Madhya Pradesh High Court
Surendra Patel vs Ritu @ Vandanav Patel on 10 July, 2014
Author: Alok Verma
Bench: Alok Verma
1 Misc. Appeal No.402.2013
HIGH COURT OF MADHYA PRADESH : JABALPUR
DIVISION BENCH : HON'BLE SHRI JUSTICE RAJENDRA MENON
HON'BLE SHRI JUSTICE ALOK VERMA
Misc. APPEAL No.402 of 2013
1.Surendra Patel s/o Ramji Patel
aged about 28 years,
R/o village Shrinagar,
Police Chowki Jhoteshwar,
P.S. and Tahsil Gotegaon,
District Narsinghpur (MP)
2. Smt. Sunita Kushwaha w/o Ajay Kushwaha,
R/o village Themi,
Police Staion Themi,
Tahsil and District Narsinghpur (MP)
APPELLANTS
Versus
Ritu @ Vandana Patel w/o Surendra Patel,
aged about 24 years,
R/o C/o Bharatlal Kushwaha,
Village Gidhwani,
P.S. And Tahsil Kareli,
District Narsinghpur (MP)
RESPONDENT
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Shri B.S.Sahu, learned counsel for the appellants.
Shri Chaudhary Rahul Singh, learned counsel for the
respondent.
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J U D G M E N T
(10/07/2014) As per Alok Verma, J:-
This appeal has been filed under Section 47 of the Guardians & Wards Act, 1890 and directed against the order passed by the learned First Additional District Judge, Narsinghpur (MP) in Misc. Civil Case No.09/2012 dated 07/01/2013, whereby the learned 2 Misc. Appeal No.402.2013 Additional District Judge allowed the application filed by the respondent/applicant/wife Ritu @ Vandana Patel and granted custody of her daughter Vaishnavi aged about 2 yeas at the time of passing the order.
2. The facts of the case are that the appellant was married to the respondent Ritu alias Vandana on 18/04/2009. Thereafter, a daughter Vaishnavi was borne, out of their wedlock. After sometimes, discord aroses allegedly on demand of dowry by the appellant. Thereafter the respondent left the house of the appellant and started living with her parents. The assertion of respondent is that her daughter was forcibly snatched by the appellant, therefore, she lodged an First Information Report (FIR) against the appellant which is under investigation.
3. On the other hand, the appellant alleges that the respondent left his house on her own. She was not taking care of her daughter and was not keen to give birth to the child and she also tried to avoid the delivery during her pregnancy. Under such allegations and counter allegations, the application under Section 25 read with Section 12 of the Guardians & Wards Act, 1890, was filed by the respondent before the learned First Additional District Judge, which was decided by the aforesaid impugned order and the custody of the child (daughter Vaishnavi) was handed over to the respondent.
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4. Aggrieved by the aforesaid order, this misc. appeal is filed by the appellant alleging that the child was living with him and his mother Smt. Sunita Kushwaha (Appellant No.2), when due to the order of the Court her custody was handed over to the respondent. According to him, respondent was never interested in the child and she left the child on her own and she was living with her parents on its own sweets will. As the interest of child for taking care more effectively by the father, the custody of the child be handed over to the father.
5. We have heard learned counsel for both the parties and perused the impugned order.
6. The learned counsel for the applicant draw our attention to para 8 of the statement of Bharat (PW-2) father of respondent (Ritu @ Vandana), who admitted therein that the respondent has been living with him and taking care of her handicapped mother. In the light of the statements of Ritu alias Vandana (PW-1) and Bharat (PW-2), the learned counsel pointed out that the respondent left the house of the appellant on her own for serving and taking care of her handicapped mother. Learned counsel has also drew our attention to para 10 of the statement of respondent Ritu @ Vandana (PW-1), wherein she admitted that there is a police post at Jhoteshwar which is near to her village to show that FIR lodged against her was false and have lodged the report in the Police Station.
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7. The learned counsel for the respondent argued that under Section 6 of the Hindu Minority & Guardianship Act, 1956, it is directed that ordinarily up to the age of 5 years, the custody of the minor child should remain with the mother. He also submitted that there is nothing on record to show that after the child given in the custody of her mother, her physical well being had been adversely effected.
8. Most of the facts are disputed in this case but it hardly matters how the child was in the custody of her father, when the impugned order was passed and her custody was delivered to her mother.
9. The paramount consideration of this case is "the welfare of the child" and not the rights of her parents. On this point, a judgment of this Court in the matter of Rajeev vs. Santosh Kumar, 2014 (2) MPLJ page 408, may be referred in which it was held that in case of minor girl, paramount consideration is "welfare of child" and not rights of her parents. We may also refer the judgment of Hon'ble Supreme Court in the case of Gaurav Nagpal vs. Sumedha Nagpal, passed in Civil Appeal No.5099/2007 on 19/11/2008, wherein in para 40 of the judgment, the Hon'ble Supreme Court has observed that "Merely because there is no defect in his personal care and his attachment for his children, which every normal parent has, he would not be granted custody. Simply because the father loves his children and is not 5 Misc. Appeal No.402.2013 shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him. Children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield 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 court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the 25 requirements of welfare of the minor children and the rights of their respective parents over them."
10. The Hon'ble Court also referred the order passed in Surinder Kaur Sandhu (Smt.) vs. Harbax Singh Sandhu, 1984 (3) SCC 698, wherein it was held that Section 6 of the Act constitutes father as a natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. Further in para 43 in its judgment, the Court observed that the moral and ethical welfare of the child must also weigh with the Court as well as its physical well being.
11. Returning back to the present case, it was informed by the learned counsel to the Bench during the argument that both the families belong to agricultural class. They have similar financial and 6 Misc. Appeal No.402.2013 social background. The daughter is still 4½ years old and the mother is capable for taking care her properly.
12. Since both the families have similar financial and social background. The child is still below five years of age, we find that the impugned order is according to the principles laid down in the aforementioned cases of the Hon'ble Apex Court and does not call for any interference.
13. In view of the aforesaid, we find no infirmity in the impugned order passed by the learned First Additional District Judge, Narsinghpur, including the visitation rights that were granted to the appellant/father by the impugned order.
14. In the result, the appeal is, therefore, dismissed. Parties to bear their own costs.
(RAJENDRA MENON) (ALOK VERMA)
JUDGE JUDGE
manju
7 Misc. Appeal No.402.2013