Jayantibhai Ishwarbhai Rohit & 2 vs Chandrikaben Ramanbhai Rohit on 5 May, 2014

[Cites 18, Cited by 0]

Gujarat High Court

Jayantibhai Ishwarbhai Rohit & 2 vs Chandrikaben Ramanbhai Rohit on 5 May, 2014

Bench: Harsha Devani

        C/FA/1937/2004                                   JUDGMENT




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         FIRST APPEAL NO. 1937 of 2004

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          JAYANTIBHAI ISHWARBHAI ROHIT & 2....Appellant(s)
                             Versus
           CHANDRIKABEN RAMANBHAI ROHIT....Defendant(s)
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Appearance:
MR MP SHAH, ADVOCATE for the Appellant(s) No. 1 - 3
MS. KRUTI M SHAH, ADVOCATE for the Appellant(s) No. 1
MR CB DASTOOR, ADVOCATE for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 1
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        CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI

                                Date : 05/05/2014


                               ORAL JUDGMENT

1. By this appeal under section 94 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"), the appellants have called in question the judgement and decree dated 10th August, 2004 passed by the learned Joint District Judge, Fast Track Court No.4, Bharuch in Guardian Application No.9 of 2002. The appellant No.1 is the original opponent in the guardian application and the respondent herein is the original applicant. For the sake of convenience the appellant No.1 is hereinafter referred to as the opponent and the respondent is referred to as the applicant. The appellant No.2 has been joined as a party in the present appeal.

2. The facts giving rise to the present appeal are that the Page 1 of 48 C/FA/1937/2004 JUDGMENT respondent herein (original applicant) made an application for custody of minor child Payal under the Guardian and Wards Act, 1890 (hereinafter referred to as "the Act"), presumably under section 25 thereof. It was the case of the applicant that she was residing at Bharuch. That her marriage with Ramanbhai Ishwarbhai Rohit, the brother of the opponent (appellant No.1 herein) was solemnized in the year 1994 and out of the said wedlock, a daughter named Payal was born on 13th August, 1996 at her parental home at Jambusar. Thereafter, the applicant was residing at her matrimonial home in a joint family at Panvad. In the meanwhile, on 13.10.1997, her husband expired in a vehicular accident after which, she started residing at her parental home with her son along with her parents and brothers. However, on 09.07.2002 (sic 09.07.2000), the opponent took away her minor daughter Payal from Bharuch against her wishes. It was the case of the applicant that she is the mother of the minor, whose father has expired and that the opponent has no right to retain the custody of the minor despite which, he has illegally retained her custody and hence, she had filed an application in the Court of the learned Chief Judicial Magistrate First Class, at Bharuch for a search warrant, however, the said application came to be rejected. The applicant claimed that she had passed various examinations and was a graduate. Her father was a retired teacher. She has two brothers out of whom, one has studied up till M.A. and was doing his LL.B. and her other brother had done his B.E., her mother was Final pass and her elder sister was a graduate. On the other hand, the opponent was 10th Standard pass. According to the applicant, her entire family was educated and was connected with the educational field and the future of her entire family was bright, whereas the Page 2 of 48 C/FA/1937/2004 JUDGMENT opponents were addicted to drinking liquor and tadi. That her minor daughter Payal cannot live without her and the opponent has wrongfully retained the custody of her minor daughter. It was the further case of the applicant that time and again, she had gone to fetch her daughter, however, the opponent used to close the doors and did not permit her to meet her daughter. If she goes to meet her daughter at the school, they take her away and do not permit her to meet her. That her daughter was made to wear dirty clothes and keeps on crying which has an adverse effect on her life. That the opponent has retained the custody of her daughter with the mala fide view to take away the claim amount that may be received by her daughter. That her daughter has abrasions on her body and is not going to school regularly and keeps on crying and that the opponent is threatening the minor who is scared and they are not permitting the minor to come to her. That there are good facilities of education at Bharuch and all kind of education is available. There are English medium schools etc. and her entire family is educated and is connected with education. That with the kind of upbringing that the minor would get at her place as well as the affection of her mother and good education, in future Payal would get a good job and a suitable groom. Therefore, in the interest of the minor, it is necessary that her custody remains with her (the applicant). On the other hand, her father-in-law, mother-in-law and brother-in-law do not have any right to retain the custody of the minor. That the opponent has two sons and a daughter and has taken away her only child from her, which has affected her health. That her father has a three room with kitchen house at Bharuch, whereas the opponent does not have sufficient facilities and is not in a position to give the minor a good upbringing. That two days Page 3 of 48 C/FA/1937/2004 JUDGMENT prior to the filing of the application, she had gone to meet her daughter, however, the opponent did not permit her to meet her daughter and therefore, she had filed the application.

3. It appears that initially, the opponent had not appeared in response to the summons issued by the trial court and hence, an ex parte judgement and decree came to be passed by the trial court on 7th August, 2002. Against the said judgement and decree, the appellant No.1 - Jayantibhai Ishwarbhai Rohit went in appeal before this court in First Appeal No.2432 of 2003. The said appeal came to be partly allowed by a judgement and order dated 21st January, 2004, whereby the matter was remanded to the trial court to decide the same afresh.

4. Pursuant thereto, the opponent filed his written statement dated 23rd April, 2004, wherein the main contention raised was on the ground of lack of jurisdiction on the part of the concerned court to entertain the application. On merits, it was stated that there was no dispute with regard to the applicant being the wife of his brother Ramanbhai Ishwarbhai Rohit and that a daughter named Payal was born on 13 th August, 1996. However, he has disputed the fact that he has forcibly taken away the custody of the minor child. In paragraph - 5 of the written statement, it is stated that the say of the applicant that on 09.07.2000, he and his wife Nandaben and her sister Kashiben had forcibly taken away the custody of Payal, daughter of the applicant, is false and fabricated. In fact, on 03.04.2001, the applicant had filed an application under section 97 of the Code of Criminal Procedure before the learned Chief Judicial Magistrate, Bharuch for issuance of search warrant under section 97 thereof and the learned Chief Page 4 of 48 C/FA/1937/2004 JUDGMENT Judicial Magistrate had directed the minor to remain present before the court and upon ascertaining her wishes, she had stated that she wanted to reside with her grandfather at Chota Udepur. The court had, accordingly, rejected Criminal Miscellaneous Application No.173 of 2001 and hence, their custody of the minor is legal. That, against the order passed by the learned Chief Judicial Magistrate, Bharuch, the applicant had preferred a revision being Criminal Revision Application No.140 of 2001; however, the same came to be rejected on 30.01.2003. It is further stated that minor Payal is happy in the joint family of the opponent and that her mental development is also very good and they are also in a position to provide quality education and the future of the child is secure in their hands. This, in sum and substance, is the stand of the opponent in the written statement.

5. The trial court had framed the following issues on 04.05.2004 :

"[1] Whether the applicant is entitled for the custody of the minor as alleged?

[2] Whether this Court has jurisdiction to try this application?

[3] What order?"

