Gauhati High Court
Meera Agarwalla Bansal And Anr. vs Shyam Sundar Agarwalla on 18 December, 1999
Equivalent citations: I(2002)DMC593
Author: Brijesh Kumar
Bench: Brijesh Kumar
JUDGMENT D.N. Chowdhury, J.
1. This appeal is concerned with the wardship proceeding effecting the custody, care and control of minor Ankur who was born on 9.12.1991. The real issue in this case is whether the child Ankur should be given in custody of the paternal grand father or the maternal grand father which has arisen on the following circumstances.
2. The respondent in this proceeding made an application before the Family Court for an order as to the guardianship of the minor Master Ankur impleading the mother of the child as well as the maternal grand father, the appellants in this proceeding, as the opposite parties. The respondent, in the aforesaid application before the Principal Judge, Family Court pleaded that his only son Sanjay Agarwalla had married the opposite party No. 1 (appellant No. 1 herein) on 5.5.1990 as per. the Hindu rites and customs. Out of their wedlock Master Ankur was born on 9.12.1991. His son Sanjay Agarwalla died on 1.8.1995. The opposite party No. I (appellant No. 1) used to live in his house with Master Ankur till the first part of 1996. She left the house in the first part of 1996 for Bombay leaving Master Ankur with him and his wife with the intention to remarry. She returned to his house in July, 1996. On July 26,1996 the opposite party No. I went out with Master Ankur (hereinafter referred to as the minor) for a walk in the garden with his permission. But instead of returning to his house the opposite party No. 1 along with the minor went to the house of her father (opposite party No. 2). He went to the house of the opposite party No. 2 (appellant No. 2) with his wife and found his grand son eagerly waiting for them. Then the respondent wanted to take back his daughter-in-law with her son (that is the appellant No. 1 and the minor) the appellant No. 2 informed him that the appellant No. I would get re-married soon and the minor would remain with the appellant No. 2. Appellant No. 1 finally re-married at Calcutta to one Rajesh Bansal of Calcutta, a widower having a 10 years son and 5 years daughter. The respondent coming to know that the minor would be adopted by the appellant No. 2 and thereby depriving him of his only male legal heir the respondent instituted the case before the Family Court on 27.2.1997 Under Section 7 of Guardians and Wards Act, 1890 (hereinafter referred to as the Act, 1890) for appointing him as the guardian and custodian of the minor. Respondent also moved a petition under Order 39, Rules 1 & 2, CPC for restraining the opposite party No. 1 (appellant No. 1) from giving the minor to her father, the opposite party No. 2 (appellant No. 2) for adoption. The notice of injunction was served on the opposite party No. 1 on 28.2.1997. The opposite party No. 1 filed her objection against the injunction petition stating inter alia, that her father the opposite party No. 1 had adopted the minor at Dergaon on 9.2.1997 and the adoption was duly registered on 27.2.1997/28.2.1997. The respondent questioned the aforesaid adoption as violative of the provisions of the Hindu Adoptions and Maintenance Act, 1956 (for short the Act, 1956) so much so that the opposite party No. 2 had already adopted another boy Sanjeet Khadaria on 18:12.1987. The respondent (petitioner before the Family Court) also pleaded that the minor is his only legal heir, the opposite party No. 1 (appellant No. 1) was living in Calcutta after re-marriage the minor Ankur is his only male legal heir and island of hope. Accordingly he prayed for the guardianship of the minor. The appellants as opposite parties contested the claim of the respondent and filed two separate written statements contents of which are similar in nature and which are dealt herein below. According to the opposite parties, the opposite party No. 1 lived in the house of the petitioner with the minor after the death of Sanjay Agarwalla, husband of the opposite party No. 1. It was admitted that the opposite party No. 1 was taken to Bombay keeping the minor in the petitioner's house in connection with her re-marriage and that ultimately opposite party No. 1 got married to one Rajesh Bansal of Calcutta. They claimed that before re-marriage the opposite party No. 1 lived in the house of the petitioner with the minor but she was not properly treated by her uneducated father-in-law and mother-in-law. 'The opposite party No. I asserted that her life as well as the life of the minor was made miserable by the in-laws and they began to hurl allegation on her character. In those circumstances she left the house with the minor and, according to the opposite party No. 1, for such leaving no such permission is required either for herself or for the minor as she was a natural guardian of the minor at the relevant time. The opposite party also pleaded and asserted that the opposite party No. 2, father of the opposite party No. 1 is/was rich person having enormous resources to take care of the minor whereas the petitioner is comparatively much poorer to the appellant No. 2. The opposite party No. 1 in her written statement, which was also adopted by the opposite party No. 2 in its entirety alleged that the application Under Section 7 of the Act, 1890 became infructuous on the ground that the minor was given in adoption on 9.2.1997 by the appellant No. 1 to the appellant No. 2 according to Hindu rites and customs and subsequently on 27.2.1997/28.2.1997 the deed of adoption was executed between the respondents 1 and 2 which was registered at Golaghat Sub-Registry office since the adoption place at Dorgaon. The opposite party also questioned the jurisdiction of the Family Court in maintaining the petition for guardianship on the face of the adoption of the minor by the appellant No. 2.
