Bombay High Court
Bhagwan S/O Haribhau Rathod vs Ashok S/O Santram Pawar on 18 July, 2012
Author: S. S. Shinde
Bench: S. S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5265 OF 2011
Bhagwan s/o Haribhau Rathod
Age 50 years, Occ. Agriculture,
R/o. Sarfarajpur Tanda,,
Tq. Parali Vaijinath, District Beed ...Petitioner
Versus
Ashok s/o Santram Pawar,
Age major, Occ. Agriculture,
R/o. Krashna Nagar Tanda
Mamdapur, Tq. Parali Vaijinath,
District Beed ...Respondent
.....
Mr. K.B. Jadhavar, advocate for the petitioner
Mr. Vivek Bhavthankar, advocate for respondent
.....
CORAM : S. S. SHINDE, J.
DATED : 18TH JULY, 2012
JUDGMENT:-
1. Heard.
2. Rule. Rule returnable forthwith. By consent, heard finally.
3. This writ petition takes exception to the judgment and order dated 8.8.2009 passed below Exh.23/B and the order of 'No. W.S.' ::: Downloaded on - 09/06/2013 18:50:04 ::: wp5265.11 -2- dated 17.2.2007 passed below Exh.18, in Misc. Civil Application No. 19 of 2006, by the learned District Judge-1, Ambejogai.
4. The background facts of the case, as disclosed in the writ petition, are as under:-
It is the case of the petitioner that the respondent herein filed Misc. Civil Application No. 19 of 2006, before the learned District Judge, Ambejogai under Section 6 of the Hindu Minority and Guardianship Act 1956. The petitioner herein was respondent in the said application. Though the petitioner caused his appearance, did not file his say, as a result, the averments in the Misc. Civil Application as also the affidavit of the evidence at Exh.5, filed by the respondent herein, and the contents in original application, remained uncontroverted.
It is further case of the petitioner that the respondent is son-in-
law of the petitioner, while in custody of the respondent, daughter of the petitioner, died in Karnataka State. It is further case of the petitioner that he suspects about the death of his daughter and therefore, the petitioner has taken minor child 'Krishna' in his custody immediately after the death of his daughter. At the relevant time, the said child viz. 'Krishna' was just 1½ months old. The petitioner has ::: Downloaded on - 09/06/2013 18:50:04 ::: wp5265.11 -3- taken his minor grandson 'Krishna' with him for taking his necessary care.
It is further case of the petitioner that the respondent i.e. original applicant, taking recourse to the provisions of Section 97 of Cr.P.C.
had filed Misc. Criminal Application No. 23 of 2006 on 25.1.2006, in the Court of learned J.M.F.C. Parali Vaijinath, for search warrant.
However, the said application came to be rejected on 16.2.2006.
It is further case of the petitioner that the respondent has filed Misc. Civil Application No. 19 of 2006. The said application was dismissed for default on 16.6.2009. Thereafter, the application for restoration of the said application was filed on 16.6.2009. The concerned Court has set aside the order of dismissal in default and restored the said civil application to its original file.
6. On 8.8.2009, the learned District Judge-1, Ambejogai, allowed the application Exh.23/B in Misc. Application No. 19 of 2006, filed by the respondent herein and directed the petitioner herein to handover the custody of the child 'Krishna' to the respondent i.e. original applicant, within three months from the date of the order.
7. Being aggrieved by the order dated 8.8.2009, passed by the ::: Downloaded on - 09/06/2013 18:50:04 ::: wp5265.11 -4- learned District Judge-1, Ambejogai, below Exh. 23/B, this writ petition is filed.
8. It is the contention of the petitioner that the petitioner is economically sound person and he can maintain the child 'Krishna'.
He can very well educate him comfortably. The orders passed by the District court are exparte orders. The petitioner could not get sufficient opportunity to file his written statement to resist the claim of the respondent.
9. Learned counsel appearing for the petitioner submits that the application filed by the respondent was under Section 6 of the Hindu Minority and Guardianship Act 1956. The learned counsel invited my attention to the copy of application, which is placed on record alongwith compilation of writ petition. It is submitted that two reliefs were claimed by the respondent. Firstly, to declare him as guardian and secondly to hand over the custody of the child 'Krishna' to the applicant. Therefore, according to learned counsel, the said application was not maintainable. The application could have been maintainable only under Section 25 of the Guardians and Wards Act 1890. The learned counsel also invited my attention to the grounds taken in the petition and submitted that the child 'Krishna' is with the petitioner for considerable period. He is taking care of child 'Krishna'.
