Madhya Pradesh High Court
Dr. Pratibha Urf Sonu vs Dr. Manish Borasi on 19 November, 2025
Author: Vishal Dhagat
Bench: Vishal Dhagat
NEUTRAL CITATION NO. 2025:MPHC-JBP:59288
1 FA-529-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
&
HON'BLE SHRI JUSTICE B. P. SHARMA
ON THE 19th OF NOVEMBER, 2025
FIRST APPEAL No. 529 of 2025
DR. PRATIBHA URF SONU
Versus
DR. MANISH BORASI
Appearance:
Shri Pradeep Kumar Naveria - Advocate for appellant.
Shri Utkarsh Kumar Sonkar - Advocate for the respondent.
ORDER
Per: Justice B. P. Sharma Appellant has filed this appeal under Section 19 of Family Court Act, 1984 read with Section 47 of the Guardians and Wards Act, 1890 against judgment and decree dated 27.09.2024 passed by Ist Additional Principal Judge, Family Court, Bhopal (MP) in MJC-GW-
34/2024 whereby an application under Section 39 of the Guardians and Wards Act, 1890 (hereinafter referred to as the "Act of 1890") filed by the respondent has been allowed.
2. Briefly stated, the case of the appellant before the Trial Court was that her marriage with the respondent was solemnized on Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 12/8/2025 6:45:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:59288 2 FA-529-2025 10.12.2012 and out of the said wedlock a daughter, namely Jainisha, was born on 05.12.2018. Due to marital disputes between the parties, the appellant instituted proceedings for divorce as well as an application for guardianship of the minor child under Section 7 of the Act of 1890. During the pendency of the said proceedings, mediation was conducted in October 2022 before the then Ist Additional Principal Judge, Family Court, Bhopal, wherein the parties arrived at a written settlement. At that time, the child was less than five years old. Accordingly, visitation rights were settled between the parties and, based on their joint application containing mutually agreed terms, a consent decree was passed in Miscellaneous Case No. 29/2020 on 05.11.2022 by the then I st Additional Principal Judge, Family Court, Bhopal.
3. It was alleged that the appellant thereafter violated the terms of the compromise decree, whereupon the respondent filed a petition under Section 39 of the Act of 1890 seeking cancellation of the appellant's guardianship of minor Jainisha and seeking custody of the child. The appellant initially appeared before the Trial Court but subsequently stopped appearing and did not file any reply; therefore, she was proceeded ex-parte. Relying upon the pleadings and evidence adduced by the respondent, the learned Family Court passed the Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 12/8/2025 6:45:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:59288 3 FA-529-2025 impugned judgment and decree dated 27.09.2024, allowing the respondent's application under Section 39 of the Act, 1890 and cancelling the appellant's guardianship, and consequently granting guardianship of the minor to the respondent-Father.
4. Learned counsel for the appellant submitted that the Trial Court failed to appreciate that the respondent did not prove any of the four grounds pleaded in the application under Section 39(d), (e), (g) and
(h) of the Act of 1890. Despite absence of any such proof, the application was erroneously allowed. It is submitted that the respondent, both in the application and in his deposition, levelled unfounded and false allegations against the appellant, which the Trial Court accepted without any justifiable basis.
5. Learned counsel further submitted that the Trial Court ignored the well- settled principle that the burden lies upon the party seeking cancellation of guardianship to establish cogent and convincing grounds for such cancellation. In the present case, the respondent failed to establish any circumstance warranting cancellation of the appellant's guardianship. In the absence of any proven ground, there was no justification for the Trial Court to cancel the appellant's guardianship and confer the same upon the respondent. It is argued that the Trial Court did not consider that the child was born out of the Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 12/8/2025 6:45:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:59288 4 FA-529-2025 wedlock and was in custody of the appellant, and that the welfare of the child is of paramount consideration. On these submissions, it is urged that the impugned judgment dated 27.09.2024 is arbitrary, unjust and contrary to settled legal principles and is therefore liable to be set aside.