3. The opposite party also pleaded that the petitioner (respondent in this appeal) and his wife had bequeathed all their movable and immovable properties in the name of their two daughters leaving nothing for the grand son who was given on adoption to the opposite party No. 2 who became the natural guardian of the minor and, therefore, question of appointing the guardian did not arise.
4. Upon pleadings, the Family Court framed the following issues :
(1) Whether the petition for guardianship is maintainable ?
(2) Whether welfare of the minor Master Ankur would be better protected if he is given in custody of the petitioner from the respondent No. 2 ?
5. The respondent examined four witnesses including himself and exhibited seven documents. The opposite party also examined themselves and exhibited 20 documents. The learned Family Court also in addition called upon the child and conversed with him in Court in presence of both the parties and also in their absence to know his mind. After considering the materials and evidence on record learned Family Court found the application Under Section 9 as maintainable. The learned Family Court also addressed itself to the issues raised about the defect in the petition in the absence of the required declaration or willingness of the proposed guardian to act along with the declaration signed by him and attested by two witnesses as prescribed in Sub-Section (3) of Section 10 of the Act, 1890. The learned Principal Judge, Family Court held that the above defect was a formal defect which was removed by the petitioner on being pointed out by the Court. The Family Court did not attach much importance on the deed of adoption taking note of the surrounding circumstances. As regards the issue No. 2 the learned Judge on evaluation of the facts and circumstances held that both the parties are financially capable of maintaining the minor, but preferred the respondent for appointing as guardian on the ground that the minor would get more love and personal care in the custody of the respondent than in the custody of the opposite party No. 2. The Family Court reached the said conclusion of appraisal of the evidence on records. The Family Court while passing the above order also took into consideration the fact that the respondent/petitioner was nearer of kin of the minor than the opposity party No. 2. On evaluation of the facts the Family Court reached the conclusion that the appellant No. 2 had already adopted Sangeet Khadria as his son and whereas the petitioner would be without any male legal heir in the absence of the minor. The Family Court on consideration of the evidence on record found that the opposite party No. 2 would have little time to spend with the minor in view of his business commitment and social works. He also referred in his discussion that Master Ankur in course of his confabulation apprised the Judge, Family Court that most of the time the minor had to stay with the servants in the house of the opposite party No. 2 as the opposite party No. 2 had to live at Dergaon, about 200. kms. from Guwahati. Since the daughters of the opposity party No. 2 lived outside there was no other person except the servants in the house to look after the minor. In the circumstances the Family Court appointed the present respondent (petitioner before the Family Court) as the guardian of the minor and the Court ordered the opposite party No. I to hand over the minor to the petitioner as soon as his annual examination was over. Hence this appeal.
6. Mr. O.P. Bhati, learned Counsel for the appellant at first assailed the jurisdiction of the Civil Court for entertaining an application Under Section 7 of the Act, 1890. The learned Counsel submitted that on the adoption of the minor by the appellant No. 2 which was registered on 27.2.1997 the factum of adoption became fait accompli and under the circumstances the Family Court was not competent to assume the jurisdiction on the subject-matter, more so, on a matter pertaining to Hindu Adoptions and Maintenance Act which was outside the purview of Section 7. Mr. Bhati did not dispute that the Family Court is/was within its jurisdiction to entertain a proceeding in relation to the guardianship of a person or the custody of, or access to, any minor. The subject-matter for adjudication before the Family Court is/was in relation to guardianship of a person or the custody of the minor Ankur. In that proceeding the respondents referred to and relied upon the alleged adoption which was duly considered by the Family Court and did not give any credence to the said deed. The Family Court is/was competent Court to adjudicate the matter regarding guardianship or the custody of the minor. Section 7(a) of the Act clearly enumerates the categories of matters respecting which Family Court shall have an exercise of jurisdiction. A proceeding in relation to the guardianship of a person or the custody of a minor cannot be treated as a proceeding pertaining to the adoption of a minor. Therefore, the aforesaid contention of Mr. Bhati does not hold any ground. Mr. Bhati brought our attention to Section 10 of the Guardians and Wards Act, 1890 which provided the prescribed form of application. Under the Act the application must be accompanied by declaration of the willingness of the proposed guardian to act and the declaration must be signed by him and attested atleast by two witnesses. The learned Counsel referring to the application submitted that in the case in hand the respondents did not make the aforesaid declaration as required under Sub-section 3 of Section 10 and therefore the application itself was* liable to be dismissed.