::: Downloaded on - 09/06/2013 18:50:04 :::wp5265.11 -5- The death of daughter of the petitioner and the mother of child 'Krishna' had occurred in suspicious circumstance and therefore, it would be appropriate and in the interest of child 'Krishna' to continue his custody with the petitioner. The learned counsel for the petitioner pressed into service a reported judgment of this Court in the case of Shantabai Sonu Barathe Vs. Gautam Vishnu Shelar, reported in 1994 (2) Mh.L.J. 1879. Relying on the said judgment, counsel appearing for the petitioner would submit that the facts of the case in hand are almost similar to the facts, which were involved in the said case. It is submitted that what is required to be considered is, the paramount interest of the child and his desire and therefore, counsel appearing for the petitioner wold submit that this writ petition deserves to be allowed.
10. On the other hand, learned counsel appearing for the respondent i.e. original applicant has tendered, across the bar, an affidavit in reply. Paragraphs Nos. 1 and 2 of the said reply read thus:-
"1. The deponent states that he is natural father of minor child namely 'Krishna'. The deponent states that petitioner/Bhagwan is grand father of minor child. The deponent states that Bhagwan is incapable to maintain said minor child. The deponent states that said Bhagwan due to his poverty admitted said minor child in Matoshree Ashram school at village Chanai Tq. Ambajogai. The deponent states that he had been ::: Downloaded on - 09/06/2013 18:50:04 ::: wp5265.11 -6- to said Ashram school and he found that no good quality of food is provided to children in the said ashram school. There is no good facility of residence in the said ashram School. The deponent states that Bhagwan is working as labour is different sugar factories in Karnataka State for harvesting sugarcane and he is out of State for more than 7 months in every year. The deponent states that Bhagwan is not having personal interest in the minor child. As Bhagwan is unable to maintain minor child, he admitted said child in Ashram school. Thus, it is clear that 'Krishna' is leading life like orphan. Bhagwan wants custody of minor child as he does not want minor child with the deponent.
2. The deponent states that he is residing in village Mamdapur, Tq. Parli and he is having more than two acres of agricultural land in the said village. The deponent is also having his own house in the said village. The deponent states that there is school in the said village, which is having classes from 1st to 7th std. The deponent states that he is ready to admit minor child in the said school. The minor child can have his own house for residence. The minor son may get good quality of food with his father. The deponent states that he has got personal interest in his own minor child and he will take personal care of said minor child if custody is given to him. The deponent will provide residence, good quality of food, clothes, Education etc. as he is natural guardian of minor child. The deponent states that if custody of minor child is given to him then child will be more happy. The deponent states that minor child need love and affection, which he is not getting due to his admission in Ashram School. Bhagwan has no affinity with the minor child otherwise he would have kept minor child with him. ..."::: Downloaded on - 09/06/2013 18:50:04 :::
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11. The learned counsel for the respondent submitted that though there is mention of Section 6 of the Hindu Minority and Guardianship Act 1956, in the application, which was filed before the District Court, the said section is wrongly quoted. The prayer in the application would make it abundantly clear that, the said application was filed for custody of the child. Learned counsel invited my attention to the contents of the application and submitted that, said contents of the application will make it abundantly clear that, the applicant has stated that, the child is in the custody of the petitioner-grandfather and the applicant lost the custody of the child 'Krishna'. Therefore, according to the learned counsel appearing for the respondent, the said application was under
Section 25 of the Guardians and Wards Act 1890. If the order is passed by the District Court and the application was considered under Section 25 of the said Act, the said order is appealable under Section 47 of the said Act. Therefore, this writ petition is not maintainable.
The learned counsel further submitted that the respondent i.e. original applicant, being father of 'Krishna', is natural guardian in law, the custody of the child 'Krishna' shall go with the original applicant i.e. father of child 'Krishna'. Therefore, relying upon the averments in the affidavit in reply and also averments in the application, which was filed ::: Downloaded on - 09/06/2013 18:50:04 ::: wp5265.11 -8- before the District Court, counsel appearing for the respondent submitted that in the first place this writ petition is not maintainable and the appeal is maintainable and secondly, on merits also, the applicant i.e. respondent herein, being the natural guardian i.e. father of minor child 'Krishna', is entitled for custody of the child 'Krishna'. He therefore, prays for dismissal of the writ petition.