6. Before the trial court, the applicant-Chandrikaben Ramanbhai Rohit had examined herself at Exhibit-49. She has deposed that her marriage with Ramanbhai Ishwarbhai Rohit was solemnized in accordance with Hindu rites and rituals in Page 5 of 48 C/FA/1937/2004 JUDGMENT the year 1994. After her marriage, she was residing with her husband at village Panvad. That her parents' native place was Jambusar and they were residing there since the last 20 years. After her marriage, out of the wedlock, a daughter Payal was born on 13.08.1996. After her delivery, she started residing with her husband in a joint family and that the opponent was her brother-in-law. As noticed earlier in the proceedings before the trial court, the appellant No.1 was the only opponent and that the appellant No.2 came to be joined as a party only in the present appeal. The applicant has further deposed that her husband expired in an accident on 13.10.1997, hence, she and her daughter went to reside with her father at Jambusar and that presently, she was residing at Bharuch. That her brother- in-law Jayantibhai took away Payal from Bharuch on 09.07.2002 (sic. 09.07.2000). On that day, her brother-in-law, sister-in-law and sister-in-law's sister had come to meet her at Bharuch. When they were leaving, she along with her daughter Payal went to see them off, at that time, her brother-in-law took Payal away from her against her wishes. At that time, Payal was four years old. She had, therefore, filed an application for search warrant in the Court of the learned Chief Judicial Magistrate, at Bharuch, which application was rejected and the revision also came to be rejected. She has further deposed that she is a graduate and has done a first year of LL.B. and is residing with her father. She has two brothers. One brother is studying in the last year of LL.B. and the other brother has obtained a degree of B.A. That her elder sister is a graduate and that all the members of her family are graduates. That her brother-in-law Jayantibhai is 10th standard pass and has done a course of B.R.S. That at Panvad village, there is a school up to Standard I to VII only and it is a tribal area, Page 6 of 48 C/FA/1937/2004 JUDGMENT whereas there are very good educational institutes at Bharuch up till college level. That her brother-in-law is habituated to drinking liquor and Tadi and her mother-in-law and father-in-law are also addicted to liquor. That the members of her parental family do not have any bad habits and hence, she is in a position to give her daughter Payal a good education and upbringing. If her daughter Payal remains in the custody of the opponent, her future is dark and she is likely to be on the streets. That her brother-in-law does not let her meet her daughter and when she goes to meet her, he does not let her meet her. That, her brother-in-law is harassing the minor and beating her and is not taking good care of her. That, in connection with the death of her husband in a vehicular accident, her brother-in-law had made an application for compensation, wherein she and her daughter are also joined as parties and that, he wants to take away the compensation that her daughter is likely to get. Her brother-in-law is married and has a daughter and two sons, and that her daughter does not get proper affection. That her brother-in-law has taken away her daughter forcibly which has affected her physical condition and she remains ill. That the area in which she is residing with her father is a good and developed area. That she is residing in Panchvati Society at Link Road with her father. That after her husband's death, she is continuously residing at Bharuch and at the time when her brother-in-law took away her daughter Payal, her daughter was studying at Unnati Vidhyalaya Shishu-

1. That keeping in view her daughter's future, she has made the present application for getting her custody from her brother-in-law. That if the opponent says that he has not forcibly taken away Payal, such fact is false. That if her brother- in-law says that they are giving Payal good education and are Page 7 of 48 C/FA/1937/2004 JUDGMENT taking good care of her, such fact is false. She has stated that she has got mark sheets and certificates of the education which she has taken, which she has produced on record. She has also produced the fee receipts of Unnati Vidhyalaya Shishu-1 where her daughter Payal had been admitted. She has further deposed that except for Payal, she does not have any other children.

7. In her cross-examination, she has denied the suggestion that she had not gone to meet her daughter Payal at Panvad. She has stated that her daughter was studying in the 3 rd or 4th standard. She has admitted that she had filed a guardian application against her daughter's uncle and that she had not joined her in-laws, namely, Payal's grandparents as parties. She has admitted that at the time when she had made application for search warrant, Payal had remained present and that against the order passed by the District Court, rejecting her application, she had not approached the High Court. In her cross-examination, she has stated that her daughter Payal is studying in the 4th standard in the school at Panvad. She has admitted that when her daughter was studying at Chhota Udepur, she had gone to inquire about her daughter at the school at Chhota Udepur. That her daughter is studying at Panvad since two years. That during the pendency of the case, she wanted to go to Panvad, however, her brother-in-law did not let her go there. She has admitted that her daughter's results in the school where she is studying are good. She has denied the suggestion that the opponents were taking good care of her daughter Payal. She has admitted that when her daughter Payal was studying at Panvad, she had made the guardianship application. She has admitted that Panvad was Page 8 of 48 C/FA/1937/2004 JUDGMENT situated in Vadodara district and that she had not filed any application for the custody at Vadodara. She has admitted that her brother had given the last year's examination of LL.B. and that he was engaged in the business of buying and selling houses and that he was presently practicing as an advocate. She has admitted that her brother Raju is married and has two children. She has denied the suggestion that her younger brother Prakash is studying. She has admitted that she does not have a Government job and she does not have any means of income from Government service. She has denied the suggestion that she is not in a position to maintain herself. She has admitted that she earns enough to maintain herself. She has denied the suggestion that it is only her brother-in-law, her father-in-law and mother-in-law, who can take good care of her daughter. She has denied the suggestion that in order to get custody of her daughter Payal, she had made a false allegation that her father-in-law and brother-in-law are habituated to drinking liquor. She has denied the suggestion that it was not in the interest of the minor to appoint her as a guardian.

8. The applicant has produced on record copy of a certificate of the Technical Examination Board, Gujarat State, evidencing that she has passed a course in Garment Making (Exhibit-51); a copy of certificate of the Technical Examination Board, Gujarat State showing that she has completed Certificate Course of Garment Making (Exhibit-52); a copy of certificate showing that she has successfully completed the Course for Domestic Helpers conducted by the Jan Shikshan Sansthan (Exhibit-53); copy of a mark sheet of Third Year B.A. (Exhibit-54); copy of the receipt issued by Unnati Vidyalaya, Bharuch towards fees of Patel Payalben Ramanlal (Exhibit-55) Page 9 of 48 C/FA/1937/2004 JUDGMENT and a copy of a certificate issued by the Jambusar Municipality showing that she has completed five months' training in sewing (Exhibit-56).

9. The applicant's father - Ishwarbhai Ranchhodbhai Jadav has been examined at Exhibit-57. In his deposition, he has stated that the applicant was his daughter and that his native place was Sigam in Jambusar Taluka. That he was residing with his family at Bharuch since the year 2000. Prior thereto, he was residing at Jambusar. That his daughter Chandrikaben, after her marriage, was residing with her husband, and time and again, she used to visit them. That Chandrikaben had given birth to a daughter Payal at the time of her first delivery at Dr. Rathod's hospital at Jambusar. That his son-in-law Ramanbhai had expired in an accident and that thereafter, after one and half month, he had brought his daughter and granddaughter Payal to his house and since then, Chandrikaben was residing with him. That initially, Chandrikaben was not working. However, after coming to Bharuch, she has started sewing work. That his daughter Chandrikaben was residing with him after the death of her husband. That his family is educated. That his daughter's brother-in-law Jayantibhai, viz., the opponent had come to Bharuch and forcibly taken Payal away. That he is keeping his daughter Chandrikaben well and also desires to maintain Payal in a good and proper manner and to provide her good education and he wants to bear the total expenditure thereof. He has two sons who are living with him and both are earning.

10. In his cross-examination, he has admitted that from the time Payal was four years old till she was five years old, her Page 10 of 48 C/FA/1937/2004 JUDGMENT custody was with Jayantibhai. He has also admitted that from the time she was one year of age till she was four years old, Payal was residing with them. He has admitted that since the last three years, the defendant was maintaining Payal and that during these three years, he has not made any financial arrangement for maintenance of Payal or for her education. He has denied the suggestion that after his retirement, his family does not have a steady source of income. He has further deposed that in case Payal remains in the custody of the opponent, he would misappropriate the compensation amount that may be received in the claim petition filed in respect of her father's death. He too has denied the suggestion that the defendant can take better care of Payal and provide her with better education.