7. The above contention of Mr. Bhati, the learned Counsel does not hold water in view of the fact that the petitioner/respondent removed the initial defects in his application filed an affidavit on 7.12.1998 accompanied by declaration showing his willingness to act as guardian and the said declaration was signed by him and attested by two witnesses. Mr. Bhati, the learned Counsel then referred to Ext. F the deed of adoption, which was duly registered under the Indian Registration Act and also submitted that whenever any document registered under the law in time being in force is/was produced before the Court regarding adoption made and is/was signed by the persons giving and the persons taking the child in adoption a duty was cast to the Court to presume that the adoption has been made in compliance with the provision of the Act, unless and until it is disproved under Section 16 of the Act. The learned Counsel submitted that the registered deeds/documents Ext. F clinch the issue regarding adoption and the Court ought to have presumed that the said adoption was made as per the provisions of the Act and was duty bound to give full fact to the aforesaid adoption.
8. Mr. B.K. Das, the learned Sr. Counsel appearing on behalf of the respondents, on the other hand, submitted that the Section 16 of the Hindu Adoptions and Maintenance Act, 1956 only provides a presumption to be drawn by the Court and such presumptions are always rebuttable on the basis of evidence adduced before the Court concerned. Mr. Das the learned Counsel in support of his contention referred and relied upon the decision of the Supreme Court in Lal Man v. Dy. Director of Consolidation and Ors., reported in (1998) 8 SCC 693. The learned Family Court on considering the materials on record rightly reached its conclusion that in fact there was no valid adoption by the appellant No. 2. Mr. Das, the learned Sr. Counsel in support of his contention further referred to the evidence of the respondent No. I who was examined as witness No. 1 on behalf of the petitioner. Wherein he stated that the respondent No. 2 has had adopted another boy namely Sangeet Khadria who was studying in Carmel School, Ext. 1 is the certificate issued by the Principal, Ext. 2 is the declaration of the appellant No. 2 made at the time of admission of Sangeet Khadria in the Carmel School showing himself as parent of said Sangeet Khadria along with his two daughters, Geetanjali and Arpita, Ext. 3 was the Admit Card of Sangeet Khadria who appeared in the H.S.L.C. Examination in 1995. In all these three documents Exs. 1, 2 and 3 the appellant No. 2 was shown as father of Sangeet Khadria. The witness was cross-examined by the parties. In cross-examination the witness stated as follows : While my son, Sanjay Agarwalla was alive, we were made known by the respondent No. 2 and others that he had adopted Sangeet Khadria, the son of his younger brother. The fact that the respondent No. 2 has shown himself as the father of Sangeet Khardria proves that Sangeet Khadria was adopted by the respondent No. 2". The above witness was practically not cross-examined on this issue. The appellant No. 2 in his evidence, however, denied that he was not the adopted father of Sangeet Khadria and Principal of Carmel School, Jorhat had clarified it by certificate Ext. Q.
9. The learned Family Court duly considered this aspect of the matter and did not give any credence on Ext. Q issued by the Principal of the Carmel School, Jorhat. It may be mentioned that Ext. Q dated 21.5.1998, which is a certificate, was issued by the Principal of the School much after filing of the application by the respondent praying for guardianship. The aforesaid certificate dated 21.5.1998 reads as follows:
"TO WHOM IT MAY CONCERN The certificate issued by this school on 4.6.1997 showing the name of the father and mother of Mr. Sangeet Khadria as Mr. Jay Prakash Khadria and Mrs. Bina Khadria is hereby cancelled as the same was issued due to inadvertent mistake and misrepresentation.
It is certified that the actual name of the father of Mr. Sangeet Khadria is Jyoti Prasad Khadria and there is not any record in the school as regards the name of his mother.
Sd/ Illegible Principal
10. The leanred Family Court considering the materials on record did not put any reliance on Ext. Q and relied upon the Ext. 2 and, therefore, did not act upon Ext. F. As alluded the above document is ad litem. The author of the document was not examined by the appellant No. 2 explaining the circumstances and occasioned the cancellation and clarifying the state of affairs that led to issuance of certificate, as well as the situations calling for the revocation of the certificate dated 4.6.1997.
