Jharkhand High Court
Parsuram Barik vs Pradip Digar on 4 October, 2023
Author: R Mukhopadhyay
Bench: Rongon Mukhopadhyay, Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 155 of 2017
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Parsuram Barik, Son of late Santosh Barik, Resident of Village-Saldih Basti,
Adityapur, P.O. P.S. Adityapur, District-Seraikella, Kharsawan.
.....Appellant
Versus
Pradip Digar, S/o late Gaur Digar, Resident of Village-Dhobghata, P.O. P.S.
Puruliya, District-Purulia, State-West Bengal.
....Respondent
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Coram: THE HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
THE HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellant : Mr. Jitendra Tripathi, Advocate
For the Respondent : Mr. J.N. Upadhyay, Advocate
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C.A.V. On 26.06.2023 Pronounced on 4/10/2023
Per R Mukhopadhyay, J.
Heard Mr. Jitendra Tripathi, learned counsel appearing for the appellant and Mr. J.N. Upadhyay, learned counsel appearing for the respondent.
2. This appeal is directed against the judgement dated 17.2.2017 and decree dated 3.3.2017(decree signed on 3.3.2017), passed by Shri Bal Mukund Roy, learned Principal Judge, Family Court, Seraikella-Kharsawan in Guardianship Case No. 04 of 2014, whereby and whereuner the guardianship case filed by the appellant under section 25 of the Guardians and Wards Act, 1890 has been dismissed.
3. For the sake of convenience, both the parties are referred to as per their status in the learned court below.
4. The applicant (appellant herein) had instituted a suit under section 25 of the Guardians and Wards Act, 1890 against the respondent (also respondent herein), in which it has been stated that the applicant was married with the daughter of the respondent namely Runu Barik about three years ago. Out of the said wedlock, a son was born namely Rahul Barik. On 8.2.2014, the wife of the applicant died in a train accident, which resulted in institution of a criminal case against the applicant by the respondent being Adityapur P.S. Case No. 50 of 2004 for the offences punishable under sections 498A and 306 of the Indian Penal Code. The applicant was taken into custody and was released on bail on.24.7.2014. It has been stated that on 10.2.2014, the respondent came to the house of the applicant at Saldi Basti, Adityapur and forcibly removed the applicant's minor son from the lap of the mother of the applicant and since then the minor son of the applicant is in the custody of the respondent. After his release from custody, the applicant went to the house of the respondent at Dhobaghata to take back his son but the respondent instead had threatened him and dragged out the applicant from his house. The applicant however somehow 2 First Appeal No. 155 of 2017 managed to see his son from a distance and he was aggrieved to find him in bad health and an unhygienic condition. The applicant had sent a pleader's notice to the respondent demanding custody of his son but the respondent did not reply to the said notice. It has been stated that the applicant is staying with his mother and aunt and they are capable to look after the wellbeing of the son of the applicant. The applicant runs a saloon at Adityapur and his mother works in a private factory at Adityapur and they are financially capable to provide proper education and a better life to the minor son of the applicant. It has been stated that the applicant is the natural guardian of his minor son and in absence of his son he is facing mental agony. The respondent does not have the capability to take proper care of the son of the applicant and he is also not the natural guardian of the ward.
5. The respondent on being noticed had filed a written statement in which it has been stated that the applicant is a drunkard who used to torture his minor son after the death of his wife. It has been stated that the respondent is the natural guardian of the minor son of the applicant and he is taking care of his education and over all wellbeing. It has been stated that the life of the ward will be spoiled if he is given in custody to the applicant.
6. Based on the pleadings of the parties, the following issues have been framed for determination: -
(i) Whether the suit is maintainable in its present form?
(ii) Whether the applicant is the natural guardian of the ward Rahul Barik?
(iii) Whether the said ward Rahul Barik has been forcibly removed from the custody of his natural guardian on 10.2.2014?
(iv) Whether the claim for the custody of minor Rahul Barik by the applicant is necessary for the interest and welfare of the minor?
(v) Whether the applicant has got any cause of action to file the suit?
(vi) Whether the applicant is entitled to get any relief as prayed?