11. Jayantibhai Ishwarbhai Rohit, the appellant No.1 (original opponent) has been examined at Exhibit-59. He has deposed to the effect that the applicant is his deceased brother Ramanbhai's wife. His brother died in a vehicular accident on 13.10.1997. Out of his brother and the applicant's wedlock, they have a daughter Payal who was born on 13.08.1996. After the death of his brother, after the thirteenth day rites were over, Chandrikaben's relatives came and took her away and Payal also went along with them. When Payal was one and half years old, her custody was handed over to them. The reason behind handing over her custody was that talks of Chandrikaben's marriage were going on and in the second marriage, the question of the child would arise and hence, Payal's custody was handed over to them. In the meanwhile, they had admitted Payal to a nursery school and during that period, Chandrikaben never asked for her custody. That after Page 11 of 48 C/FA/1937/2004 JUDGMENT 03.04.2001, Chandrikaben made an application for guardianship. He has further deposed that they are taking good care of Payal and are providing her good education. Their financial condition is better than Chandrikaben's family and Payal is getting love and affection of her grandparents. In case she is sent to live with Chandrikaben's family, then her position would be very bad as they do not have any steady source of income, and in case Chandrikaben gets remarried, then the question of the child would arise. That Payal is very happy and her mental development is good and therefore, Chandrikaben should not get her custody. In his cross-examination at the instance of the learned advocate for the respondent, he has admitted that it is true that after his brother Ramanbhai expired on 13.10.1997, Chandrikaben and Payal had stayed at their place only for thirteen days and had thereafter, gone to her father's place at Bharuch. That it is true that from 13.10.1997 till 09.07.2000, Payal was residing at Bharuch. He has admitted that on 09.07.2000, he and his family members went to Chandrikaben's house. He has stated that he is not aware as to whether Payal was studying at Unnati Vidhyalaya Shishu-1, Bharuch. He has denied that after sitting in the rickshaw on 09.07.2000, they had snatched Payal and taken her away. He has admitted that based on such allegation against them, Chandrikaben made an application for issuance of a search warrant for her daughter Payal. He has admitted that the proceedings of search warrant and the revision thereof continued till 2002. He has admitted that after Payal was 5 years of age, she was admitted in the 1 st standard. He has denied the suggestion that his say that Payal was admitted in the nursery school, is false. He has further stated that his family consists of him, his wife, his children and his parents Page 12 of 48 C/FA/1937/2004 JUDGMENT and that he has three children. That except for the deceased, he has no other brother. He has two sisters whose children are studying in college. That his sister's children time and again come to his house and meet his parents. He has admitted that his father is doing agricultural work and is aged 68 years. He has denied the suggestion that the population of Panvad village is mainly tribal. He has stated that Panvad has a village panchayat and there is facility for education up till the 12 th Standard. He has admitted that there is no technical school or college at Panvad. He has admitted that for college education, one has to go to Chhota Udepur from Panvad. He has denied the suggestion that Chhota Udepur is at a distance of 60 kilometres away from Panvad. He has admitted that there are several educational institutes for their caste in different areas and that they get more benefits than the other higher castes. He stated that he has passed 10th standard and thereafter, done a two year diploma course and that his father only knows to put his signature. He has admitted that his mother is totally illiterate. He has admitted that he is not a Government teacher. He has stated that his service timings are from 10.00 a.m. to 06.00 p.m. and that he is serving at Chhota Udepur and is residing there. He further stated that he is residing at Chhota Udepur and Panvad both. He has deposed that he has got documentary evidence in support of his say that he is residing at Chhota Udepur. That he has a house in his name and that his name is mentioned in the voters' list and ration card. He has admitted that Payal's name is not registered in his ration card of Chhota Udepur. He has admitted that after 2000, there was no occasion for them to visit Chandrikaben's house. He has admitted that he does not know what work Chandrikaben is doing. He has admitted that there is nothing in writing Page 13 of 48 C/FA/1937/2004 JUDGMENT regarding Chandrikaben having handed over the custody of the child to them. He has admitted that the manner in which a person conducts himself would differ when one studies in an educational institute at Bharuch rather than at Panvad. He has admitted that till the time his deposition came to be recorded, they had not sent Payal to reside with her mother Chandrikaben even for two to four days. He has denied the suggestion that they are keeping Payal for the purpose of taking the benefit of compensation that she may get. He has denied the suggestion that Payal's interest lies in staying with her mother and her mother's parents. He has denied the suggestion that by residing at his place, Payal is not likely to develop economically, socially and educationally. He has denied the suggestion that he had illegally got the custody of minor Payal. He has denied the suggestion that he is not sending Payal to school and that he is not giving Payal good clothes to wear and is not providing her good education. He has also denied the suggestion that Payal keeps on roaming around. This, in sum and substance, is the evidence led by the parties before the trial court.

12. The trial court after appreciating the evidence on record, found that the respondent - original applicant was in a good position to take care of her daughter and accordingly, passed an order appointing her as guardian of minor Payal, and further directed the appellant No.1 herein to hand over the custody of minor Payal to the respondent within a period of thirty days. Being aggrieved, the appellants are in appeal.

13. Initially, the appeal was preferred by the appellant No.1 only. Subsequently, an application came to be made for joining Page 14 of 48 C/FA/1937/2004 JUDGMENT the appellants No.2 and 3 namely, the grandparents of minor Payal as parties. Accordingly, now there are three appellants.

14. Ms. Kruti Shah, learned advocate for the appellants, at the outset, vehemently opposed taking up the matter for final hearing. According to the learned advocate, from time to time, the parties had agreed that in case the appellants transfer properties in the name of the minor and secure her future, the respondent would not insist on the custody of the minor. Therefore, the matter was adjourned from time to time for the last three to four years only for this purpose and at no point of time, had the respondent insisted upon final hearing of the matter and that now, at this stage, all of a sudden, the respondent is insisting with the final hearing of the matter.

14.1 On the merits of the case, the learned counsel submitted that the trial court has proceeded under the premise that the respondent-mother is the natural guardian of the child. The attention of the court was invited to section 17 of the Guardians and Wards Act, 1890 to point out that in matters of appointment of a guardian it is the welfare of the child which has to be considered and that the provisions of the Hindu Minority and Guardians Act, 1956 regarding natural guardian cannot be the sole relevant consideration.

14.2 The learned counsel vehemently assailed the impugned judgement and decree passed by the trial court by submitting that right from the time when minor Payal was one and half years old, she was residing with her grandparents and she was attached to them. The trial court has failed to consider as to for how many years the minor was residing with the appellants Page 15 of 48 C/FA/1937/2004 JUDGMENT and that she was fully adjusted and acquainted with them. That the trial court failed to ascertain the wishes of minor and that crucial points which are required to be given due weightage at the time of giving custody of the child, were not considered. It was submitted that in proceedings for appointment of a guardian or custody of a minor child, it is the welfare of the child which is the paramount consideration. It was submitted that the family condition of the mother of the child is not good, inasmuch as, there are eight members in the family of the respondent's father. The respondent's father is a retired teacher and his only source of income is his pension and he has no other steady income. It was submitted that in these hard days, the respondent is not in a position to maintain herself and as such she would not be in a position to bear the educational expenses of minor Payal. On the other hand, the appellant No.1 is a Government servant and has a good salary. He holds his own agricultural lands at Panvad. That the appellant's son and daughter are all well educated and they are financially sound and education oriented and that they would provide good education to minor Payal alias Hiral. Whereas if the custody of the minor is given to the respondent, then she would be under the shelter and obligation of her maternal uncles after the death of her maternal grandfather and except the pension income of her grandfather, there is no steady and certain income of any member of the family of the grandfather of the minor. Thus, considering the overall welfare of the child, the custody of the minor is not required to be disturbed and changed. However, the trial court has failed to appreciate the facts and circumstances of the case from this angle and has directed that the custody of the child be handed over to the respondent.

Page 16 of 48

C/FA/1937/2004 JUDGMENT 14.3 It was argued that even a true mother cannot always claim superior custody rights. It was submitted that it was the respondent who had abandoned the child under the pretext of her contemplated remarriage and that the child who is now staying with the family of the appellants is strongly attached to them and has love and affection for them. In support of her submissions, Ms. Shah placed reliance upon the decision of the Supreme Court in the case of Nil Ratan Kundu and another v. Abhijit Kundu, (2008) 9 SCC 413, for the proposition that in determining the question as to who should be given the custody of a minor child, the paramount consideration is the "welfare of the child" and not the rights of the parents under a statute for the time being in force. Normally in custody cases, the wishes of the minor should be ascertained by the court before deciding as to whom the custody should be given. It was submitted that in the present case, the trial court has failed to ascertain the wishes of the child and hence, the impugned judgement and decree stands vitiated on that ground alone. It was urged that had the trial court called the child and ascertained her wishes, it would have taken a different view. Reliance was also placed upon the decision of the Supreme Court in the case of Lekha v. P. Anil Kumar, (2006) 13 SCC 555, for the proposition that the interest and welfare of the child is paramount and that the wishes of the child should be ascertained.

