Rajasthan High Court - Jaipur
Mangu Ram vs Puran Mal on 9 July, 1997
Equivalent citations: 1997(3)WLC597, 1997(2)WLN60
JUDGMENT Arun Madan, J.
1. The petitioner who is the maternal grand-father of the child Urmila aged about 7 years has moved this Court by way of revision petition against the interim order dated 6.10.1993 of Addl. District Judge, Neem-Ka-Thana in Case No. 13/93. whereby the said court had directed the petitioner to hand-over the custody of female child Urmila to the father (non-petitioner) against whom investigation is reported to be pending with the local police on account of murder of his wife. The petitioner has sought the relief to the effect claiming that the custody of the said child who is already with the petitioner should continue to remain with him since the welfare, upkeep and further development of the said child has in no way been effected and he has made all sincere efforts to look after the said child in all possible manner to the best of his ability by looking after her health and education.
2. The facts which are relevant for deciding the controversy between the parties briefly stated are that the petitioner's late daughter Smt. Rama Devi was married to non-petitioner according to Hindu Rites and ceremony on 8th June 1987 at District Nagaur Rajasthan. The petitioner had done all his best according to his means to solemnize the marriage between the parties and marital relationship between the parties continued well for a short duration. A female child Urmila was born to the parties in the year 1989. After couple of years, a marital relationship between the petitioner's late daughter Smt. Rama Devi and the respondent deteriorated and the reports were received by the petitioner regarding the alleged cruelty and inhuman behaviour of the respondent husband towards his daughter. It has been further con ended in the petition that late Smt. Rama Devi died under mysterious Circumstances and the petitioner was not even given any intimation regarding her death either by the non-petitioner nor by her in-laws and she was cremated by them in mysterious circumstances on 2nd April 1993. Even the local police was informed regarding her mysterious death which created all suspicion about their conduct and their possible involvement.
3. As soon as the petitioner became aware of this fact, an FIR was lodged bearing No. 62/1993, under Sections 304B and 498A IPC with Police Station Khandela District Sikar by the petitioner against the respondent as well as the parent in laws. The petitioner has also contended in the petition that soon after the solemnisation of the marriage of his late daughter Smt. Rama Devi, her in-laws use to make regular demands to the petitioner for dowry which he was unable to meet on account of meagre resources and when the petitioner visited the marital home of his daughter late Smt. Rama Devi at her Village Kotari, he made inquiries with regard to the welfare of the minor child Miss Urmila and he found her in deteriorated state of health and insisted to take her alongwith him. Looking to the condition of his grand daughter he took the child alongwith him back to Village Malasar in District Nagaur since he entertained the reasonable apprehension that the child may not meet the same fate as his late daughter. Soon thereafter, the petitioner preferred a petition before the learned District Judge. Neem Ka Thana wherein he sought and prayed for declaration that the guardianship of the said child Miss Urmila be handed over to him and he also gave assurance to the Court that he shall take all necessary steps for the welfare, upkeep, maintenance and for the development and protection of the said child vide an application dated 15.10.1993 which is Annex,2 on the record. The application was moved under Section 10 read with Section 13 of the Guardians and Wards Act, 1958. The respondent on being noticed by the learned Additional District Judge, Neem-Ka-Thana, contested the said petition on various grounds and had also sought a direction from the court that the custody of the child Miss Urmila be given to him. Learned Trial Court after hearing the detailed arguments of both the parties, passed an interim order on 6.10.1993 Vide (Annexure-5) by which it was directed that the custody of the child Urmila should remain to continue with the father i.e. the non-petitioner herein. The trial court further directed that a sum of Rs. 25.000/- shall be deposited by the father i.e. non-petitioner in the 14 years recurring account with any nationalised Bank and the said money shall be Utilised for the welfare and upkeep of the said child. The non-petitioner was further directed that he shall produce the child Miss Urmila before the said court every month with a view to ascertain its welfare and development by the said court.
4. The petitioner being aggrieved by the impugned order dated 6.10.1993 passed by the learned Additional District Judge, Neem Ka Thana has come in revision before this Court which is being dealt with and finally disposed of by this order. During the pendency of this revision petition, this Court had given a detailed hearing to the learned Counsel for the parties from time to time and had also directed the petitioner to produce the said child Miss Urmila in Chambers of this Court, in view of the request made by the learned Counsel for the parties in this regard and the child was accordingly produced before this Court on 23.1.1996.