11. Section 16 of the Hindu Adoptions and Maintenance Act, 1956 is only a rule of evidence, it cannot be construed as mandate upon the Court to act upon such an adoption deed as a proof of adoption. Needless to say that the question of onus loses its significance to a great extent when evidence are laid by the parties, the learned Family Court on appraisal of the evidence and in the circumstances held that the said adoption could not validly take place during the existence of prior adoption of Sangeet Khadria. The conditions for valid adoption are delineated in Chapter-II of the Act, 1956. In case of adoption of a son the adoptive father or mother by whom the adoption is made must not have a Hindu son's son or son's son's (whether by legitimate blood relationship or by adoption) living at the time of adoption. Under this circumstance the finding of the Family Court cannot be said to be unjustified. The learned Family Court on appreciation of the materials on record in its entirety balanced the respective claim and on evaluation found the respondent to be suitable to act as a guardian of the minor, having regard to, and keeping in mind the interest and Welfare of the minor. Under the Scheme of the Act, in appointing or declaring the guardian of a minor the Court shall, subject to provisions of Section 17, is to be guided for the welfare of the minor. The Court is bound to consider the welfare of the child and to treat it as the paramount consideration. It is in the interest of the State that children should be properly brought up and educated and the State as parents patriae is duty bound to look to the maintenance and education of the children. The Indian Constitution being alive to this aspect of the matter incorporated it as one of the directive principles of State Policy in Chapter-IV 39(f). In the case in hand, as alluded earlier, the Family Court took into consideration the consanguity and propingquity of the parties. The above consideration is in conformity with the spirit of Section 17 of the Act. The minor is undoubtedly, the only male heir of the respondents. The parties are Hindu and according to the Hindu Law in case of minor who has lost both his/her parents the nearest male kinsman should be appointed their guardian, the paternal kinsman having the preference over the maternal (Re Gulbai and Lilbai, Minors, Dhaklibai, widow, reported in ILR Bombay XXXI and XXXII). In the circumstances from amongst the two grandfathers the learned Family Court preferred the paternal grand father than the maternal grand father which as such, cannot be faulted. The learned Family Court took note of all the facts pertaining to respective parties. The learned Judge on considering all the materials on evidence found that the respondents and his wife were taking more concern about the health and well being of the minor than the appellant No. 2. The learned Judge mentioned this aspect of the matter which reads as follows:
".......On consideration of the evidence of both sides as a whole, find that the petitioner will have plenty of time to play with Master Ankur and to look after his education in proper manner while opposite party No. 2 will have little time to spend with Master Ankur in view of his personal business firms and social works. While talking to Master Ankur in Court in absence of both the parties, I had learnt that Master Ankur spent most of his time with the servants in the house of the opposite party No. 2 as the (opposite party No. 2) had to live mostly in Dergaon about 200 kms. from Guwahati. As all the daughters of opposite party No. 2 live outside, there is no other person except the servants of the opposite party No. 2 in his house to look after Master Ankur. Therefore, it cannot be expected that love, affection and care necessary for Master Ankur's welfare will be more favourable in the custody of the opposite party No. 2 than in the custody of the petitioner, although Exts. E, S & T show that Master Ankur has been maintaining normal health and good academic record at present in the custody of opposite party No. 2."
12. On appreciation of the evidence on record the learned Judge found that Master Ankur had to live mostly in Dergaon about 200 kms. from Guwahati the evidence on record also clearly points out to the concern of the respondent No. I and his wife, pertaining to health and well being of the minor. The learned Judge also took note of the fact that minor was born at Guwahati at the residence of respondent No. I and he was staying with the respondent No. 1 at the time of institution of the case. The learned Family Court also found that the appellant No. 1, the mother of her re-marriage was staying in Calcutta at the house of her second husband leaving the minor with her father, the opposite party No. 2 (appellant No. 2). The Court also noted about the brisk manner of the execution and registration of the deed of adoption by the appellants Nos. 1 and 2. The Family Court also took into consideration of the facts that the respondent was well settled in his business and was not required to be physically present at his business place. He had enough time to look after the education of Master Ankur and to give his company. 'The learned Family Court also rejected the plea of the appellant that since the respondent and his wife were not highly educated the minor would not. get proper attention in his education. The learned Judge turning down the said plea observed that the two daughters of the respondent were graduated from the Cotton College of Guwahati, a premier, institution of Assam while his deceased son was a Commerce graduate. On overall consideration of the matter the learned Court reached the following conclusion "(a)........ both the parties are financially capable of maintaining the minor Master Ankur well.
(b) Master Ankur would get more love and personal care in the custody of the petitioner than in the custody of the opposite party No. 2.
