Delhi District Court
Smt Geeta Pandey @ Geeta Upadhyay vs State Through Nct Of Delhi on 4 June, 2022
IN THE COURT OF SH.SACHIN JAIN, ADDL. DISTRICT
JUDGE-02, SOUTH-WEST DISTRICT, DWARKA COURTS,
NEW DELHI
GP No.: 2/22
CNR No.: DLSW010005742022
IN THE MATTER OF:
1. Smt Geeta Pandey @ Geeta Upadhyay
W/o Sh Susheel Pandey
D/o Sh Umesh Chandra Upadhyay ... Petitioner No.1
2. Master Divyam Upadhyay @ Yuvaan Pandey
S/o Smt Geeta Upadhhyat @ Geeta Pandey ... Petitioner No.2
Both residing at:-
H.No. 291, B-Block
DDA Flats, Bindapur, Uttam Nagar
New Delhi - 110059
(petitioner No.2 being minor represented
through their mother / natural guardian
i.e. petitioner No.1) ... Petitioners
v.
1. State through NCT of Delhi Respondent No.1
2. Susheel Pandey @ Susheel Sri Ram Pandey
R/o Flat No. 1-A/202, A Wing
Building No. 1, New Rachna Complex
Central Park, New Shivsena Shakha
Nallasopora East, Vasai
Thane, Maharashtra -401209 .. Respondent No.2
Date of filing of petition: 27.01.2022
Date of judgment reserved: 02.06.2022
Date of pronouncement of judgment: 04.06.2022
GP No. 2/22 Page No.1/7
JUDGMENT
1. Ms Geeta Upadhyay @ Geeta Pandey (hereinafter "petitioner No.1 ") is the biological mother of the minor, namely, Master Divyam Upadhyay (hereinafter referred as "subject minor") has preferred a petition under Section 6 (b) of the Hindu Minority and Guardian Act, 1956 to declare petitioner No.1 as natural guardian of minor son. alongwith the relief of declaration under section 34 of the Specific Relief Act to declare that only the name of the petitioner No.1 should be put in front of her son petitioner No.2 as a single parent child.
2. The facts in nutshell are that petitioner No.1, namely, Geeta Pandey is the biological mother of the subject minor and respondent No.2 is the biological father of the subject manner.
3. Briefly stated that it is averred in the petition that the marriage of petitioner No.1 with respondent No.2 was solemnized on 09.12.2014 according to Hindu Rites and customs at Himalaya Sagar Restaurant, Milap Nagar, Uttam Nagar, New Delhi. It is further stated that the respondent No. 2 i.e. husband of petitioner No.1 namely, Sushil Pandey told the petitioner that he was previously married to one named Anuradha who used to reside in Mumbai and he had taken divorce from her in the year 2006.After marriage with the petitioner N.1 the relationship between petitioner No.1 and respondent No.2 were restrained and in the pleadings many allegations and facts regarding the ill treatment by the husband are mentioned which are not reproduced here for sake of gravity.
4. It is further averred in the petition that petitioner No.1 came to know that respondent No.2 is still residing with his previous wife and no divorce is taken by respondent No.2 from his previous wife and therefore respondent No.2 committed fraud and breach of trust with GP No. 2/22 Page No.2/7 the petitioner No.1 and on the compliant filed by the petitioner No.1 the Ld. MM passed an order and directed the SHO to registered an FIR against respondent No.2 and FIR bearing No. 0898 dated 06.12.2017 under Section 420, 493, 494, 495 and 323 IPC was got registered against the respondent No.2. It is further the case of the petitioner that respondent No.2 has not performed a single liability towards the petitioner No.1 as a husband and towards petitioner No.2 as a father.
5. On the basis of above averments the present guardian petition alongwith relief of declaration is filed before this court. It is the submission of the petitioner No.1 that she is well educated, gainfully employed and financially secured and it will be in the interest of the minor if she is appointed as guardian of the minor and she is also desirous of making her son her nominee in all her savings and other insurance policies.
6. It is pertinent to mention herein that during the pendency of proceedings, petitioner No. 1 withdraw her prayer clause (b). Her statement to this effect has been recorded on 02.06.2022.
7. The petitioner has averred that the jurisdiction of the Wards Court is being invoked, as the subject minor reside within the jurisdiction of this Court.
8. Notice of the petition was also published in The Statesman, an English daily, and Veer Arjun a Hindi daily, both dated 23.03.2022. A notice of the petition was also pasted on the notice board of this Court. Notice was also issued to the concerned SDM.
9. Notice of the petitioner was issued to the father of the minor arrayed as respondent No.2 on 15.02.2022 returnable for 21.04.2022. Pursuant to service of notice upon the respondent No.2, respondent GP No. 2/22 Page No.3/7 No.2 did not appeared and proceeded ex parte vide order dated 21.04.202.
10. On issuance of notice of the petition close relative of subject ward, namely, Pankaj Upadhyay and Ganesh Chandra Upadhyay (real brothers of petitioner No.1 appeared before the Court and recorded their no-objection statements in favour of the petitioner.
