Uttarakhand High Court
Smt Akshi Yadav vs Pradeep Yadav on 22 June, 2017
Equivalent citations: AIR 2017 UTTARAKHAND 115, (2017) 3 HINDULR 166, (2017) 3 RECCIVR 702, (2018) 126 ALL LR 368, (2017) 2 MARRILJ 875
Bench: Rajiv Sharma, Sharad Kumar Sharma
Reserved
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal from Order No. 103 of 2017
Smt. Akshi Yadav ................Appellant
Versus
Pradeep Yadav .......... Respondent
Present: Mr. Navneet Kaushik, Advocate for the appellant
Mr. Tapan Singh, Advocate for the respondent.
Coram:- Hon'ble Rajiv Sharma, J.
Hon'ble Sharad Kumar Sharma, J.
Reserved on 05.06.2017 Decided on : 22.06.2017 Per - Hon'ble Sharad Kumar Sharma, J.
The philosophy of the Guardians and Wards Act, 1890 took its birth from the Roman era upto the present day, where a duty has been casted upon the State to take care of class of persons, who are incompetent or incapable to take care of themselves. This imperfection was a consequence of their immaturity, lack of intellect or lack of capacity or exercise of discretion which was on account of their age. Under the Hindu mythology, it was the King, whose responsibility was to protect the estate of infants. The said protection as assigned to the Kings initially by usages is now being taken over by the Courts in the exercise of their sovereign powers. Thus, the basic intention and the paramount factor to be borne in mind is the welfare of the child. No other surrounding circumstances would play any significant role, while considering the application for the grant of guardianship.
2. The appellant in the instant appeal is the wife of the applicant (respondent herein) whose application under Section 10 2 read with Section 25 of Guardians and Wards Act, 1890 has been allowed by the Additional Family Court, Roorkee, District Haridwar whereby the custody of the minor son, namely Manvir has been granted, to the respondent in the appeal, by the impugned judgment dated 04.02.2017.
3. For a better scrutiny of the controversy involved, it centers around, fact, as to whether the findings recorded in the proceedings under Section 125 Cr.P.C. for granting maintenance to the wife, children or parents, could be taken into consideration to lay down the foundation for considering the application under Section 10 read with Section 25 of Guardian and Wards Act, 1890, is the core issue to answered?
4. The legislature in Chapter IX of the Code of Criminal Procedure, 1973 while providing the provision of Section 125 Cr.P.C. was a legislation whereby a person having sufficient means neglects or refuses to maintain the class of family members given under sub clauses a, b, c & d of Section 125 Cr.P.C. The aforesaid section 125 Cr.P.C. only grants liberty to Magistrate, 1st Class on being satisfied and establishment of neglect by any of the class of relation mentioned in the sub clause of Section 125 Cr.P.C., the Court may allow the monthly allowance for maintenance of wife or child, father or mother.
5. Under law, Section 125 Cr.P.C. happens to be an independent provision and that too is contemplated under a Code of Criminal Procedure, which lays down the modality and procedure to be followed while dealing with the criminal proceedings. The issue which will gradually crop up in the instant appeal is that when the Courts are exercising its powers provided under Section 125 Cr.P.C. whether finding could be borrowed for the purposes of invoking Section 10 read with Section 25 of Guardians and Wards Act, 1890, 3 which has got altogether a different purpose for attaining social objective and security to infants and unsecured persons.
6. The paramount consideration for the granting of guardianship is the interest of the child whose wellbeing is required to be protected by the Court. It is the duty on the Court. In the said Act under Section 10 which is procedural in nature, laying down the manner in which application would be preferred and dealt with by the person claiming the guardianship of a minor and to the manner in which the proceedings before the Court would be governed and the provisions of the Code of Civil Procedure, 1882 has been made applicable.
7. The principal section with which the controversy herein is related to Section 25 of the Act which deals with the title of the guardian to have custody of ward. Section 25 of the Guardians and Wards Act, 1890 reads as under:-
"25. Title of guardian to custody of ward.- (1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.
(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by Section 100 of the Code of Criminal Procedure, 1882, (10 of 1882) (3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship."
8. Since the purposes of Cr.P.C. viz-a-viz the object of the guardianship and wards being divergent to one-another, the proceedings in both the cases ought to be held independently without being influenced by any of the observations made in an adjudication which has taken place, prior in time. It goes without saying that the proceedings under Section 10 read with Section 25 of the Guardians and Wards Act, 1890, being the civil in nature, under a special social welfare statute, will have an overriding effect over the general 4 proceedings or the findings recorded under Section 125 Cr.P.C. which is criminal in nature.