14.4 The decision of the Supreme Court in the case of Keshav R. Thakur and another v. Suchhibai, (2005) 9 SCC 424, was cited wherein the learned counsel appearing on behalf of the respondent - mother had fairly stated that now that the Page 17 of 48 C/FA/1937/2004 JUDGMENT child was old enough to know his own mind, he was free to decide whether he wishes to remain with his mother or with his grandparents. The court observed that as the grandparents had by reason of interim order or otherwise remained in care and control of the minor for his entire life, it would not be appropriate to grant custody of the child to the mother at that stage. It was, however, observed that the appellants therein would allow the mother to meet the child whenever the respondent approached them for the purpose. Reliance was also placed upon the decision of the Supreme Court in the case of Mamta alias Anju v. Ashok Jagannath Bharuka, (2005) 12 SCC 452, wherein the question before the Supreme Court was as to whether the custody of the two daughters should be given to the appellant who was the mother or to the respondent who was the father. The court observed that before deciding the issue as to whether the custody should be given to the mother or the father or partially to one and partially to the other, the High Court must (a) take into account the wishes of the child concerned, and (b) assess the psychological impact, if any, on the change in custody after obtaining the opinion of a child psychiatrist or a child welfare worker. All this must be done in addition to ascertaining the comparative material welfare that the child/children may enjoy with either parent.

14.5 The decision of the Supreme Court in the case of R. V. Srinath Prasad v. Nandamuri Jayakrishna and others, 2001 (2) SCALE 347, was cited for the proposition that the custody of the minor children is a sensitive issue. It is also a matter involving sentimental attachment. Such a matter is to be approached and tackled carefully. A balance has to be Page 18 of 48 C/FA/1937/2004 JUDGMENT struck between the attachment and sentiments of the parties towards the minor children and the welfare of the minors which is of paramount importance. The decision of the Supreme Court in the case of Chandrakala Menon (Mrs) and another v. Vipin Menon (Capt) and another, (1993) 2 SCC 6, was cited for the proposition that the question regarding custody of a minor child cannot be decided on the basis of the legal rights of the parties. The custody of a child has to be decided on the sole and predominant criterion of what would best serve the interest and welfare of the minor. Reliance was also placed upon the decision of the Supreme Court in the case of Jai Prakash Khadria v. Shyam Sunder Agarwalla and another, 2000 (4) SCALE 584, for the proposition that the orders relating to custody of children are by their very nature not final but are interlocutory in nature and subject to modification at any future time upon proof of change of circumstances requiring change of custody, but such change in custody must be proved to be in the paramount interest of the child. Reliance was also placed upon the decision of this Court in the case of Nitaben Nirmalbhai Patel v. Nirmal Amrutlal Patel, 2012 JX (Guj) 1029.

14.6 The learned counsel invited the attention of the court to the documents annexed along with the memorandum of appeal, to submit that the Village Form No.8A, Annexure "K" and "L", clearly show that the appellants have considerable agricultural lands. Reference was made to the xerox copies of the receipts issued by Shri Shankuntala Balmandir, Chhota Udepur managed by the Vadodara Jilla Pachhat Varg Seva Mandal, to submit that the minor had been admitted to nursery school right from 24th June, 2000 and continued till 12th Page 19 of 48 C/FA/1937/2004 JUDGMENT January, 2001. It was contended that the minor was right from the time she was one and half years old, staying with her grandparents and that the say of the respondent that she was forcibly taken away on 9th July, 2000, is false.

14.7 Ms. Shah vehemently argued that the respondent had all the while been whiling away time on the ground that she would be satisfied if her daughter's future is secure and properties are transferred in her name. Accordingly, the matter was, from time to time, heard on that aspect and that at all times, the appellants were ready and willing to secure the future of the girl and were now taking steps to transfer her share in the property in her name but on account of the ensuing Lok Sabha elections, the revenue authorities were busy and the process was taking some time. It was further submitted that this court at the time of granting interim relief, permitted the appellants to get the custody of the minor at which point of time, the learned advocates for both the sides were heard. Hence, at this stage, no adverse order can be passed against the appellants for enjoying the benefit of the interim relief, because such relief was granted by the court after considering the merits of the case. It was emphatically argued that the conduct of the respondent - mother is also required to be seen. According to the learned counsel, had the respondent been interested in staying with her child, she would have chosen to stay at Panvad with the child as the appellants were always ready and willing to let her stay with them. That during the entire period when the minor was in their custody, the respondent has not provided her with any financial aid and that, had she been concerned about the child, she would have at least taken some steps in that direction. It was also sought to be contended that Page 20 of 48 C/FA/1937/2004 JUDGMENT the respondent has remarried and had suppressed such fact from the court. In conclusion it was urged that the appeal deserves to be allowed.

15. Mr. Chirag Dastoor, learned advocate for the respondent, at the outset submitted that the matter was being adjourned from time to time, however, till date nothing concrete had materialised and now the minor child is likely to attain the age of majority which would render the present appeal infructuous. Therefore, it is expedient that the matter be heard finally.

15.1 Mr. Dastoor further submitted that the trial court has after duly appreciating the evidence on record, arrived at a just conclusion that it was the respondent-mother who was entitled to the custody of the minor child and therefore, there is no warrant for interference by this court. It was submitted that upon death of the father, it is the mother who is the natural guardian. That in the proceedings before the trial court, the appellant No.1 has not pointed out anything adverse against the mother, which disentitles her from keeping the custody of a child. It was submitted that the other factors like the education of the family members, etc., are also required to be taken into consideration. It was pointed out that insofar as the respondent-mother is concerned, she is a graduate and has done various courses; her father is a retired school teacher and her brothers and sisters are all well educated. Whereas the appellant No.1 is 10th standard pass and has done the B.R.S. course and the appellants No.2 and 3 are illiterate. It was submitted that apart from this, it is apparent that the minor child would get a better upbringing with the respondent-

Page 21 of 48

C/FA/1937/2004 JUDGMENT mother. It was submitted that after the appellant No.1 forcibly took away the custody of the minor child, the respondent- mother repeatedly made attempts to get back the custody of the child. Since she was advised to institute proceedings under section 97 of the Code of Criminal Procedure, 1973, initially she had instituted such proceedings and thereafter, having failed there, has filed the present application for custody of the child. It was submitted that the criminal proceedings for issuance of search warrant lie in a very narrow compass and the same would not come in the way of the respondent in the proceedings seeking custody of the minor child under the Guardian and Wards Act. It was submitted that the minor child was about four years old at the time when the appellant No.1 forcibly took her away and after the remand, the matter came up for trial before the trial court in the year 2004. Thus, the minor had been residing with the appellants for a considerable time. During this period the respondent-mother has not been permitted to meet the minor child. Under the circumstances, ascertaining the wishes of the minor would be irrelevant, inasmuch as, she having resided with the appellants for a considerable period of time since she was four years old, it cannot be gainsaid that she would express the wish that she desires to reside with them. It was submitted that in a case like the present one, where the mother who is the natural guardian and is seeking custody of her minor child, in the absence of anything adverse being pointed out against her, she cannot be deprived of the custody of her child. It was urged that a child aged four to five years would hardly be in a position to know what is in its interest and hence, in the facts of the present case, ascertainment of the wish of the child was not material.