11. The petitioner stepped in the witness box, as PW1 on 02.06.2022 and tendered evidence by way of an affidavit Ex.PW1/1 along with following documents:
S.No. Particulars of Documents Documents Marked as
1. Marriage photographs Ex PW1/1 (Colly)
2. Appointment Letter of the petitioner No. 1 Ex PW1/2 is now de-
exhibited as Mark 'A'
3. Copy of birth certificate of subject minor Ex PW1/3 is now de-
exhibited as Mark 'B'
4. Aadhar Card of respondent No.2 Ex PW1/4 is now de-
exhibited as Mark 'C'
5. Driving license of respondent No. 2 Ex PW1/5 is now de-
exhibited as Mark 'D'
6. Copy of FIR Ex PW1/6 is now de-
exhibited as Mark 'E'
7. Medical documents of petitioner No.1 Ex PW1/7 (Colly) is now de- exhibited as Mark 'F'
8. Medical documents of petitioner No. 2 X PW1/ 8 (Colly) is now de- exhibited as Mark 'G'
12. Learned counsel for the petitioner advanced submissions on 02.06.2022 and submitted that petitioner is the person,under whose care and custody subject minor presently is.GP No. 2/22 Page No.4/7
13. Ld. counsel for the petitioner further submitted that the since the biological father of the subject minor is not taking care of the subject minor nor paying any single penny towards the upbringing of the subject minor and the close relatives i.e. maternal uncle of th subject minor have already recorded their no-objection to the grant of guardianship of the subject minor in the favour of the petitioner.
Ld.counsel for the petitioner also relied upon the judgment titled as Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228.
14. Section 7 of the Wards Act empowers the District Court to appoint a guardian in respect of the person or property or both of a minor to the satisfaction of the Court, if the same is for the welfare of the minor.
15. Despite notice none appearance of respondent No.2 i.e. the father of the minor itself shows that the father has no interest or emotion to take care of his minor child. In the case title as Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228 , relied upon by the petitioner is a celebrity judgment wherein the Apex Court has held that the word "after" in section 6 (a) of the Hindu Minority and Guardianship Act does not mean that the mother shall be natural guardian only after the death of the father. The word "after" has to be construed by keeping in mind the object of the act and that is the welfare of the minor. Therefore, where a father resigns from performing the duties as a father and leave the minor in destitution or withdraw from the conjugal bliss of married life in such circumstances it would be deemed that the father is absent for the purposes of Section 6 (a) of the HMG Act and Section 19 (b) of the Guardianship and Wards Act. The Apex court has construed the word "after" as GP No. 2/22 Page No.5/7 meaning "in the absence of" - be it temporary or otherwise or total apathy of the father towards the child or even inability of father by reason of aliment or otherwise.
16. This court observes that keeping the age of the subject minor in mind, the Court deem it appropriate to exercise the power vested in the Court, under Section 17(3) of the Wards Act.
17. This Court further observes that the documents on record including the birth certificate- Mark 'B' of subject minor reveal the date of birth of the subject minor - as 04.08.2015, rendering him to be minor, under the provisions of the Indian Majority Act, 1875 who is deemed not to have attained majority.
18. Section 17 of the Wards Act, the Court is essentially required to determine whether the declaration of a particular person, as a guardian of the minor would be for the welfare of such minor. Due regard should be had to the age, sex and relation of the minor, the character and the capacity of the proposed guardian and nearness of the kin to the minor.
19. On the above parameters, this Court observes that the petitioner No.1 is the biological mother of the subject minor and is looking after the day to day needs of the subject minor. This court accordingly, orders that the petitioner be appointed, as the guardian of the subject minor.
20. As far as the relief of declaration to declare that only mother's name should be put in front of the name of her child as a single parent child is concerned , the Hon'ble Supreme Court in ABC v. State GP No. 2/22 Page No.6/7 (NCT) 2015 SC 609, the Hon'ble Supreme Court, by invoking the parents patriae jurisdiction came for the rescue and the security of several hapless children in India who were born out of wedlock and abandoned by their fathers In defending the interests of such a child, the Apex court granted the right of an unmarried mother to be appointed as the sole guardian without informing the' deserter' father
21. In view of the ratio of the judgment cited above, the petitioner No.1 is also declare as a single parent child and it is clarified that only the name of the petitioner be put in front of her son in the documents as and when the necessity arises.
22. Let the guardianship certificate shall be issued to the petitioner, namely, Geeta Upadhyay @ Geeta Pandey for being appointed, as the guardian of the subject minor namely, Divyam Upadhyay @ Yuvaan Pandey, and the aforesaid guardian is charged with the custody of the subject minor and must look to his support, health and education and such other matters as per law to which the subject minor is a subject and warrants accordingly.
23. The petition is disposed of in above terms. File be consigned to record room only after due and necessary compliance.
SACHIN Digitally signed by
SACHIN JAIN
JAIN Date: 2022.06.04
17:00:19 +0530
Pronounced in the open (Sachin Jain)
Court on 4th June, 2022 Addl. District Judge-02
South West District
Dwarka Courts Complex, Delhi
GP No. 2/22 Page No.7/7