6. Per contra, learned counsel for the respondent submitted that earlier the Trial Court had granted a consent decree in favour of the appellant; however, the appellant violated the terms and conditions of the consent decree dated 05.11.2022. The respondent therefore assailed the said decree before the Trial Court. Upon consideration of the material on record and the evidence adduced, the Trial Court found that the appellant had violated provisions of Section 39(d), (e),
(g) and (h) as well as Section 26 of the Act of 1890, and therefore allowed the application under Section 39 of the Act of 1890 and directed the appellant to hand over custody of the child to the respondent.
7. Learned counsel for the respondent submitted that Section 26 of the Act of 1890 requires leave of the Court before removing a ward from the jurisdiction of the Court which appointed or declared a person as guardian. The consent decree dated 05.11.2022 provided that the minor shall remain in custody of the appellant until she Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 12/8/2025 6:45:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:59288 5 FA-529-2025 attains majority or until otherwise decided by the child after completing 12 years of age. Condition (u) of the decree mandates that any change of address by either party shall be intimated to the other within one week. Disregarding these conditions, the appellant changed her place of residence at least five times in the last two and a half years without obtaining leave of the Court or informing the respondent, which is clear from the documents filed by the respondent. It is submitted that these acts clearly show denial of access of the child to her father and paternal family, thereby depriving her of their love and affection. Such frequent changes in residence are allegedly detrimental to the mental and physical well- being of the child.
8. It is further submitted that despite the consent decree granting elaborate visitation rights to the respondent including weekend visitation, visitation on festivals and holidays from 10:00 a.m. to 5:00 p.m., and the right to keep the child for up to five days during holidays, the respondent was almost entirely denied access. In the 2½ years following the consent decree, the respondent could physically meet the child only three times, out of which two times only with assistance of police. Although the decree also permitted unhindered audio/video communication, the appellant, after taking the child outside the jurisdiction of Bhopal, blocked the respondent's number Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 12/8/2025 6:45:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:59288 6 FA-529-2025 and permitted video calls only occasionally and arbitrarily. Out of 625 days, the respondent could video-call the child on only 64 days. No information regarding school functions or parent-teacher meetings was provided to the respondent, although six such meetings were held in the academic year 2023-2024. This conduct, it is argued, shows that the appellant deliberately restricted the respondent's access to the child and attempted to influence the child's impressionable mind against her father and paternal family.
9. Learned counsel for the respondent further submitted that although the appellant is a dentist and medically trained, she failed to ensure timely vaccination of the child, compelling the respondent to move an application before the Trial Court for crucial vaccinations, including DPT, HIV, OPV, IPV and Hepatitis-A2, which were administered only pursuant to Court orders. On one occasion during a video call, the respondent noticed an injury beneath the child's chin and around the neck. When the appellant was asked, she casually stated that there was no need to take the child to a doctor and that she herself had stitched the injury. This conduct shows neglect and ill- treatment and reflects a breach of the appellant's duties as guardian.
10. Learned counsel also drew attention of this Court to the counsellor's report dated 05.05.2025 and submitted that as per the Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 12/8/2025 6:45:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:59288 7 FA-529-2025 report it is clear that the appellant did not want to allow the child to interact with her father freely; that during counselling, the appellant stood outside the glass door and watched the child and later entered the room, creating commotion and requiring reprimand. The counsellor also recorded in the report that when the appellant offered chocolate to the child, the child expressed hesitation saying, "Mamma will not allow me". In view of the above, it is submitted that the Trial Court rightly concluded that the appellant had violated the terms and conditions of the consent decree and the appellant's conduct was detrimental to the welfare of the child and rightly directed that custody of child be handed over to the respondent.
11. Heard learned counsel for the parties and perused the record. It appears from the proceedings that upon coming to know of the case pending before the trial Court, the appellant-non-applicant engaged an advocate through video conferencing, and the counselling proceedings were also conducted through virtual mode. Thereafter, the appellant-non-applicant filed certain applications before the trial Court; however, subsequently she chose not to participate in the proceedings and remained absent, as a result of which she was proceeded ex-parte. It is further evident that she did not file any reply to the main application.
Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 12/8/2025 6:45:51 PMNEUTRAL CITATION NO. 2025:MPHC-JBP:59288 8 FA-529-2025
12. It is undisputed that a consent decree of divorce was passed between the parties, however, it is averred that the appellant-non- applicant has violated the terms and conditions of the decree passed in original case with regard to their daughter. The said conditions have been mentioned in points Nos.(e) to (i) from (k) to (o) and (s) in the order dated 5th of November, 2022 in MJC GW case No.29/2020.
13. AW-1 Manish Borasi, has stated that on 07.11.2022 the non- applicant removed the minor daughter, Jainisha, from Bhopal without informing him. He made efforts to trace her and to establish contact, but without success, compelling him to initiate execution proceedings. He also stated that the non-applicant did not disclose her place of residence to him at any stage, and it was only through YouTube that the applicant came to know that she had opened a clinic at Gurgaon. In her affidavit, the non-applicant has admitted that she is presently residing at Gurgaon. However, there is nothing on record to show that she had obtained prior permission of the Court before taking the minor Jainisha out of Bhopal, nor is there any material to demonstrate that she furnished any written intimation regarding such removal. This conduct is in clear violation of the condition imposed by the trial Court in its order dated 05.11.2022.
14. AW-1 Manish Borasi further stated that on one occasion he Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 12/8/2025 6:45:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:59288 9 FA-529-2025 visited New Delhi and contacted the non-applicant to meet their minor daughter; however, the non-applicant blocked his mobile number, thereby preventing any communication. He also stated that on an earlier occasion the non-applicant informed him that she had admitted their daughter to a school and would keep him appraised of matters relating to the child's education, but no information whatsoever was subsequently furnished to him. The applicant thereafter moved an application before the Court seeking directions to the school of minor Jainisha to provide certain information. In response, the school authorities informed that during the academic year 2022-23, six Parents-Teachers Meetings were convened; however, no such communication was ever conveyed to the applicant by the non-applicant.
15. He has further deposed that the non-applicant has never appraised him of any detail regarding the child's education, growth, or social development. He has stated that the non-applicant has been residing with one Piyush Arora, her former acquaintance, since the year 2022, as husband and wife, giving precedence to that relationship over the welfare of the minor, as a result of which the child is becoming neglected. He has further stated that, during a telephonic conversation with the minor, the child informed him that the non-applicant instructs her to address one "Jimmy" as her father Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 12/8/2025 6:45:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:59288 10 FA-529-2025 and compels her to accept such relationship, which is having an adverse impact on the mental well-being of the child. The applicant has also deposed that the minor disclosed that the non-applicant often withholds food and keeps her without meals, and that the minor expressed unwillingness to reside with the non-applicant. It has further been stated that due to the negligence of the non-applicant, the thumb tendon of the minor Jainisha had been injured; however, instead of obtaining proper medical treatment, the non- applicant merely tied a simple bandage. When the child complained of pain, she was thereafter taken to a specialist for treatment.
16. AW-1 Manish Borasi has also stated that since November 2022, he has been able to converse with the minor only on 64 occasions, which fact stands corroborated by the documents exhibited as Ex.P/245, and the text and chat messages exhibited from Ex.P/9 to Ex.P/230. A certificate under Section 65B of the Evidence Act has also been placed on record in support of the electronic evidence. It has further been stated by AW-1 that whenever he attempted to contact the non-applicant, she would either disconnect his calls or speak for an unduly short duration. He has also deposed that he regularly sent messages to the non- applicant requesting to take the minor child during vacations and festivals, yet no response was ever Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 12/8/2025 6:45:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:59288 11 FA-529-2025 given by her. This material evidence has remained wholly unrebutted.
17. It has been noticed by this Court that as per the conditions embodied in the decree, which was passed with mutual consent in the original proceedings, it was incumbent upon the non-applicant to facilitate regular video calls between the minor child and her father as well as other family members. She was further obligated to hand over the custody of the minor to the applicant during holidays and festivals. However, the non-applicant has failed to comply with these conditions, thereby obstructing and diminishing the natural bond of love and affection between the minor and her father. It further appears that the conduct of the non-applicant indicates an intention to remove the minor from Bhopal so as to prevent the applicant from meeting the child. She has also continuously changed her place of residence without furnishing any prior information either to the applicant or to the Court, in breach of the terms stipulated in the decree and contrary to the welfare of the minor.
