 . Presently the maintainability of habeas corpus petition is not under consideration and so far as the other parameters discussed in various citations for deciding the issue of custody, it can be observed that on none of these parameters, the appellant can be denied the relief claimed. In his reply, respondent-father has claimed that after the order of Hon'ble Apex Court, he

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10 MA-9514-2025 exercised visitation rights on many occasions and a bonding was reached between him and the minor child to such an extent that she had started addressing him as a father, but not a single word has been stated on this fact by respondent in his testimony on oath nor any order sheets of DLSA have been produced to show recuperation of ties between father and daughter. The documentary evidence filed on record are restricted on the aspects of profession, education, financial well-being of respondent-father and also the orders of bail passed in the case of dowry death. 15 . The judgment of Nil Ratan Kundu and another v. Abhijit Kundu (2008) 9 SCC 413 has been relied upon by the counsel for appellant in which it was held that to select the guardian, the Court's jurisdiction is parens patriae. This judgment relies upon an earlier judgment of Apex Court in Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu and another (1984) 3 SCC 698 in which it is held that though the father is a natural guardian of a minor child, but this aspect cannot supersede the paramount consideration as to what would be conducive for the welfare of the child. The other judgments relied upon by him for similar proposition are Shazia Aman Khan and another v. State of Orissa and others (2024) 7 SCC 564 and Anjali Kapoor (Smt.) v. Rajiv Baijal (2009) 7 SCC 322.

16. It can't be disputed that the minor child is in the custody of appellant and question of custody was not res in judicio before the Court below. More specifically said, the issue of who should have

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11 MA-9514-2025 custody was never actually placed before the Court below for a decision. This Court is, however, called upon to decide the question of custody under two separate applications filed by respondent-father. On the basis of facts and legal propositions discussed so far, this Court holds that the child's best interest are optimally preserved within the current familiar environment provided by the aunt (mausi), the appellant, and respondent-father, who has shown only a paper-thin parenting, which has neither depth nor volume, can not be entrusted with the task of prime care-giver. Thus, the applications filed by respondent, under Sections 7 and 25 of Guardianship and Wards Act, for seeking interim and also regular custody of child, are dismissed herewith.

17 . Admittedly, respondent-father is the natural guardian of minor child and by deciding the sole question of guardianship, the trial Court refused to confer the status of legal guardian on appellant Somprabha, the mausi of minor child. It may be understood here that guardianship and custody are entirely two different concepts and in appropriate cases, despite being a guardian, a person may be denied the custody of his ward. Same is the case here. The question that was posed before trial Court was whether a reasonable case was made out to strip the respondent of his status of a natural guardian to the minor child. For taking away this status, it was obligatory to show that he was acting against the interest of the minor child. No evidence to that effect was

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12 MA-9514-2025 produced in the case by appellant. Hence, a case for divesting the respondent-father of his status of natural guardian and creating the status of a legal guardian in favour of appellant was never made out before the trial Court. Thus, the finding of the Court below to dismiss the petition of appellant for legal guardianship is sound, just and legal. The obvious fallout of confirming said finding is that respondent shall continue to be the natural guardian of the minor child. However, it is added that his two applications seeking custody of minor daughter have been dismissed by this Court.

18. Summing up the discussion, the minor child shall continue in the custody of her mausi, appellant Somprabha, so long she takes best care of the interest of child. It needs to be added here that respondent-father being the natural guardian of minor child, may meet the child. Presently the child is studying at Bhopal. Therefore on every fourth Saturday of a month, the respondent- father and the paternal grandparents of the child may meet her in the Office of Secretary of District Legal Services Authority, Bhopal, between 3 p.m. and 5 p.m., under the supervision of Secretary to District Legal Services Authority, Bhopal. If required, the Secretary to District Legal Services Authority shall take the assistance of any child psychologist or psychiatrist for establishing a bond between respondent/grand parents, on one hand, and the child, on the other. Once the child becomes cognitive of this bonding and starts responding with emotions and depth towards this relationship, the respondent shall be at liberty to apply before

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13 MA-9514-2025 competent Court for reconsideration of issue of provisional/permanent custody. As expressed by the Hon'ble Apex Court in Criminal Appeal No.3821/2023, the orders of the Courts regarding custody are never final. Thus, looking to the evolving needs of the minor child and her holistic welfare, the rights of the parties litigating here, are not been given any static interpretation. Let the paramount welfare of minor child must reign supreme and be held high and protected proactively by both the parties leaving aside the acrimony of litigation.

19 . The appeal is accordingly disposed of.

20 . Let a copy of this order along with the record be send back to the concerned Court for information and necessary compliance.

(ANURADHA SHUKLA) JUDGE

ps

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