(c) The opposite party No. 2 has already taken Sangeet Khadria as his adopted son while the petitioner will be without any male legal heir in the absence of Master Ankur.
(d) The petitioner is nearer of kin of Master Ankur than opposite party No. 2.
(e) Master Ankur has no ill-feeling towards his paternal grandfather, the petitioner.
Accordingly the learned Family Court appointed the respondent as guardian of Master Ankur. The reason given by the Appellate Authority cannot be said to be arbitrary, capricious and unreasonable. Further, it was not arid cannot be disputed that the question of custody of minor Ankur is a matter which by statute conferred on the Family Court and that it peculiarly lies within the discretions of the learned Principal Judge. Family Court had heard the case and had the opportunity of seeing the parties and investigated the circumstances. Such decision of the Court are not to be disturbed unless it is found that the learned Judge concerned has clearly acted on some wrong principle or disregarded some material evidence. An Appellate Court will not interfere with the discretion of the Judge at first instance except for very strong reasons (Re Kaye (1866) 1 Ch App 387). No circumstances which could be regarded in any way relevant to the welfare of the minor was ignored. Under the Scheme of the Act the Court is bound to consider first the welfare of the minor and treat it as the paramount consideration. The learned Family Court has bestowed its due regard to the above circumstances."
13. Mr. O.P. Bhati, the learned Counsel for the petitioner/appellant emphasised on the material superiority of the appellant No. 2 which provided an edge upon the said appellant in his claim for the wardship. The contention of the learned Counsel is based on the assumption that in the end the cash nexus wins-money talks. But money is to everything it cannot buy one's happiness. In Dhanwanti Joshi v. Madhavunde reported in I (1998) DMC 1=1998(1) All India Hindu Law Reporter 114 (SC), the Supreme Court aptly adverted to the following observation of Lindley, L.J., in Mc Grath (1893)1 Ch 143 and the statement of Hardy Boys, J in Walker v. Walker and Harrison in (1981 New Zealand Recent Law) in the following passages respectively:
"......We shall next consider the point which solely appealed to the Family Court and the High Court in the present proceedings namely that the respondent is financially well off and can take care of the child better and give him superior education in USA. Lindley, L.J. in Me Grath (infants), Re Ch at p 148 stated that:
"... the welfare of the child is not to be measured by money alone nor by physical comfort only. The word 'welfare' must be taken in its widest sense. The moral and religious welfare must be considered as well as its physical well-being. Nor can the ties of affection be disregarded".
"......As to the "secondary" nature of material consideration, Hardy Boys, J. of the New Zealand Court said in Walker v. Walker & Harrisonn (cited by British Law Commission, working paper No. 96, para 6. 10) :
"Welfare is an all-encompassing word. It includes material welfare, both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the stability and the security, the living and understanding care and guidance, the warm and compassionate relationships, that are essential for the full development of the child's own character, personality and talents."
14. In our view to the superior financial strength of the appellant No. 2 to that of the respondent alone cannot be a ground for appointing the appellant No. 2 as the guardian of the minor. Economic consideration is one of the factors apart from the material comfort a child requires care, understanding and attention at home and the learned Court while deciding the matter took care of those situations.
15. In this context the following passage from the American Jurisprudence may be aptly recalled-
"As a rule, in the selection of a guardian of a minor the best interest of the child is the paramount consideration, which even the rights of parents must some times yield. As a consequence, the Court may consider a parent's fitness for guardianship at the time of the hearing of the petition, and it may inquire into the financial condition of the applicant for letters of guardianship. But it is not to be inferred that statutory requirements are wholly to be ignored or that the Court should override the rights of one who is legally entitled to be appointed. If the one having a legal right to appointment is found to be a fit and proper person, he should not ordinarily be denied such right merely because, in the opinion of the Judge, the appointment of some other person would be more to the infant's advantage. Thus, the fact that the one seeking appointment as guardian for a minor has more property than the minor's father, or is more thrifty in accumulating property than the father, is no legal reason for depriving the father of the custody of the child........".
(American Jurisprudence 2nd Ed. Vol. 39 - S. 31)
16. In our view the learned Family Court reached its conclusion by giving reasons thereof. These reasons are based on evidence available on records which was properly evaluated in the light of the observation of the demeanour of the witnesses and in consultation with the minor. In the circumstances, we do not find any justifiable reason to disagree with the conclusion reached by the learned Trial Court. We accordingly uphold the judgment and order of the learned Family Court dated 7.12.1998 and the appellants are ordered to hand over Master Ankur to the respondent forthwith subject to completion of his annual examination. The appeal stands dismissed with costs.