18. Perusal of the evidence, it is clear that appellant has changed her residence as much as five times in the last 2½ years which is not only a gross violation of Section 26 of the Guardians and Wards Act, 1890, but also condition(u) of the consent decree dated 05.12.2022 (Exhibit-P/4).
Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 12/8/2025 6:45:51 PMNEUTRAL CITATION NO. 2025:MPHC-JBP:59288 12 FA-529-2025
19. It further appears from the evidence on record that an attempt is being made to influence and misguide the minor child and to withhold from the applicant all information regarding her education. A perusal of the documents furnished by the school reveals that the name of the applicant, being the father, has not been mentioned therein. The non-applicant has also failed to communicate to the applicant any details relating to the child's education, including the conduct of parents-teacher's meetings. The evidence further discloses that the non-applicant is not paying proper attention to the nutrition and health needs of the minor, which are of paramount importance for her well-being. It has also come to the applicant's statement that the non-applicant is residing with one Piyush Arora, who has a daughter of his own. In such circumstances, it cannot be ruled out that the minor may be exposed to step-motherly treatment, which would adversely affect her overall development and welfare. The evidence led by the applicant, which remains unchallenged and unrebutted, indicates that the non-applicant has not been adequately taking care of the minor child, thereby violating the conditions imposed by the Court.
20. It further appears from the record that the non-applicant has been repeatedly demanding the passport of the minor; however, from the documents obtained from the school, it is evident that a Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 12/8/2025 6:45:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:59288 13 FA-529-2025 photocopy of the minor's passport was submitted at the time of her admission. This clearly indicates that the original passport of the minor is already in possession of the non-applicant.
21. The appellant/non-applicant, despite having knowledge of the proceedings before the trial Court, chose not to participate meaningfully therein. Her engagement of counsel through video conferencing and filing of certain interlocutory applications establish that she was fully aware of the proceedings; however, thereafter, she consistently remained absent, did not contest the matter on merits, and failed to file any reply to the main application. In consequence, the evidence adduced by the applicant had remained wholly unchallenged and unrebutted. In these circumstances, it will not be unjust to draw an adverse inference under Section 114, Illustration (g) of the Indian Evidence Act to the limited extent that the appellant/non-applicant has withheld material facts and evidence which, if produced, would not have supported her case. Nevertheless, such adverse inference is applied only as an ancillary aid to appreciate the unrebutted evidence on record, the ultimate determination being governed by the paramount consideration of the welfare of the minor under the Guardians and Wards Act.
22. It is also important to mention here that pursuant to the order of Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 12/8/2025 6:45:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:59288 14 FA-529-2025 this Court dated 26.04.2025, the parties along with the minor child were referred to the Delhi High Court Mediation and Conciliation Centre, where a session was conducted on 02.05.2025. This Court has carefully considered the Counsellor's Report dated 05.05.2025 submitted by the Delhi High Court Mediation and Conciliation Centre. The report reflects that during the session, the minor child initially appeared closely attached to the mother; however, upon being given space and comfort, she interacted freely, demonstrated clarity of understanding, and showed no signs of distress or hesitation in the presence of the father. The Counsellor has specifically recorded that the child did not exhibit fear, aversion, or discomfort when sitting with or speaking before the father, and in fact, engaged normally in conversation and play. The mother's conduct during the session, including repeated interruptions and emotional outbursts, appears to have adversely affected the atmosphere of the interaction and contributed to the child's sudden distress. Importantly, the Counsellor concludes that the child loves both parents equally, does not display any behavioral indicators of fear of the father, and would benefit from the father's continued involvement in her upbringing. The report further notes that the mother's apprehensions stem more from her own insecurities than from any objective concern regarding the welfare of the child. The recommendations emphasize that the Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 12/8/2025 6:45:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:59288 15 FA-529-2025 child's well-being requires a balanced environment with meaningful access to both parents. This Court finds the observations of the Counsellor to be significant, objective and consistent with the overall material on record, and they support the conclusion that the father's presence in the child's life is essential for her holistic welfare.