9. In the case at hand, the marriage of the appellant and the respondent was solemnized on 05.02.2007 at Arya Samaj Mandir in accordance with rituals, prevalent amongst Arya Samaji. Out of the wedlock, a male child 'Manvir' was born, who is a minor and for claiming for custody under Section 25 of the Guardians and Wards Act, 1890, the respondent (husband) has filed the proceeding which was registered as Misc. Case No. 08 of 2015 before the Additional Family Judge, Roorkee, District Haridwar.
10. In the case at hand, the proceedings under Section 10 read with Section 25 of the Guardians and Wards Act purports to be in the shape of a civil proceedings, whereas, on the other hand, proceedings for maintenance under Section 125 Cr.P.C. is contemplated under a Code of Criminal Procedure. The impugned judgment passed by the Family Court on 04.04.2017, whereby the custody of the minor child, Manvir, has been given to Pradeep Yadav (Husband) on the premise that in the findings recorded under Section 125 Cr.P.C., the respondent wife has taken a plea that she is suffering from depression and has got no source of earning. Thus, the Court has traveled to the fact that the aforesaid finding about having no source of income as recorded in Section 125 Cr.P.C. has been borrowed for the purposes of deciding section 25, on the ground that once the wife (mother) has no source of earning, she will not be an appropriate spouse, who could be able to maintain a minor child and hence has drawn a conclusion that looking to the expenses to be met towards school fee, dress, traveling, etc., wife would not be financially capable to take care of her child and hence she has been rendered as non-suited.
511. This observation made, apart from the fact that the observation and the stand taken by the respective parties for establishing the case was within the ambit of Section 125 Cr.P.C. The learned Family Court ought not to have derived the aforesaid fact and findings of Section 125 Cr.P.C. order while considering the parameters of the welfare of the child that even otherwise under the law, the best savior of the child would be mother herself.
12. Apart from the derogation of the aforesaid grounds under Section 125 Cr.P.C. proceedings coupled with the income capacity, no other reason has been assigned by the Court for granting custody of minor son Manvir to respondent by exercising powers under Section 10 read with Section 25 of Guardians and Wards Act, 1890. The learned trial court, while interpreting the statement recorded by Pradeep Yadav as PW-1 has submitted his version that since he has got a Photostate shop, the business which he has said to have been inherited from his father, but contends that the same was closed in the year 2003, in itself cannot constitute to come to a conclusion that the income of the respondent was more viz-a-viz the income of the mother. Apart from it, income of either of the party in matrimony is irrelevant for considering the propriety of guardianship, as even poorest of poor have right to procure child and shower his or her love and affection.
13. The Division Bench of Calcutta High Court in the matter of The Gaya Muzaffurpur Roadways Co. and others vs. Fort Gloster Industries Ltd. And another reported in AIR 1971 Calcutta 494 (V 58 C 112) in its para 19 and 21, while taking into consideration, the impact of Section 125 of the Indian Evidence Act has held that the deposition of the findings recorded by the Criminal Court cannot be used as a substantive evidence i.e. as an admission 6 in a Civil Court. Para 19 and 21 is reproduced herein below for convenience:-
"19. Mr. Banerjee next contended that in any event, the liability of the carrier was limited by the consignment notes which constituted the basis of the agreement for transport. Before we proceed to examine the contention, it is necessary to consider whether the consignment notes for the suit goods were at all issued to or accepted by the company. We have seen that the entire goods of the company were carried by fourteen lorries, and for each consignment in one lorry, one set of such notes was issued. Out of the same twelve consignment notes containing endorsement of due receipt by the consignee have been exhibited in this case, being exhibits A to A-11 and conditions of carriage are printed overleaf. As to the suit goods carried by the two lorries, no consignment note was produced. It is an admitted position that the relevant consignment notes were not signed by the company. The learned Judge came to the finding that no consignment notes were issued to the company, firstly because they were not filed in this suit, though stated to have been filed in the criminal proceedings. D. W. 1 stated that the consignment notes were prepared in five copies, three were sent with the driver of the lorry concerned, one was retained in their office and one was sent to the company. The P. W. 2 who had no personal knowledge stated in her evidence that there was a note in her office to the effect that no consignment note was issued to the company but the office note was not produced and this was rightly commented by Mr. Banerjee. The learned Judge also relied on the deposition of D. W. 1 in the criminal court (Ext. 9) where he stated that the original consignment note with three copies, meaning four copies were handed to the driver. Mr. Banerjee took serious objection as to the admissibility of such deposition in criminal court. His contention is that there was no compliance of the requirement under Section 145 of the Evidence Act in that the witness was not confronted with any particular statement which again could only be admitted to shake the credibility of the witness and could not be used by way of substantive evidence as an admission. Mr. Banerjee relied on the decision in Bal Gangadhar Tilak v. Shrinivas Pandit, 19 Cal 729 (742) = (AIR 1915 PC 7 (11) ) in which it was held that in absence of proof of circumstances specified in Section 33 of the Evidence Act, the introduction and use in bulk in a civil suit of depositions of witnesses recorded in a criminal trial for contradicting or discounting the witnesses of the suit without placing the particular matter or point for explanation in view of the discrepancy, "were illegitimate". Reliance was also placed on the decision in Bhagawan Singh v. State of Punjab, AIR 1952 SC 214 (218) and it was observed in that case that the witness should be afforded a reasonable opportunity of explaining contradictions after his attention is drawn to them in a fair and reasonable manner.