Page 22 of 48

C/FA/1937/2004 JUDGMENT 15.2 In support of his submissions, the learned counsel placed reliance upon the decision of the Supreme Court in the case of (Smt.) Manju Tiwari v. Dr. Rajendra Tiwari and another, 1990 (2) GLH 224, wherein the court having regard to the facts and circumstances of the case, was of the view that the custody of the child should be immediately given to the mother as she was less than five years old. The decision of this court in the case of Chetnaben w/o Mukund Chandra Balkrishna Bhatt v. Natwarlal Foolshanker Joshi, 2004 (3) GLH 659, was cited, wherein in the facts of the said case, the minor had been residing with her mother ever since her birth and since the last one year, had been residing with her grandparents. The court held that the minor child had been separated from her mother for nearly a year and having regard to her tender age, it would not be justiciable to try to ascertain her wish by calling her in the court-room. The decision of the Delhi High Court in the case of Smt. Narinder Kaur v. Parshotam Singh, AIR 1988 Delhi 359, was cited, wherein the court has observed that merely because the mother is not having any income of her own, is no ground to deprive her of the custody of the minor child. No amount of wealth is a substitute for the love, affection and care which a mother can bestow on her infant child. Further merely because the parents of the mother are not affluent people is again no ground to deprive the mother of the custody of the child. If the mother is not having an independent income for her maintenance and that of the child, father can certainly be asked to give that maintenance but he cannot use this as a handle to deprive the mother of the custody of the child. It was, accordingly, submitted that in case the appellants were very much concerned about the financial status of the respondent-mother, they could have provided her Page 23 of 48 C/FA/1937/2004 JUDGMENT financial assistance. However, they have no right to deprive the respondent-mother of custody of her minor child.

15.3 Reliance was also placed upon the decision of the Kerala High Court in the case of Lekshmi and another v. Vasantha Kumari, AIR 2005 Kerala 249. The court in the facts of the said case, where the second respondent was a retired principal, was of the view that he would be able to mould the character of the child for his better future. Adverting to the facts of the present case, it was submitted that the respondent's father being a retired school teacher would be able to mould the character of the child for her better future. The decision of the Supreme Court in the case of Kumar V. Jahgirdar v. Chethana Ramatheertha, (2004) 2 SCC 688, was relied upon wherein though the mother had remarried, the court had given the custody of the child to the mother. It was submitted that, therefore, the contention that in case the mother remarries, the question of the child would arise, is without any basis. It was, accordingly, urged that the impugned judgment and decree is in consonance with the settled legal principles and as such, does not warrant interference by this court.

16. In rejoinder, Ms. Shah, learned counsel for the appellants submitted that the decisions on which reliance has been placed by the learned advocate for the respondent would not be applicable to the facts of the present case. That the interest of the minor being paramount, the impugned judgement is required to be set aside mainly on the ground that the same has not taken into consideration the welfare of the minor child, the wishes of the minor child etc. It was, accordingly, urged that the appeal deserves to be allowed and by permitting the Page 24 of 48 C/FA/1937/2004 JUDGMENT appellants to retain the custody of the minor child.

17. It is in the backdrop of the aforesaid facts and contentions, that the validity or otherwise of the impugned judgement and decree passed by the trial court is required to be examined.

18. A perusal of the application made by the respondent - mother shows that the provision of the Guardians and Wards Act under which such application has been made, has not been mentioned. However, for the reasons that follow, the same is relatable to section 25 of the said Act.

19. Before adverting to the merits of the rival contentions, it may be germane to refer to certain statutory provisions. Section 6 of the Hindu Minority and Guardianship Act, 1956, bears the heading "Natural guardians of a Hindu minor" and lays down that the natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are (a) in the case of a boy or an unmarried girl - the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in case of an illegitimate boy or an illegitimate unmarried girl - the mother, and after her, the father. Thus, in the absence of the father, it is the mother who is the natural guardian of a Hindu minor. For this purpose, therefore, it is not necessary either for the father or the mother to file an application for being appointed as a guardian under the Guardians and Wards Act. Evidently therefore, the application is deemed to have been made under Page 25 of 48 C/FA/1937/2004 JUDGMENT section 25 of the Act.

20. Section 25 of the Act bears the heading "Title of guardian to custody of ward" and lays down that 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. Sub-section (3) of section 25 provides that 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.

21. In the present case, the respondent - mother who is the natural guardian of the minor after the death of her husband, filed the application under section 25 of the Act seeking custody of the minor. From the evidence of the respondent as well as the appellant No.1 herein which has been recorded in detail hereinabove, it is apparent that the case of the respondent-mother was that on 09.07.2000, the appellant No.1, with his wife and her sister, came to the residence of the respondent at Bharuch and forcibly took away the minor child from her custody. Subsequently, it appears that the respondent after making attempts to get back custody of the minor child, instituted proceedings for issuance of search warrant under section 97 of the Code of Criminal Procedure, but did not succeed. After the conclusion of the proceedings, after her revision application came to be rejected, the respondent filed the present application for custody of the minor child. In the said proceedings, in response to the averments made in the Page 26 of 48 C/FA/1937/2004 JUDGMENT application, all that has been stated by the appellant No.1 is that the minor was very happy with them and that her mental development was good and that they were in a position to provide her quality education and her future was secured. In the entire written statement, there is not even a whisper that the respondent-mother is unfit or incompetent to take care of the minor child.

22. While it is the case of the respondent-mother that the appellant No.1 had forcibly taken away the minor from the custody of the respondent on 9th July 2000, on behalf of the appellants, it had been contended that right from the time when the minor was one and half years old, the respondent- mother had abandoned her as she wanted to remarry and that is why, the custody of the minor is with the appellants. In this regard, it may be germane to refer to the deposition of the appellant No.1. In his examination-in-chief, the appellant No.1 has clearly stated that when Payal was one and half years old, her custody was handed over to them and that the reason behind handing over the custody was that talks of Chandrikaben's marriage were going on and in the second marriage, the question of the child would arise and hence, Payal's custody was handed over to them. However, in his cross-examination, he has admitted that from 13.10.1997 till 09.07.2000, Payal was residing at Bharuch. He has also admitted that on 09.07.2000, he and his family members had come to Chandrikaben's house.

23. Considering the evidence which has come on record by way of the testimonies of the respondent- mother and the appellant No.1, it is apparent that even according to the Page 27 of 48 C/FA/1937/2004 JUDGMENT appellant No.1, till 09.07.2000, Payal was residing with the respondent-mother. The statement made by the appellant No.1 in his examination-in-chief to the effect that the custody of Payal was handed over to them when she was one and half years old, stands clearly dislodged by what has been stated by him in the cross-examination, viz., till 09.07.2000, Payal was residing at Bharuch. Besides the admission on the part of the appellant No.1 that on 09.07.2000, he and his family members had gone to Chandrikaben's house at Bharuch gives support to the case of the respondent-mother that on that day, the custody of the minor child Payal was forcibly taken away from her. Had it been true, as is sought to be suggested by the appellant No.1 that the respondent-Chandrikaben had abandoned the child as she wanted to re-marry, the respondent would not have relentlessly made so many efforts to get back the custody of the minor by instituting the proceedings for issuance of search warrant under section 97 of the Code as well as by instituting the present proceedings for custody of the minor child. It may be noted that at the stage of hearing of the matter, it has been sought to be contended on behalf of the appellants that the respondent has re-married. However, despite umpteen opportunities having been granted, during the course of the proceedings till the matter was heard, nothing was brought on record by way of affidavit stating the name of the person she had re-married or the date of such marriage. Subsequently, after the matter was heard, at the stage when the court was to proceed with dictation of the judgment, the learned advocate for the appellants sought to place on record an additional affidavit, inter alia stating that the respondent had got married as well as bringing on record various documents in the nature of applications made by the Page 28 of 48 C/FA/1937/2004 JUDGMENT grandfather of the minor for transferring the properties in her name. However, there is no reference to the name of the person whom she is alleged to have married. Besides, having regard to the fact that such documents which were sought to be brought on record after the conclusion of the hearing of the matter, the same were not taken on record by the court as the same would needlessly prolong the matter as the respondent would also have to be given an opportunity to deal with the contents of the affidavit. It may be reiterated that if any adjournment were granted, the matter would go beyond the vacation and would be rendered infructuous by reason of the minor attaining the age of majority. The intention of the appellants in seeking to bring on record documents which do not form part of the record of the trial court and which are not sought to be brought on record by way of additional evidence in accordance with the provisions of rule 27 of order XLI of the Code of Civil Procedure, 1908 does not appear to be bonafide and such affidavit appears to have been tendered with the intention of delaying the adjudication of the matter on merits with a view to render it infructuous. This is more apparent from the vehemence with which the learned counsel for the appellants has opposed the hearing of the matter on merits.