5. With a view to ascertain the development of the said child, its welfare and upkeep this Court was informed by the petitioner that the child was studying in the Indira Bal Niketan at Maulasar in the First class, & now has been promoted to the third standard.-During the course of hearing learned Counsel for the petitioner has also tendered for the perusal of the court the original copy of the progress report for the session 1996-97 duly certified by the Head Mistress of the said school which also contains the record of the marks obtained by the said child. Its perusal reveals that the child has secured 79.75% in aggregate and secured 3rd position in her class with 98% attendance. This obviously shows that the progress of the child in the custody of the petitioner pursuant to the directions given by this Court on 23.1.1996 has not been hampere in any manner and it is further evident that the petitioner has taken all possible steps and due care for the welfare, upkeep and development of the child, when the child was produced before this Court, on 10.10.1995 I had specifically put some questions to the child with a view to ascertain her I.Q. and mental development and she replied to all the questions in a very fair and candid manner I had further ascertained her mind in the presence of the patties and their learned Counsel as to in whose custody she would like to remain. The said child positively replied that she would like to remain in the custody of maternal grand-father i.e. the petitioner herein. During the course of further hearing on 8.1.1996 this Court had also directed the petitioner to file an affidavit alongwith the attested copies of the documents from the Principal of the School where the child is studying alongwith her progress report. The learned Counsel for the petitioner had accordingly filed a comprehensive affidavit containing all relevant particulars in this regard after having sewed an advance copy to the learned Counsel for the respondent. The child was directed to be produced before this Court on 23.1.1996 in the Chambers and accordingly the child was produced on the said date. With a view to ascertain the intelligence of the said child, this Court had put certain questions to child and the child in her own hand- writing in pursuance to the queries raised by this Court had replied to the said question in a very intelligent manner. I am happy to note from the perusal of the progress report of Urmila issued by her school authorities that the child has been properly looked after by the petitioner and that she is receiving best education and the petitioner as maternal grand father has looked after the maintenance, development, health and upkeep of the said child as a guardian to the best of his ability as compared to the neglect of the said child earlier done by her own father i.e. non-petitioner herein who in view should have been more careful and vigilant in this regard more particularly after the death of his wife in mysterious circumstances as aforesaid.
6. I have heard learned Counsel for the parties and also perused the relevant documents on the record and the relevant provisions of law on the subject. I deem it appropriate to refer to the provisions of Section 17 of the Guardians and Wards Act, 1890 which are referred herein-below:
17(1) In appointing or declaring the guardian of minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to 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.
(4) Omitted on 1.4.1951 (5) The Court shall not appoint or declare any person to be a guardian against his will.
7. Keeping in view the facts and circumstances of the case and also in view of the fact that the child while in the custody of the petitioner pursuant to the directions of this Court during the pendency of this petition allowing the interim custody of the said child to remain and continue with the petitioner and which has remained with him since the year 1993. I deem It appropriate to direct that the custody of the said child shall remain with the petitioner throughout pending the hearing and final disposal of the proceedings before the learned District Judge/Additional District Judge, Neem Ka Thana arising out of Case No. 13/1993 under the Guardian and Wards Act, 1890 before the said Court.
8. As a result of above discussion, the impugned order dated 6.10.1993, passed by the learned Additional District Judge, Neem Ka Thana, in case No. 13/1993, is quashed and set-aside. As a result, the learned District Judge/Additional District Judge, Neema Ka Thana is directed to hear and decide this case expeditiously and as far as possible within 90 days from the date of the receipt of the certified copy of this order. It is further directed that the observations made above shall not prejudice the contentions to be advanced by the learned Counsel for the parties before the said Court.