12. I have given thoughtful consideration to the rival submissions advanced by the counsel for the parties. Upon perusal of the contents of the application, which is placed at Exh. B alongwith compilation of the writ petition, it is abundantly clear that the application which was filed by the respondent was under Section 6 of the Hindu Minority and Guardianship Act, 1956. Though the counsel appearing for the respondent was at pains to argue that, the prayer made in the said application is for custody of the child 'Krishna', however, upon careful perusal of the prayer in the application, it is clear that the prayer is not only for the custody, however, the respondent herein sought declaration in the said application that the applicant-respondent should be declared as guardian of the child 'Krishna'. Therefore, there is no manner of doubt that the relief which was claimed by the applicant was for declaring him as guardian and secondly for custody of the child 'Krishna'. Therefore, the first contention of the counsel for the respondent that the writ petition is not maintainable is devoid of any ::: Downloaded on - 09/06/2013 18:50:04 ::: wp5265.11 -9- merits. It is an admitted position that if the application is considered under section 6 of the Minority and Guardianship Act, in that case, no appeal is provided and the only remedy is to file the writ petition.
13. Upon careful perusal of the impugned judgment and order, it is abundantly clear that the averments in the application remained uncontroverted. The petitioner herein did not file his written statement due to certain reasons. In cases of custody of child, endeavour should be made by the Courts to find out the paramount interest of the child.
It is the contention of the petitioner that child 'Krishna' is residing with him since the death of his daughter i.e. wife of the respondent and the mother of the child 'Krishna'. The said position is disputed by the respondent. The case of the respondent before the District Court is that on 15.1.2006 the child 'Krishna' was removed from lawful custody of the respondent Ashok.
14. Pursuant to the notice issued in this petition, the respondent has filed affidavit in reply. This court on 28.6.2012 passed the following order:-
" The petitioner claims that child is still in his custody. The petitioner to keep child present for interview if necessary on next date of hearing.::: Downloaded on - 09/06/2013 18:50:05 :::
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2. Put up on 10th July, 2012."
15. Thereafter, the matter was listed on 10.7.2012. However, for compliance of order dated 28.6.2012 keeping the child present, if necessary for interview, the counsel for the petitioner sought adjournment and accordingly the matter was adjourned to 17.7.2012.
Accordingly, on 17.7.2012, child 'Krishna' was present in the Court hall. With consent of counsel appearing for the parties, considering the age of child 'Krishna', instead of interviewing him in the open Court, he was interviewed/interacted in the chamber. Upon interviewing the child 'Krishna', this court on 17.7.2012 passed the following order:-
"1. This matter was heard on 28.6.2012. By order dated 28.6.2012, the petitioner was asked to keep the child present for interview, if necessary, on the next date of hearing i.e. on 10.7.2012, however, on 10.7.2012, the counsel appearing for the petitioner requested for further time to comply with the order dated 28.6.2012. The hearing of the matter was adjourned for today.
2. Today, when the matter was taken up for hearing in the Court Hall, the counsel appearing for the petitioner, informed this court that the petitioner has brought the child and if necessary, this Court can interview the child. The learned counsel appearing for the petitioner and the respondent consented for interviewing of the child in the chamber. It was ::: Downloaded on - 09/06/2013 18:50:05 ::: wp5265.11 -11- made clear to the advocates appearing for the parties that the child will be interviewed in chamber at 4.30 p.m. Accordingly at about 4.40 - 4.45 p.m. the child was called for interaction in the chamber. When the child was interviewed, he was alone in the chamber.
3. On asking his name, the child told his name as 'Krishna' Pawar. He further told that he goes to Anganwadi to take education. On further questioning, he disclosed that the male teacher is there to teach him poems and tables. He further told that the school starts at about 10.00 a.m. The food is also being provided in the school. On putting a specific question to him that what is the name of his father, he did not reply the said question. However, he told the name of his grand-father as Bhagwan. He further told that from childhood he is staying/residing with his grand-father. The child was specifically asked whether he wants/wish to stay with his father or grand-
father, his reply was that he wants/wish to reside/stay with his grand-father.