24. Reverting to the merits of the case, it may be noted that before the trial court, no documentary evidence has been produced by the appellant No.1 in support of his case. Therefore, except for the bare say of the appellant No.1 that he was in Government service and that they had agricultural lands and were financially sound and in a better position to maintain the minor child, no evidence in support thereof had been produced. In fact, the appellant No.1 though claiming to be a Page 29 of 48 C/FA/1937/2004 JUDGMENT Government servant has not even stated as to what is his designation and in which Department of the Government he is employed. On the contrary, in his cross-examination, he has admitted that he is not the Government teacher. Nowhere in his entire deposition, has he stated that he is a Government servant and as to in which department he is working. Therefore, the submission of the appellants that they are financially better off than the respondent is merely in the nature of an oral submission without being backed by any documentary evidence in support thereof. It may be noted that along with the memorandum of the first appeal, the appellants have produced certain documents in support of their case. However, such documents have not been brought on record by way of any application for additional evidence as required under rule 27 of Order XLI of the Code. Therefore, though such documents have been produced on record, the same cannot be taken into consideration as the contents thereof have not been proved. However, a brief reference may be made to the nature of such documents. As noticed earlier, along with the memorandum of appeal, xerox copies of fee receipts issued by Shri Shakuntala Bal Mandir, Chhota Udepur have been produced, one of which is dated 24th June 2000, that is, prior to the date when the appellants are alleged to have forcibly taken over the custody of the minor child. A close look at the said receipts reveals that insofar as the receipts dated 12.01.2001 and 28.11.2000 are concerned, the same are issued in the name of Patel Hiral Ramanlal, whereas the receipt dated 24 th June, 2000 is issued in the name of one Tadvi Heena Vanraj, whose name has been struck off and instead, the name of Patel Hiralben Ramanbhai had been inserted. Moreover, in the particulars column, in the receipt dated 28.11.2000, the fee is Page 30 of 48 C/FA/1937/2004 JUDGMENT stated to be for the session July to November, whereas in the receipt dated 24.06.2000, though initially the same appears to have been issued June to July session, subsequently, the same has been cancelled and substituted by the words June. The said document viz. the receipt dated 24.06.2000, therefore, does not inspire confidence and apparently appears to have been placed on record to create a record of the minor being in custody of the appellants prior to the date when her custody is alleged to have been taken away forcibly. The said document also does not inspire confidence because the appellant No.1, in his cross-examination, has admitted that the minor was residing with the respondent up till 9 th July 2000. Besides, as recorded hereinabove, the said documents have not been brought on record by way of any application for bringing on record as additional evidence and therefore, the same do not form part of record of the court.

25. Thus, from the overall evidence which has come on record, the sole ground on which the appellants seek custody of the minor is that they are financially better off than the respondent-mother, which too is based upon a bald statement of the appellants, without any documentary evidence in support thereof.

26. At this juncture, it may be germane to refer to the decisions on which reliance has been placed by the learned counsel for the respective parties. It may be noted that upon death of her husband, the respondent was the sole natural guardian of the minor and therefore, was not required to make any application for being appointed as a guardian. Since it was the case of the respondent that the minor had been taken Page 31 of 48 C/FA/1937/2004 JUDGMENT away from her custody, she had instituted proceedings for custody of the minor child. Therefore, the question before the trial court was as to whether the respondent-mother was entitled to the custody of the minor.

27. The appellants have placed reliance upon the decision of the Supreme Court in the case of Nil Ratan Kundu v. Abhijit Kundu (supra), wherein the court has held that the principles in relation to custody of a minor are well settled. In determining the question as to who should be given the custody of a minor child, the paramount consideration is the "welfare of the child" and not the rights of the parents under the statute for the time being in force. The court held that in selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally or even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is the conducive to the welfare of the minor. In Lekha v. P. Anil Kumar (supra), the Supreme Court was considering the question of custody of a minor child in respect of claim of the father vis-à-vis the mother. The court was of the opinion that the remarriage of the mother cannot be taken as a ground for not granting the custody of the child to the mother. The paramount consideration should be given to the welfare of the child. In the facts of the said case, the court observed that it was not in Page 32 of 48 C/FA/1937/2004 JUDGMENT dispute that the boy was living with his mother for the last several years and the separation at that stage would affect the mental condition and the education of the child and considering that the child himself attached importance to his education if the custody were to be given to the father it would now affect his academic brilliance and future. Therefore, though the father was the natural guardian of the minor, the court granted the custody of the minor child to the mother.

28. In Keshav R. Thakur v. Suchhibai (supra), since the grandparents had the custody of the minor by way of interim order, the Supreme Court did not think it appropriate to grant the custody of the child to the mother. In Mamta alias Anju v. Ashok Jagannath Bharuka (supra), the court held that before deciding the issue as to whether the custody should be given to the mother or the father, the court must take into consideration the wishes of the child concerned and assess the psychological import, if any, on the change in custody after obtaining the opinion of a child psychiatrist or a child welfare worker. It may be noted that these are cases where there were disputes with regard to the custody of minor children between the mother and the father. In R. V. Srinath Prasad v. Nandamuri Jayakrishna and others (supra), the Supreme Court held that neither affluence nor capacity to provide comfortable living should cloud the consideration by the court. In Chandrakala Menon (Mrs) v. Vipin Menon (Capt) (supra), the Supreme Court observed that Vipin Menon being the father of the minor child was her natural guardian. The court was of the view that the question regarding custody of a minor child cannot be decided on the basis of the legal rights of the parties. The custody of a child has to be decided on the Page 33 of 48 C/FA/1937/2004 JUDGMENT sole and predominant criterion of what would best serve the interest and welfare of the minor.

29. Reference may now be made to the decisions on which reliance has been placed by the learned counsel for the respondent. In (Smt.) Manju Tiwari v. Dr. Rajendra Tiwari (supra), the Supreme Court held that the custody of the child should be immediately given to the mother as she was less than five years old. In Chetnaben w/o Mukund Chandra Balkrishna Bhatt v. Natwarlal Foolshanker Joshi (supra), this court was considering a case where the grandparents refused to hand over the custody of the minor to the mother who had remarried. The trial court held that having regard to the financial condition of the grandfather, the welfare of the minor child could be better taken care of by him. The court observed that there could be no dispute that while considering the question of custody of a minor child, the paramount consideration is the welfare of the minor and not the legal right of one or the other party. The court observed that all the decisions on which reliance had been placed were judgments in respect of the custody of a minor child where the parents of such child were estranged from each other, that is, the father and the mother of the child were living separate and the question arose as to whether the custody of the child should be given to the father or the mother. The court was of the view that such judgments could not be applied to the facts of the said case in stricto sensu. The court observed that the grandparents are bound to have natural love and affection for the minor child and vice versa. However, that alone cannot decide the question of custody of the minor. It was observed that it is undisputable that the petitioner therein (mother) was Page 34 of 48 C/FA/1937/2004 JUDGMENT the only natural guardian of the minor Hemani. The court was of the view that, ordinarily, it is the mother who is entitled to the custody of the minor and it is the mother alone who can best look after the welfare of the minor child. The court observed that there was nothing on the record, not even the slightest allegation that the mother has not been looking after the interest of the minor or that she was not fit to look after the welfare of the said child and held that the sound financial condition of the grandparents cannot be the parameter by which the child's welfare can be ascertained. The remarriage of the mother and the existence of a child of her husband's previous marriage cannot be the ground for refusing custody of minor to the mother.

30. In Smt. Narinder Kaur v. Parshotam Singh (supra), the Delhi High Court held that merely because the mother was not having any income of her own, was no ground to deprive her of the custody of the minor child. The court was of the view that no amount of wealth is a substitute for the love, affection and care which a mother can bestow on her infant child. Further merely because the parents of the mother are not affluent people is again no ground to deprive the mother of the custody of the child. If the mother is not having an independent income for her maintenance and that of the child, the father can certainly be asked to give that maintenance but he cannot use this as a handle to deprive the mother of the custody of the child. In Lekshmi v. Vasantha Kumari (supra), the Kerala High Court held that the educational background of the family also is important in appointing a person as a guardian. In the facts of the said case, since the second respondent therein was a retired principal, the court was of the Page 35 of 48 C/FA/1937/2004 JUDGMENT view that he would be able to mould the character of the child for a better future.