23. In the case of Gaytri Bajaj v Jiten Bhalla (2012) 12 SCC 471, the Hon'ble Apex Court has observed that it is the welfare and interest of the child and not the rights of the parents which is the determining factor for deciding the question of custody and the question of welfare of the child has to be considered in the context of the facts of each case and decided cases on the issue may not be appropriate to be considered as binding precedents.
24. In the present matter, on consideration of the pleadings of the parties, the oral and documentary evidence discussed herein above, and the Counsellor's Report received from the Delhi High Court Mediation and Conciliation Centre, this Court is of the considered view that the respondent- applicant has successfully established that the non-applicant has violated the terms and conditions of the decree governing custody and visitation, particularly by removing the minor from Bhopal without prior permission of the Court, withholding information regarding her residence, schooling and welfare, and by Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 12/8/2025 6:45:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:59288 16 FA-529-2025 obstructing regular communication between the minor and the applicant. The evidence of AW-1 remains unchallenged and unrebutted and clearly demonstrates that the non-applicant has failed to safeguard the emotional, educational and social development of the child. The material on record further reveals attempts on the part of the non-applicant to alienate the child from the applicant, deprive her of the father's affection, and expose the child to an unstable environment. The Counsellor's Report dated 05.05.2025 unequivocally records that the minor displays no fear, hesitation or aversion towards the applicant, interacts with him with ease, and would benefit from his active participation in her upbringing, whereas the mother's conduct and emotional instability adversely affect the atmosphere around the child. In view of these circumstances and applying the paramount consideration of the welfare of the minor, this Court finds that the applicant-father's involvement is essential for the holistic growth of the child, and that exclusive control exercised by the non-applicant is neither conducive to her welfare nor in accordance with the earlier directions of the trial Court.
25. In view of the foregoing, this Court finds that the applicant has successfully established that the welfare of the minor requires restoration of effective access and involvement of both parents, and that the appellant/non-applicant's default, non-cooperation, and Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 12/8/2025 6:45:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:59288 17 FA-529-2025 unilateral conduct are detrimental to the minor's overall well-being. As the evidence of the applicant stands unrefuted, and the appellant/non- applicant has failed to demonstrate any legally sustainable reason for her conduct, this court has no hesitation in holding that that the non-applicant has violated the conditions imposed in the main divorce application, thus giving rise to termination of guardianship as envisaged under Sec. 39(a), (c), (d),
(h) of the Guardians and Wards Act. The appellant/non-applicant is held to have acted in breach of the custody and visitation conditions, warranting appropriate modification of custody/visitation arrangements in the best interest of the minor as given under Sec.6 and 42 of the Guardian and Wards Act. The appellant has demonstrated a conduct full of negligence, has ill-treated the child and is acting contrary to faithful performance of her duties as guardian. Resultantly, the findings recorded by the trial Court, terminating guardianship of appellant/non-applicant, warrant no interference.
26. The order dated 27.09.2024 passed in M.J.C. G.W. No. 24/2024 by the learned Additional Principal Judge, Family Court, Bhopal, whereby the guardianship of the minor has been withdrawn from the appellant, is hereby affirmed. It is made clear that the appellant shall Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 12/8/2025 6:45:51 PM NEUTRAL CITATION NO. 2025:MPHC-JBP:59288 18 FA-529-2025 be at liberty to approach the trial Court by filing an appropriate application, if she so desires, for the grant or regulation of visitation rights in accordance with the provisions of the Guardians and Wards Act, 1890. Upon such application being filed, the trial Court shall consider and decide the same on its own merits and in the best interest and welfare of the minor.
27. Appeal stands dismissed.
28. Pending applications stand closed.
29. The record of the Trial Court, if available, be sent back along with a copy of the judgment of this Court for compliance.
(VISHAL DHAGAT) (B. P. SHARMA)
JUDGE JUDGE
Ashish@
Signature Not Verified
Signed by: ASHISH KUMAR
JAIN
Signing time: 12/8/2025
6:45:51 PM