4. In the above circumstances, the matter is adjourned to tomorrow i.e. 18.07.2012 for further hearing."
16. Upon interacting with child 'Krishna', this court was convinced that the child 'Krishna' expressed his desire to reside and continue to stay with the grand-father i.e. petitioner herein. Even he did not tell the name of his father when specific question was put to him; (what is name of his father?).
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17. Therefore, in the aforesaid facts of the case, it is necessary to protect the interest of the child. It is true that the respondent, being father, is natural guardian in law, in a normal course, the custody of the child should he with the respondent-father. However, in the facts of this case and in view of the fact that the said child desires/wishes to stay with his grand-father, he is taking education and does not wish to return to the respondent, the paramount interest of the child is required to be looked into.
18. At this stage, it would be appropriate to refer to some of the pronouncements rendered by the Hon'ble Supreme Court, while deciding the similar issue, as is involved in the instant matter. The Supreme Court in the case of Shyamrao Maroti Korwate Vs. Deepak Kisanrao Tekam, reported in (2010) 10 SCC 314, in the facts of that case, has taken a view that the father is guardian of minor child until he is found unfit to be a guardian of minor. But in the matter of custody of a minor child, paramount consideration is welfare of minor and not rights of parents or relatives. Yet in another judgment in the case of Athar Hussain Vs. Syed Siraj Ahmed and others, reported in (2010) 2 SCC 654, the Supreme Court held that welfare of children is sole and single yardstick to assess comparative merit of parties contesting for custody. Stability and consistency in affairs and routines ::: Downloaded on - 09/06/2013 18:50:05 ::: wp5265.11 -13- of children are important considerations for change of custody of minors in interim custody proceedings. Yet in another judgment in the case of Vikram Vir Vohra Vs. Shalini Bhalla, reported in (2010) 4 SCC 409, the Supreme Court held that, welfare of child is of paramount importance in matters relating to child custody and may have primacy even over statutory provisions. Child custody being a very sensitive issue, custody orders are always considered interlocutory orders capable of being modified keeping in mind needs of the child. Such orders even when based on consent can be varied if welfare of child so demands. Yet in another judgment in the case of Mohan Kumar Rayana Vs. Komal Mohan Rayana, reported in (2010) 5 SCC 657, the Supreme Court held that wishes of minor need to be given due weightage which in instant case had been done by impugned judgment by upholding order of Family Court directing custody of child to continue with mother. Yet in another judgment, in the case of Gaurav Nagpal Vs. Sumedha Nagpal, reported in (2009) 1 SCC 42, the supreme court held thus:-
"The principles in relation to the custody of a minor child are well settled. The paramount consideration of the court in determining the question as to who should be given custody of a minor child, is the "welfare of the child" and not rights of the parents under a statute for the time being in force or what the parties say. The court has to give due weightage to the child's ordinary contentment, health, education, intellectual ::: Downloaded on - 09/06/2013 18:50:05 ::: wp5265.11 -14- development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.
Mature thinking is indeed necessary in such a situation. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The court has not only to look at the issue on legalistic basis. In such matters, human angles are also relevant for deciding the issues. The object and purpose of the 1890 Act is not merely physical custody of the minor but due protection of the rights of ward's health, maintenance and education. The power and duty of the court under the Act is the welfare of minor."
18. Therefore, in the facts of this case, it will have to be held that the child 'Krishna' wish to reside/stay with the petitioner Bhagwan.
Already he is in custody of the petitioner Bhagwan, who is grand-
father of the child 'Krishna'.
19. Therefore, for the reasons aforesaid and in view of the fact that the child 'Krishna' has expressed his desire/wish to reside/stay with the petitioner Bhagwan, who is his grand-father, the impugned order directing the petitioner to hand over the custody of the child 'Krishna' to the respondent deserves to be quashed and set aside. Accordingly, the impugned judgment and order is quashed and set aside. Writ petition is partly allowed to the above extent.
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20. Rule is made absolute in the above terms.
21. It is clarified that so far as declaration by the District Court that the respondent being father of the child 'Krishna' is natural guardian, needs no interference.
22. Writ Petition stands disposed of.
ig *****
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