7. The applicant has examined three witnesses in support of his case.
P.W-1-Bistu Tudu has stated that he is acquainted with the family of the applicant from before. He also knows the respondent since he is the father-in-law of the applicant. He has stated about the marriage with Runu Barik and the birth of a child. He has stated that the wife of the applicant died on 8.2.2014 on account of a train accident and on 10.2.2014 the minor son of the applicant was forcibly taken away by the respondent. The relationship between the applicant and the respondent is strained. The applicant is capable to take care of the child as he has a good income from his saloon and his mother also works in a factory at Adityapur. There 3 First Appeal No. 155 of 2017 are other members in the family who can take care of the child as well.
In cross examination he has deposed that the applicant does not consume liquor.
P.W-2-Ratho Barik is the mother of the applicant who has stated about the marriage between her son and Runu Barik, the birth of a son and the death of her daughter in law on 8.2.2014 on account of a train accident. After the death of her daughter in law, a criminal case was instituted by the respondent in which the applicant was taken into custody and he is at present on bail. She has stated that on 10.2.2014 the respondent had forcibly removed the child from her lap and he is now in the custody of the respondent. After release from jail, the applicant had gone to his inlaws place at Dhobaghata to take back the custody of his son but he was not allowed to enter and he was also threatened with dire consequences if he came back again. She was told by the applicant that the ward is not being properly taken care of by the respondent and was living in an unhygienic condition. The respondent is not in a position to take care of her grandson as the respondent and his family members regularly consume liquor.
In cross-examination, she has deposed that the respondent had forcibly taken away the body of his daughter as well as his grandson.
P.W-3-Parsuram Barik is the applicant who has stated that his marriage was solemnized with Runu Barik about five years back. On 8.2.2014, Runu Barik died as a railway wagon had collided with her. The respondent was informed about the death but he instituted a criminal case at Adityapur P.S. He has stated that due to his wedlock with Runu Barik, a son was born. On 10.2.2014, the respondent had come to his house and had forcibly taken away his two year old son from the lap of his mother. On 3.8.2014, he had gone to his inlaws place but he was not allowed to enter and he was assaulted and thrown out from the house. He has stated that he had seen his son in a very unhygienic and impoverished condition. He returned back and sent a pleader's notice for the custody of his son but the respondent did not reply to the said notice. He is financially capable to take care of his son. He has stated that the entire family members of the respondent consume liquor which would jeopardize the future of the ward.
In cross-examination, he has deposed that he had not performed the last rites of his wife.
8. The respondent has examined four witnesses in support of his case.
D.W-1-Ashish Kumar Sutradhar has claimed that he is acquainted 4 First Appeal No. 155 of 2017 with both the sides. He has stated about the applicant demanding dowry from his wife and assaulting him. The applicant and his family members had committed the murder of Runu Barik on 8.2.2014 and had thrown the dead body in the railway track. The applicant is a crooked person who is always in a state of intoxication after consuming liquor.
In cross-examination, he has deposed that he does not know anything about the respondent. He also does not know in which case he is giving evidence. He also does not know as to who is looking after the son of the applicant.
D.W-2-Kamal Dhiwar is acquainted with both the parties. After marriage, the applicant always used to demand dowry from Runu Barik. The applicant after having liquor would always assault his wife and would not give her food. On 8.2.2014, the applicant and his family members murdered Runu Barik and threw her dead body on a railway track. The applicant always remains in an intoxicated state. He has stated that the mother of the applicant works in a factory and there is no one to look after the child.
In cross-examination, he has deposed that he had never gone to the house of the applicant nor he had seen the applicant committing assault upon his wife but he had seen the wife of the applicant shedding tears after the assault. He has stated that the respondent has a betel shop, which is his source of earning.
D.W-3-Balram Digar stays in the neighborhood of the respondent. He has stated about the torture committed upon Runu Barik by the applicant and her murder committed by the applicant and of throwing her body in the Adityapur Railway track. The applicant is always in an intoxicated state. There is no one in the family of the applicant to look after the child as the mother of the applicant works in a factory.
In cross-examination, he has deposed that the respondent is his brother. He has stated that he does not consume liquor. He has further stated that the applicant had never consumed liquor in his presence.
