Madhya Pradesh High Court
Smt Reeta Khare vs Manoj Khare on 24 July, 2019
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. Misc.Appeal No.2462/2019
Parties Name Smt.Reeta Khare
vs.
Manoj Khare
Date of Order 24/07/2019
Bench Constituted Justice Sujoy Paul &
Justice B.K. Shrivastava
Order passed by Justice B.K.Shrivastava
Whether approved for reporting NO
Name of counsel for parties For Petitioner : Mukesh Agrawal, Adv.
For Respondent: Shri Siddharth
Shrivastava, Adv.
Law laid down -
Significant paragraph numbers -
(ORDER)
24.07.2019
As per: B.K.Shrivastava, J.
This misc.appeal has been filed on 22.4.2019 under section 47 of the Guardians and Wards Act, 1890 against the order dated 8.4.2019 passed by the Family Court, Damoh in MJC (GW) No.3/2016. By the order impugned, the learned lower Court allowed the application filed by the respondent Manoj Khare under section 7 read with section 12 of the Guardians and Wards Act, 1890 and appointed him the guardian of daughter Muskan, aged about 10 years and son Mann, aged about 2 years.
2. It is an admitted position that appellant Reeta Khare married with respondent Manoj Khare on 15.1.2005, and out of their wedlock one daughter "Muskan" and one son named "Mann" were born. The appellant is working as Teacher in Government School. The appellant lodged a report under section 498-A of IPC against the respondent and a case vide Criminal Case No.242/2016 was registered against the respondent. In aforesaid case, the
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M.A. No.2462 of 2019charges under section 498-A and section 324 of IPC were framed against the respondent by the Court and thereafter, the Judicial Magistrate First Class, Damoh acquitted the respondent by judgment dated 4.3.2017.
3. The respondent filed an application under section 7 read with section 12 of the Guardians and Wards Act, 1890 on 27.9.2016 for granting the custody of daughter Muskan and son Mann. The appellant filed the reply of aforesaid application on 6.2.2017. Thereafter the trial court framed the issues on 6.4.2017 and recorded the evidence of both the parties. On 8.4.2019 the impugned order was passed by the trial court by allowing the application filed by the respondent. The Court gave the custody of Muskan and Mann to the respondent.
4. It is submitted by the counsel for appellant that the judgment and decree dated 8.4.2019 passed by the Principal Judge, Family Court, Damoh is perverse, contrary to the evidence available on record, illegal and not sustainable under the law. It should have been held that in the facts and circumstances of the case and in the light of the evidence available on record, the respondent/husband is not entitled for custody of the children because their custody is more safe in the hands of mother. Looking to the financial position of the appellant, the custody should be given to the appellant because the respondent is not having any sufficient source of income. The Court also committed mistake by dismissing the application for recording the evidence of Muskan. The application was filed by the appellant for taking the evidence of Muskan to ascertain the welfare of child but the trial court dismissed the aforesaid application without any ground. Therefore, it is requested to set aside the impugned judgment dated 8.4.2019 passed by the Principal Judge, Family Court in MJC (GW) No.3/2016.
5. The respondent strongly opposed the application and supported the order passed by the Family Court, Damoh. It is submitted by the respondent that he is competent to take the custody of children. The respondent is a woman of loose character having illicit relation with another person named Pramendra Khetan. She had also arrested by the police with Pramendra Khetan from a hotel in a suspicious condition. Therefore, future
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M.A. No.2462 of 2019of the children will not be safe in the hands of appellant. On the aforesaid grounds, it is requested to dismiss the present appeal.
6. We have heard the learned counsel for parties and perused the record.
7. It appears from the order passed by the Family Court that the trial court dismissed the application only upon the ground that the appellant is having some illicit relationship with Pramendra Khetan. The Court observed in Para 21 as under:-
^^ vfHkys[k ij vk;h lk{; ,oa nLrkost ls ;g Li"V gS fd vukosfndk ds izesUnz [ksrku uked O;fDr ls ,sls laca/k gS tks fdlh ifr ,oa cPpksa ds lgus ;ksX; ugha gSaA ;fn nksuksa vo;Ld cPps vukosfndk ds ikl jgsaxs rks fuf'pr :i ls mUgsa Hkfo"; esa bl ckr dk Hkyh&Hkkafr Kku gks tk;sxk fd mudh eka ds laca/k fdlh vU; O;fDr ¼izesUnz [ksrku½ ls gSa] bl dkj.k vo;Ldksa ds Hkfo"; ,oa LokLF; ij cqjk vlj iM+ ldrk gS] ftl dkj.k mUgsa ekufld v?kkr ,oa lekt esa mudh Nfo /kwfey gks tk;sxhA Hkys gh vukosfndk dh vk; vkosnd ls vf/kd gS] ijUrq vo;Ldksa dk dY;k.k loksZifj gS] /ku bldk i;kZ; ugha gSa& vFkkZr~ U;k;ky; ds fopkj.k ds fy;s egRoiw.kZ fo"k; f'k'kq dk dY;k.k gksrk gS] ijUrq f'k'kq dk dY;k.k dsoy /ku }kjk vkSj dsoy 'kkjhfjd lq[k }kjk ugha vkadk tkuk pkfg;sA**
8. The question for decision before this Court is whether the respondent is entitled to get the custody of minor children?