31. On a conspectus of the above decisions, it is clear that while considering the question of custody, the welfare of the child is the paramount consideration. Further, the mother being the natural guardian, no amount of wealth is a substitute for the love, affection and care which a mother can bestow on her infant child and the parents of the mother not being affluent people is no ground to deprive the mother of the custody of the child. In selecting a guardian, the court is bound to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings, but over and above physical comforts, moral and ethical values cannot be ignored. Educational background of the family is also an important consideration while considering the question of grant of custody. They are equally or even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.

32. It is in the light of the above principles, that the merits of the present appeal are required to be examined. As noticed earlier, on account of the death of the father of the minor, it is the respondent - mother who is the natural guardian of the minor. Therefore, for the purpose of depriving the natural guardian of the custody of the child, it is for the appellants to make out the case that the respondent as a mother is not fit to be a guardian or that she is incompetent to take care of the Page 36 of 48 C/FA/1937/2004 JUDGMENT welfare of the child.

33. The contents of the plaint, written statement as well as of all the evidence which has been reproduced in detail hereinabove, clearly reveal that except for the say that the appellants that they are in a better financial condition than the respondent, there is not even a whisper or the slightest allegation that the respondent has not been looking after the interest of the minor or that she is not fit to look after the welfare of the child. As held by this court in the case of Chetnaben w/o Mukund Chandra Balkrishna Bhatt v. Natwarlal Foolshanker Joshi (supra), the sound financial condition of the grandparents cannot be the parameter by which the child's welfare can be ascertained. It has also been orally contended on behalf of the appellants that the mother has remarried. Apart from the fact that such contention is not backed by any documentary evidence, even the name of the person whom the respondent is alleged to have married and the date of such marriage are not stated. Moreover, as held by this court in the above decision, the remarriage of the mother cannot be a ground for refusing the custody of the minor.

34. The evidence on record reveals that in the family of the respondent-mother, all the members are well educated and graduates. The father of the respondent is a retired school teacher and therefore, would have been in a position to instill good virtues in the minor child. The respondent-mother apart from being an educated woman, would always shower her love and affection on her only child, whereas the appellant No.1, being the uncle, who already has his own family and children and the grandparents, would be no substitute for the love and Page 37 of 48 C/FA/1937/2004 JUDGMENT affection and the comfort and solace that a mother would give to her minor child. Since the appellants have in no manner pointed out as to how the respondent - mother was unfit to take care of the minor child, except on the question of financial status, the appellants have not made out any case for permitting them to retain the custody of the minor child.

35. It had been emphatically argued on behalf of the appellants that the trial court had not ascertained the wishes of the minor child. In this regard, it may be noted that right from 9th July 2000, when the child was taken away by the appellants, she was residing with them. When the matter came up before the trial court, two years had already passed. Therefore, it is obvious as to what would be the wish of the minor child if the same were to be ascertained, inasmuch as, she had been living without her mother for the last more than two years. Therefore, as held by this court in the case of Chetnaben w/of Mukund Chandra Balkrishna Bhatt v. Natwarlal Foolshanker Joshi (supra), ascertainment of the wishes of the minor who had been residing with her grandparents since last more than two years without her mother, having regard to her tender age, it would not be justiciable to try to ascertain her wishes by calling her to the Court. Therefore, no infirmity can be found in the approach adopted by the trial court in not calling the minor child and ascertaining her wishes, inasmuch as, it is a foregone conclusion that she would have stated that she desires to reside with her grandparents as her mother would be a stranger to her at that stage. However, if one would look to the interest of the minor, had the custody of the minor child been handed over to the mother at that stage, the child would have Page 38 of 48 C/FA/1937/2004 JUDGMENT got the love and affection and proper upbringing as only a mother can give. Besides, the mother was residing at Bharuch which is a city and hence, the child would have been exposed to a better environment and better educational facilities. However, under interim orders of this court, the appellants have retained the custody of the minor child who is now on the verge of attaining the age of majority and therefore, has been deprived of a proper upbringing. As the welfare of the child was the paramount consideration, the trial court had rightly held that it was the mother who was entitled to the custody of the minor child. On the evidence which has come on record, therefore, it cannot be stated that the impugned judgement and decree passed by the trial court suffers from any infirmity so as to warrant interference.

36. An archaic, feudalistic submission has been put forth on behalf of the appellants in ground (A) of the grounds of appeal, that if the custody of the minor child is given to the mother she would be under the shelter and obligation of the maternal uncles after the death of her maternal grandfather, whereas on the other hand she has to stay with her paternal grandparents and uncle as of right which makes a great difference in the development of the personality of a child. Apart from the fact that such submission requires to be stated only to be rejected, this court having had the opportunity to meet the minor on a few occasions during the course of the present proceedings has noticed that on the contrary, though she has remained in the custody of the appellants for all these years, she appears to be suppressed and does not appear to have developed a good personality, which leads to an inference that she has not been brought up as if she was living with the appellants as a Page 39 of 48 C/FA/1937/2004 JUDGMENT matter of right. Moreover, while her cousins were living with their parents, the minor was deprived of the love, affection and care of her mother. Not only that, in all these years the respondent was rarely permitted to meet the minor, that too after having to approach the court on each occasion. This would tantamount to nothing less than cruelty to both the mother and the child. The question that arises is can a child be taken away from the custody of its parent merely because the other side, who is not even a parent, is financially better off. This is a very dangerous proposition whereby any member of the family, even during the lifetime of either of the parents, without such parent being otherwise disqualified to have the custody of the child, can take away the child merely because he or she is financially better off than the parent. It may be noted that in the present case the claim of being financially sound is only a bald claim without there being any evidence whatsoever in support thereof. Even legally, the appellants have no right to keep the custody of the child inasmuch as they have never approached any court of competent jurisdiction for being appointed as guardians of the minor. Besides, in the light of the provisions of sub-section (3) of section 25 of the Guardians and Wards Act, which provide that 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, the respondent never ceased to be the guardian of the minor.

37. Before parting with the matter, it may be noted that the learned counsel for the appellants has made various submissions which though based on facts, are not backed by any affidavit in this regard. At this stage, when the matter is Page 40 of 48 C/FA/1937/2004 JUDGMENT heard finally, the learned counsel for the appellants has submitted that the appellants be permitted to bring all the facts orally stated by their counsel on the record, by way of affidavit. It may be noted that this is an appeal of the year 2004. Even before this Bench, the matter had been adjourned from time to time, however, though orally it had been sought to be submitted on previous occasions that the respondent has got remarried after she got the compensation in the motor accident claim case, till the day when the matter was finally heard, no affidavit had been filed bringing on record any facts regarding when and with whom the marriage had been solemnized. The court with a view to ascertain the wishes of the minor Payal alias Hiral, had called the minor and had talked with her in the Chamber. The appellant No.1, who had accompanied the minor, had stated that they were interested in securing the future of the minor and that they had already transferred certain properties in her name. Accordingly, on 11.03.2014, this court had recorded as under:

"On the last date when the matter was listed for hearing, the appellant had remained personally present before the Court and was required to furnish certain details as regards the properties transferred in the name of the daughter of the respondent No.1 as well as the place where the daughter of the respondent No.1 is studying and residing at present.

However today, the learned advocate for the appellant states that since the mother-in-law of the appellant has expired, he was busy and as such, has not been able to furnish said details, and prays for time. At her request, the matter is adjourned to 25th March, 2014."

38. Therefore, in the Chamber, the appellant No.1 had stated before the court that they had already transferred the Page 41 of 48 C/FA/1937/2004 JUDGMENT properties in the name of the minor, but when called upon to produce the documents evidencing such transfer, documents prepared subsequent thereto were produced for the perusal of the court, showing certain steps being taken for partitioning properties of the appellant No.2 grandfather. Thus, apparently what was stated by the appellant No.1 before this court in the Chamber was patently false.