9. Before parting with the case, I would like to leave a note for guidance for the presiding officers concerned in courts constituted under the Guardians & Wards Act to the effect that where matrimonial relations are either strained between the parties or where one of the parties to the marriage has met untimely death under mysterious-circumstances such as in the instant case or where criminal proceedings are pending against either of the spouse, the Court having the jurisdiction to deal with the cases relating to the child custody under the Guardian and Wards Act should be more cautious and vigilant before passing the interim orders granting the custody of the minor child to either of the parents of the said child claiming custody particularly in those cases when: they are facing criminal charges arising out of either the police investigation or trial before the Competent Court. In the instant case, since the husband has been facing police investigation earlier and also the criminal trial later on account of the death of his wife under the mysterious circumstances, this Court had thought it appropriate to grant interim custody of the child-Urmila to the maternal grand-father i.e. the petitioner herein pending the hearing and disposal of this revision petition.
10. My observations are further fortified from the judgment of the Apex Court in the matter of Shri Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashankar Joshi, . In this case before the Apex Court, the respondent-Pradip Kumar Karunashankar Joshi was married to the appellant Shri Kirtikumar Maheshankar Joshi and out of the said wed-lock a male child was born on 20th July and a daughter was born on August 12, 1981. Unfortunately, the respondent's wife died on January 12, 1991 and the cause of death mentioned in the post mortem report was "car-diorespiratory arrest due to some chemical poisoning..."
11. As a result the husband was facing criminal charge under Section 498A IPC. On February 17, 1991, the police recorded the statements of the children. During the relevant time Pradeep Kumar, appellant alongwith his family was residing at Rajkot and after the death of respondent's wife, two minors left their fathers' house for Jamnagar to live with the family of their mother's brothers/sisters. Since then both the children are living with their maternal uncle i.e. the appellant in the said case. Kirti Kumar i.e. the appellant's brother filed an application before the District Judge, Jamnagar under the Guardian and Wards Act on 13.2.1991, seeking a declaration that Pradip Kumar, the father of the children was unfit to be the guardian of minor children and further prayed that he be appointed as guardian of the minors. Consequently, an interim order was passed by the learned District Judge, Jamnagar.
12. Aggrieved by the order of the District Judge, Rajkot, dated 22nd April 1991, the appellant filed a Civil Revision before the High Court. The learned Single Judge of the High Court by his order dated 24th July, 1991, decided the said civil revision and transferred the case pending before the District Judge, Jamnagar to the Court of District Judge, Rajkot. The petitioner filed L.P.A. against the judgment of the learned single Judge which came to be dismissed by the Division Bench of the High Court on 9.1.1992 on the ground that L.P.A. was not maintainable against the Judgment of the learned single Judge and this is how Special Leave Petition was preferred before the Apex Court.
13. The Apex Court after taking over-all view in the matter and in view of its interim order dated 27th March, 1992, when the said two minor children were produced before the learned Judge of the Apex Court in Chambers, had the occasion to examine the I.O. of the minor children when the children were present alongwith the parties to the case. The Apex Court was of the view that both the minor children were intelligent and more mature than their age. The children categorically stated that they are not willing to live with their father. The Apex Court was further of the view that since the said minor children were well looked after by their maternal uncle Shri Kirti Kumar, the appellant and on taking stock of the entire situation, the Apex Court held that it would not be in the interests and welfare of the children to hand-over their custody to their father-Shri Pradip Kumar notwithstanding the fact that he was the natural guardian and had preferential right to custody of the minor children as against their maternal uncle but keeping in view the facts and circumstances of the case and also the wishes of the children, who according to the Court were intelligent enough to understand their well being consequently disposed off the appeal preferred by the father of the minor children by giving appropriate directions that the minor children shall remain in custody with their maternal uncle while the father of the children shall be permitted to meet the children only on holidays or any other day with prior notice to the appellant.
14. I am of the view that the ratio of the aforesaid decision of the Apex Court is fully attracted to the facts of the present case and the learned trial court shall take into consideration the above observations of the Apex Court as well as of this Court before finally deciding the matter pending before it.
15. The Deputy Registrar (Judicial) is directed to send a copy of this order to all the concerned presiding officers not below the rank of District/Addl. District Judge's/Judges subordinate to this Court for their information and guidance.
16. The revision petition is accordingly allowed and disposed of with the above observations. The parties are directed to bear their own costs. In the event of the petitioner apprehending any threat with regard to the welfare and custody of the child Urmila, he shall be at the liberty to move in this regard for obtaining necessary direction including the police protection from the learned District Judge/Additional District Judge, Neem Ka Thana and the said court after hearing the parties shall pass necessary orders in accordance with law.