9. Undisputedly, "father" is the natural guardian of the children as per section 6 of the Hindu Minority and Guardianship Act, 1956, which is as under:-
"6. Natural guardians of a Hindu minor - 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 the case of an illegitimate boy or an illegitimate unmarried girl - the mother, and after her, the father;
(c). in the case of a married girl - the husband :
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Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section -
(a). if he has ceased to be a Hindu, or
(b). if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation --- In this section, the expression "father" and "mother" do not include a step-father and a step-mother."
10. The Hindu Minority and Guardianship Act, 1956 was amended and modified. It is supplemented to the Guardians and Wards Act, 1890. The Court has taken preference of the minors under section 17 of the Guardians and Wards Act, 1890. Section 17 of the aforesaid Act is quoted as under:-
"17. Matters to be considered by the Court in appointing guardian. - (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2). In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If minor is old enough to form an intelligent preference, the Court may consider that preference.
***** (5) The Court shall not appoint or declare any person to be a guardian against his will."
11. In Athar Hussain Vs. Syed Siraj Ahmed, AIR 2010 SC 1417=2010 AIR SCW 597, the Supreme Court observed that :-
"In matters of custody, as well-settled by judicial precedents, welfare of the children is the sole and single yardstick by which the Court shall assess the comparative merit of
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the parties contesting for custody. Therefore, while deciding the question of interim custody, court must be guided by the welfare of the children since S. 12 empowers the Court to make any order as it deems proper."
12. In Gaurav Nagpal Vs. Sumedha Nagpal, AIR 2009 SC 557, the Supreme Court also observed that:-
"The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the 'welfare of the child' and not rights of the parents under a statute for the time being in force. When the Court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The Court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. The word 'welfare' used in S. 13 of the 1956 Act has to be construed liberally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parents patriae jurisdiction arising in such cases."
13. In Gita Hariharan Vs. Reserve Bank of India with Dr.Vandana Shiva Vs. Jayanta Bandhopadhyaya & another, AIR 1999 SC 1149, the Supreme Court considered the language of section 6 of the Hindu Minority and Guardianship Act, 1956 and 3 Judges Bench observed by majority of 2+1 as under:-
"Section 6(a) uses the words, "the father and after him, the mother". This phrase on a cursory reading, does given an
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impression that the mother can be considered to be natural guardian of the minor only after the lifetime of the father. If the section is so understood the section has to be struck down as unconstitutional as it undoubtedly violates gender equality, one of the basic principles of our Constitution. It is well settled that if on one construction a given statute will become unconstitutional, whereas on another construction, which may be open, the statute remains within the constitutional limits, the Court will prefer the latter on the ground that the Legislature is presumed to have acted in accordance with the Constitution and courts generally lean in favour of the constitutionality of the statutory provisions. The word 'after' need not necessarily mean 'after the lifetime'. In the context in which it appears in S. 6(a), it means 'in the absence of', the word 'absence' therein referring to the father's absence from the care of the minor's property or person for any reason whatever. If the father is wholly indifferent to the matters of the minor even if he is living with the mother or if by virtue of mutual understanding between the father and the mother, the latter is put exclusively in charge of the minor, or if the father is physically unable to take care of the minor either because of his staying away from the place where the mother and the minor are living or because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent and the mother being a recognised natural guardian, can act validly on behalf of the minor as the guardian. Such an interpretation will be the natural outcome of harmonious construction of S. 4 and S. 6 of HMG Act, without causing any violence to the language of S. 6(a)."
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M.A. No.2462 of 201914. Therefore, it is the clear position of law that the paramount consideration is the welfare of child and as per section 17(2) of the Guardian and Wards Act, 1890, the Court is bound to take decision after taking into consideration the age, sex and religion of the minor, the character and capacity of the proposed guardian.