D.W-4-Pradip Digar is the respondent who has stated about the marriage of his daughter Runu Barik on 12.6.2011 with the applicant. His daughter was kept well for two and half years during which she had given birth to a child. After two and half years of marriage, the demand of dowry started and the applicant used to regularly consume liquor and assault his daughter Runu Barik. On 8.2.2014, the applicant and his family members committed the murder of his daughter and threw the body in the railway track. The applicant is a crooked person who is always in an intoxicated 5 First Appeal No. 155 of 2017 state and there is no member in his family to look after the child as the mother of the applicant also works in a factory.
In cross-examination, he has deposed that he is the grandfather of Rahul Barik who stays with him. He has stated that he had spent Rs.40,000/- for the wellbeing of Rahul Barik. He has also got his grandson admitted in a school.
9. It has been submitted by Mr. Jitendra Tripathy, learned counsel appearing for the applicant, that the applicant being the father of the child is the natural guardian and he cannot be debarred from getting his custody. It has been submitted that the mother of the child died in other than normal circumstances and the onus on bringing up the child rests with the applicant who has sufficient means as well but these facts were not considered by the learned court below. Mr. Tripathy has further submitted that there is nothing on record to suggest that any complaint was ever made by the respondent against the applicant prior to the death of his daughter. He has submitted that the respondent is incapable to maintain the child as he does not have sufficient financial means.
10. Mr. J.N. Upadhyay, learned counsel appearing on behalf of the respondent, has submitted that the evidence of the witnesses signify that there is no member in the family of the applicant to look after the child as the applicant who runs a saloon goes out in the morning and comes in the evening while his mother who is also working in a factory remains absent from the house from morning itself. It has been submitted that the respondent has taken proper care of the ward who is better off staying with his grandparents and others who have showered love and affection towards him.
11. We have heard the learned counsel for the respective parties and have also perused the Lower Court Records.
Issue Nos. III and IV are the pivotal issues for consideration and which have been decided against the applicant. The facts which are admitted are the marriage between the applicant and Runu Barik and the birth of a child namely Rahul Barik out of the said wedlock. It is also an admitted fact that the body of Runu Barik was found on the railway track for which a criminal case was instituted by the respondent against the applicant. The minor Runu Barik after the incident which befell Runu Barik is staying with the respondent also is an admitted fact. The applicant wants the custody of his son, for which the suit was preferred. It is to be seen as to whether the declaration of the applicant as the natural guardian would be in the interest and welfare of the child. The evidence adduced on behalf 6 First Appeal No. 155 of 2017 of both the sides reveals allegations and counter allegations made against each other. When we sift through the evidence, we find that financial issues are not much of a constraint as both the sides seems financially capable to take care of the minor. However, such issue cannot be the sole consideration for declaring the guardian of a ward.
12. The upbringing of a minor entails love and affection and which consumes time. The evidence of the witnesses of the applicant primarily reveals that the applicant stays with his mother and both go out in the morning for their work and return in the afternoon and/or in the evening. Although P.W-1 has stated that there are other family members staying with the applicant but none have been examined which makes the evidence of P.W-1 doubtful. The evidence adduced by the respondent further intensifies this point. On the other hand, the respondent, who is the grandfather of the minor, has stated about taking care of the minor son of the applicant by admitting him in a school and also looking after the health of his grandson. The minor is further looked after by his grandmother as well. Another aspect which has rightly been considered by the learned court below is that a criminal case is pending against the applicant. In the backdrop of such fact, the ambience in the house of the applicant would not be conducive for a wholesome development of the minor. The minor is in the custody of the respondent from the time of the death of his mother and the evidence of the witnesses of the respondent clearly reveal that proper care and affection are being extended to him. The learned court below has therefore rightly come to a conclusion that it will not be for the welfare of the ward to return in the custody of the applicant as the guardian.
13. Consequent to the answering of issue nos. (iii) and (iv) against the applicant, issue nos. (i) and (ii) have also been decided against the applicant and rightly so.
14. We, therefore, do not find any reason to interfere with the impugned judgment dated 17.2.2017 and decree dated 3.3.2017( decree signed on 3.3.2017, passed by Shri Balmukund Roy, learned Principal Judge, Family Court, Seraikella, Kharsawan in Guardianship Case No. 4 of 2014 and this appeal accordingly stands dismissed.
(Rongon Mukhopadhyay,J) (Deepak Roshan, J) Rakesh/-