39. It may be reiterated that though the learned counsel for the appellants had strongly opposed the matter being taken up for final hearing, this court had not entertained any request for adjourning the matter in view of the fact that the Summer Vacation commences on 10th May, 2014 and in July, 2014, the minor attains the age of majority, which would render the appeal infructuous.

40. It may be noted that a distraught widowed mother is since years fighting for the custody of her only daughter. The mother has succeeded in the proceedings before the trial court and it is on account of the interim relief granted in favour of the appellants that the minor continues to be in custody of the appellants. This court while confirming the interim relief vide order dated 09.08.2005, had recorded a consensus between the parties to the effect that the appellants would permit the respondent to meet and stay with minor Payal at Panvad during pendency of the appeal and that they would also permit the respondent to take minor Payal with her for few days during the vacation and/or festival holidays in a manner that the education of minor does not suffer. However, the record reveals that the said order was not respected in true spirit by the appellants and on each occasion, the respondent was Page 42 of 48 C/FA/1937/2004 JUDGMENT required to move application before this court seeking temporary custody of the minor child during the vacation.

41. It may be also noted that this court had occasion to talk with the minor on two to three occasions, both in the Chamber as well as in the court room. The minor, a scrawny girl, who looks like an orphan, appears to have been totally brainwashed by the appellants and has been turned against her mother. In the opinion of this court, even if the minor was in the custody of the appellants, there was no reason for her to bear any animosity towards her mother, unless of course her ears had been poisoned against her mother. She has point blank refused to return to her mother. From the manner in which the girl, who is on the verge of attaining majority addressed the court, it appears that though the appellants have secured her custody under the pretext of her welfare, and have provided her with formal education, they have failed to teach her how to talk to and talk about elders, and have failed to inculcate any good manners in her. Having regard to her conduct before the court, she was asked to leave the courtroom. Thus, the minor has not been given the decent upbringing that she may have got had she resided with the mother, who belongs to a family where every member is educated. The respondent's father being a school teacher, apart from the fact that he would have been able to mould her character for a better future, by merely living with him, the minor would definitely have imbibed some good virtues, which are sorely missing as is evident from the manner in which she had addressed the court. Thus, it is not as if the appellants have, in fact, looked after the welfare of the child after depriving her of the love and affection of her mother. It appears that for most part, she has lived with her Page 43 of 48 C/FA/1937/2004 JUDGMENT aged grandparents in the village, and thereafter with her paternal aunt at Panvad. Moreover, except for the fact that the appellant No.1 claims to be a Government servant (without producing any evidence in this regard) and both the appellants claim to own two or three hectares of agriculture land, it is not as if the appellants are financially very well off, as is sought to be projected in the memorandum of appeal.

42. However, as a result of the interim relief granted by this court, the respondent after having succeeded before the trial court, has been deprived of the love, affection and company of her only daughter without any fault on her part and without the appellants having led even a shred of evidence to show why she is incompetent to have the custody of the child. Now at this stage, even while upholding the judgement and decree passed by the trial court, it is not possible for the court to turn the clock back and provide her an opportunity to shower her love and affection on her daughter. As noticed earlier, the minor has been totally turned against her mother and is on the threshold of attaining majority and hence, the question of the respondent getting her custody would not arise. The deprivation of the company, love and affection of her child cannot in any manner be compensated in terms of money. However, when the respondent succeeds it should not be in the nature of a paper decree, else people would lose faith in the judicial system and the lofty ideals for which it stands.

43. It is by now well settled that at the end of the litigation, the party who succeeds should get the benefit of the decision and in case the other side has obtained any benefit under the interim orders, the principle of restitution has to be invoked.

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C/FA/1937/2004 JUDGMENT

44. The Supreme Court in the case of Karnataka Rare Earth and another v. Senior Geologist, Department of Mines & Geology and another, (2004) 2 SCC 783, has held that the doctrine of actus curia neminem gravabit is not confined in its application only to such acts of the court which are erroneous; the doctrine is applicable to all such acts as to which it can be held that the court would not have so acted had it been correctly apprised of the facts and the law. It is the principle of restitution which is attracted. When on account of an act of the party, persuading the court to pass an order, which at the end is held as not sustainable, has resulted in one party gaining an advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the act of such party, then the successful party finally held entitled to a relief, assessable in terms of money at the end of the litigation, is entitled to be compensated in the same manner in which the parties would have been if the interim order of the court would not have been passed. The successful party can demand: (a) the delivery of benefit earned by the opposite party under the interim order of the court, or (b) to make restitution for what it has lost.

45. In Kalabharati Advertising v. Hemant Vimalnath Narichania and others, (2010) 9 SCC 437, the Supreme Court has held that no litigant can derive any benefit from the mere pendency of a case in a court of law, as the interim order always merges into the final order to be passed in the case and if the case is ultimately dismissed, the interim orders stands nullified automatically. A party cannot be allowed to take any Page 45 of 48 C/FA/1937/2004 JUDGMENT benefit of his own wrong by getting an interim order and thereafter, blame the court. The maxim actus curiae neminem gravabit, which means that the act of the court shall prejudice no one, becomes applicable in such a case. In such a situation, the court is under an obligation to undo the wrong done to a party by the act of the court.

46. In the present case, it is not possible to turn the clock back and put the parties at the stage prior to filing of the appeal and hence, it would be necessary to compensate the respondent by awarding damages for being wrongly deprived of the custody of her minor child. Such damages are quantified at Rs.3,00,000/- (Rupees three lakhs only). Such damages are required to be imposed because not only has the mother been deprived of the opportunity to bring up her child in a proper manner, the child too has been deprived of the better upbringing that she would have got had she lived with her mother. To make matters worse, the child has been turned against the mother who will have no opportunity of her company even in the future, looking to the conduct of the minor and the statements made by her before this court.

47. The learned counsel for the appellants has strongly opposed the grant of such damages in favour of the respondent, by submitting that they are financially not so well off so as to afford to pay such damages. It is highly unfortunate that based upon a specious plea that the appellants are financially more sound as compared to the respondent's father's family, the appellants have managed to keep a widow and daughter apart from the time the daughter was four years of age till the date when she is on the verge of attaining the Page 46 of 48 C/FA/1937/2004 JUDGMENT age of majority and now, when it comes to making payment of damages for depriving the respondent and her daughter of each other's love, affection, care and company, the appellants have the gumption to state before the court that they hail from an economically weak strata of society. Such statement made on behalf of the appellants, flies in the face of the contentions advanced by the learned counsel for the appellants as well as the grounds stated in the memorandum of appeal, whereby the custody of the minor child is sought to be retained solely on the ground that the appellants are financially well of. Nonetheless, if the appellants do try to mitigate the injustice caused to the respondent to the fullest extent, by trying to undo the damage done by them by turning the minor against her mother, and are able to persuade the minor, without any force or coercion, to accept and live with her mother, the respondent may at her option waive payment of such damages.

48. In the light of the above discussion, the appeal fails and is, accordingly, dismissed with costs. The impugned judgement and decree passed by the trial court is hereby confirmed. However, having regard to the fact that the minor is about to attain the age of majority, the question of directing the appellants to handover her custody to the respondent against her wishes would not arise. It is only if the minor desires to return to her mother, that the appellants shall handover the custody of the minor to the respondent. The appellants shall be liable to pay damages of Rs.3,00,000/- to the respondent. However, as observed hereinabove, if the appellants desire to obviate payment of such damages, they may persuade the minor in a proper manner, to return to her mother and reside Page 47 of 48 C/FA/1937/2004 JUDGMENT with her and try to undo the damage which they have done in spoiling the relationship between the mother and the daughter. If the appellants succeed in persuading the minor to live with her mother, such damages may be waived at the option of the respondent.

49. At this stage, the learned counsel for the appellants prays that this judgement be stayed for a period of eight weeks so as to enable the appellants to approach the higher forum. Having regard to the facts and circumstances of the case, the request is turned down.

50. The Registry shall forthwith return the record and proceedings of the case.

(HARSHA DEVANI, J.) parmar* Page 48 of 48

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