15. In this case, the learned lower court passed the order only upon the basis of illicit relationship of the appellant with another person. The Court has not observed the capacity of the proposed guardian. Sufficient pleadings are available on the record. Therefore, the Court should examine the financial capacity of both parties. In this case, the girl child was aged about 10 years at the time of filing of the application in the year 2016. At present, she is a girl aged about 13-14 years. The interest of girl should be protected and Court is obliged to examine all circumstances of both parties. The only reason that the appellant is having illicit relationship with another person, cannot be considered as sufficient ground.
16. In the case of Smt. Sadhana Randev Vs. Santosh Kumar, (1998) 1 DMC 710 = (1997) AllWC 1796 it was argued before the High Court that the wife has relation with a person named Sanjeev Mishra and she has a daughter, therefore, she is not entitled for the custody of the child. The Court said in Para 10 that it should not disqualify the wife to become a guardian and keep the custody of the children for the following reasons :-
"10. Even for the argument's sake assuming that she is having some relations with Sanjiv Misra, it should not disqualify her to become a guardian and keep the custody of the child for the following reasons:
(i) The children have expressed their preference.
(ii) She being the mother and motherly instinct is of emotional value than fatherly instinct. The children are living with the
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mother and she is given education to them. It would not be possible to hand over the children against their wishes to the father as they are now grown up beyond 13 years.
(iii) It cannot be ruled out that the father has an intention to grab the property and as such wants to get the custody of children and then dispose of the property. The mother also cannot dispose of the property without the consent of the Court i.e. the District Judge unless the District Judge is found that it is essential for the benefit of the minor and in such circumstances if she has taken some social help from Sanjiv Misra it does not mean that she is virtually living as wife. Once the allegations of chastity are levelled against the wife by the husband and there is complete breakdown of marriage, no reconciliation is possible."
17. It appears from the record that the appellant/wife is educated upto M.Sc., M.Phill and B.Ed. She is also working as Teacher in Government School Semra Madhiya; while the respondent is having the qualification only upto B.A. It appears from Para 16 of the impugned order that the appellant also produced documentary evidence regarding her income. The respondent has also admitted in Para 21 of his statement that his wife is serving as Government Teacher and receiving the pay about Rs.30,000/- p.m. and from the beginning she is bearing the expenses of education of both the children. He has also admitted that he is not having any special source of income. He also accepted the suggestion that his wife is in better condition to bear the expenses of children. In para 22 he said that he was working as Supervisor in Vidhya Stores and getting Rs.4000/- p.m.
18. Therefore, in view of aforesaid it appears that the trial court has not considered the aforesaid aspect. The trial court dis not observe the evidence for the purpose of deciding the financial capacity of both parties. In addition to that, it appears
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M.A. No.2462 of 2019that on 15.11.2018 an application was filed by the appellant before the lower Court for granting the permission of recording the statement of daughter Muskan Khare before the Court. It was stated that the statement is essential for the purpose of deciding the willingness of girl. The husband filed the reply of aforesaid application on 10.12.2018. The trial court dismissed the aforesaid application on 22.12.2018 by observing that there is no any provision in the Act for recording the evidence of child. The aforesaid observation of the trial court is not correct. It is settled law that the paramount consideration is the welfare of child for deciding the issue of custody. Muskan is a girl child, aged about 13-14 years, therefore, she is able to give the statement before the Court. The trial court is competent to record the statements of wards. The trial court is also competent to interact with the children. Interaction with the children and the evidence of children may help the Court in deciding the custody and for taking the proper decision in relation to the welfare of children.
19. Therefore, the view taken by the lower Court is not sustainable and the matter is liable to be remanded for fresh decision.
20. Accordingly, the impugned order is set aside and the matter is remanded back to the Principal Judge, Family Court, Damoh with the following directions:-
1. The trial court will give the opportunity to the appellant of recording the evidence of girl Muskan.
2. The trial court may interact with both children in chamber of the Court.
3. The trial court will give the opportunity of hearing to both the parties and thereafter pass the order in the light of section 17 of the Guardians and Wards Act, 1890 and give the clear finding regarding the character and capacity of both parties.
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M.A. No.2462 of 201921. The aforesaid exercise will be completed as far as possible within 6 months from 12.8.2019.
22. Both parties are directed to remain present before the trial court on 12.8.2019.
23. With the aforesaid observations/directions, the present appeal stands disposed of.
(SUJOY PAUL) (B.K.SHRIVASTAVA )
JUDGE JUDGE
TG/-
Digitally signed by TRUPTI
GUNJAL
Date: 2019.07.27 15:20:05
+05'30'