20. In our opinion, the above cases cited by Mr. Mitra are not apposite to the facts of the present case. Here the certified copy of the deposition in the criminal court, it appears, was filed after the 7 evidence was closed and argument concluded and judgment was reserved. Though the order sheet records that the D. W. 1 was confronted with the same, it is not clear that this document was proved in accordance with law as the original records do not appear to have been produced or that the witness was recalled and put on oath before confrontation which was made on the same day the document was filed and there is no record of the witness's reaction on confrontation. The procedure adopted was highly irregular and the learned Judge in the circumstances committed an error in admitting the certified copy of the deposition as substantive evidence and relying on it in holding that no consignment notes were issued to the company. This objection of Mr. Banerjee that Ext. 9 was in the circumstances inadmissible must therefore be upheld."
14. This Court feels that for grooming of a child, apart from money, much more is required i.e. emotional and caring strength of mother to a minor child for a better grooming which could only be granted by mother, with whom, the child was initially residing.
15. For the purposes of better appreciation of the entitlement of the applicant to the Miscellaneous Case No. 8 of 2015 under Section 10 read with Section 25 of the Guardians and Wards Act, 1890, scrutiny of Section 25 is necessarily required to be made. Section 25 is confined to ensuring the wellbeing of the minor and the custody of the guardian to whom it is to be vested. The learned court below in its finding recorded while allowing miscellaneous application No. 8 of 2015 has traveled beyond the pith and substance of the Section 25. The factors which have been taken into consideration, for example;
(i) The issue of borrowing of money by the brothers and family of the appellant from the respondent.
(ii) Failure of the appellant to prove the incidence of breaking of window panes of the car of the brother of the appellant.
(iii) Failure to prove any atrocities having been exercised by the respondent in a drunken stage.
(iv) Failure to prove the investment of Rs. 16.00 lakh incurred in the marriage by the appellant's family.
(v) Failure to prove as to how the appellant and her family had invested in the education of the minor child, taking a contrary view that the statement of the respondent that he got the education of the appellant conducted at his house 8 despite the fact that the same was not proved, has been erroneously accepted by the Court.
16. Learned court below, based on hypothesis had wrongly come to a conclusion that the members of the family of the respondent have no love and affection to the minor Manvir, which is absolutely an unthinkable proposition and not established by any independent instance of atrocity.
17. All the fact, apart from what has been stated above, which constituted to be the basis for granting custody of the Manvir to the respondent by the impugned dated 04.02.2017 apart from being perverse it happens to be without any plausible finding and on a sound reasoning and without taking into consideration about the wellbeing of the child, with whom it would be safeguarded and protected better. Apart from it, this Court feels that the factors, predominantly considered by the Court are not the factors which fall within the ambit of Section 10 read with Section 25 of the Guardians and Wards Act, 1890. As such, this Court feels that the order dated 04.02.2017 deserves to be quashed and the custody of minor Manvir to be handed over to the appellant, the mother and natural guardian, and further a direction is issued to the respondent-father to pay a sum of Rs. 4000/- by 10th of each month, to be invested for the maintenance and education for minor Manvir to upkeep of the child.
18. Thus, the appeal stands allowed for the aforesaid reasons. The impugned judgment dated 04.02.2017 is hereby quashed/set aside.
19. No order as to costs.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.)
22.06.2017
Mahinder