Madhya Pradesh High Court
Puranlal Chhabra vs Madan Makhija on 12 June, 2023
Author: Sheel Nagu
Bench: Sheel Nagu, Hirdesh
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE HIRDESH
M.A. No.1556 of 2022
BETWEEN:-
1. PURANLAL CHHABRA S/O LATE SHRI
JHUMRAMAL CHHABRA, AGED ABOUT 60
YEARS, OCCUPATION: CANTEEN NIWASI
SINDHI CAMP SUBHASH NAGAR,
KISHANCHAND GALI SAGAR, JILA-
SAGAR, M.P. (MADHYA PRADESH)
2. SMT. JYOTI CHHABRA W/O SHRI
POORANLAL CHHABRA, AGED ABOUT 55
YEARS, OCCUPATION: GRAHADI R/O
SINDHI CAMP, SUBHASH NAGAR,
KISHANCHAND GALI, SAGAR, JILA -
SAGAR (M.P.) (MADHYA PRADESH)
3. JAIKUMAR CHHABRA S/O SHRI
POORANLAL CHHABRA, AGED ABOUT 22
YEARS, OCCUPATION: DHANDHA R/O
SHRI JHULELAL MANDIR KE PASS, SINDHI
CAMP, SUBHASH NAGAR, SAGAR, JILA -
SAGAR (M.P.) (MADHYA PRADESH)
4. SHALU MANGLANI W/O SHRI DEVIDAS
MANGLANI, AGED ABOUT 35 YEARS,
OCCUPATION: GRAHADI R/O D.P.
MEDICOZE, GOPAL HOTEL KE SAMANE,
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LALMATI, JABALPUR (M.P.) (MADHYA
PRADESH)
5. YOJNA CHHABRA W/O SHRI SONU SINDHI,
AGED ABOUT 36 YEARS, OCCUPATION:
GRAHADI R/O SONU PANNIWALA,
JHAMAN MIRCHI WALE KE PASS, NAYA
BAZAR, MADI NAGAR, AHMADABAD
(GUJRAT) (GUJARAT)
.....PETITIONERS
(BY SHRI ANAND CHAWLA - ADVOCATE)
AND
MADAN MAKHIJA S/O SHRI SHRICHAND
MAKHIJA, AGED ABOUT 41 YEARS,
OCCUPATION: PRAPERTY KA VYAVASAYA
NIWASI MADHAVNAGAR, KATNI, TEHSILI
VA JILA- KATNI, M.P. (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ANSHUMAN SINGH - ADVOCATE)
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Reserved on : 03.05.2023
Pronounced on : 12.06.2023
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This petition having been heard and reserved for orders,
coming on for pronouncement this day, Hon'ble Shri Justice Sheel
Nagu pronounced the following:
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ORDER
This miscellaneous appeal u/S 47 of Guardians and Wards Act, 1890, has been filed by maternal grand parents (Nana-Nani), maternal uncle (Mama) and two maternal aunts (Masi) challenging the legality and validity of ex-parte decree passed in favour of father of Ku. Krishna (date of birth- 17.07.2017) (for brevity 'Ward').
2. Learned counsel for the rival parties are heard finally.
3. The undisputed facts in the case reveal that respondent Madan Makhija solemnised marriage with late Nitu Makhija on 24.11.2012. Out of the wedlock, two daughters Yashashvi and Krishna were born on 17.10.2013 and 17.07.2017, respectively. During the birth of the second daughter Krishna, due to complications arising from cesarean operation, the mother late Nitu expired on 08.08.2017. The guardianship of the first daughter Yashashvi born on 17.10.2013, continues till date with the respondent father.
3.1 The dispute herein is only with regard to guardianship of second daughter Krishna who was born on 17.07.2017. It is alleged by appellants and not denied by the other side that the custody of the daughter was obtained by appellants when she was a few days old, and except for a few months in 2017/2018 the custody of Ku. Krishna was and is with the appellants No.1, 2 & 3. Ku. Krishna is presently about six years old.
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3.2 The Family Court proceeded ex-parte against appellants herein since despite lawful service of notice/summons on the appellants herein, there was no representation on their behalf before the Family Court. 3.3 The Family Court believing the averments made by respondent father to be true and following the time tested principle that natural guardian of a child upto the age of five years, in the absence of mother, is the father, the guardianship of Ku. Krishna was directed to be handed over to respondent father.
3.4 Assailing the aforesaid ex-parte judgment and decree, it is submitted on behalf of the appellants that respondent father has since remarried and thus welfare of the ward Ku. Krishna is with the appellants but not the father.
3.5 Though submissions and counter submissions have been made by counsel for the rival parties, but learned counsel for the respondent fairly submits that in the changed circumstances of the respondent having remarried and the Ward (Ku. Krishna) now being about six years old and welfare of the said Ward being taken care of by maternal grand parents and despite the second marriage of the respondent having not resulted in birth of any children, the respondent would be satisfied if he is merely afforded visitation rights qua Ku. Krishna.
4. In view of above fair submission of the learned counsel for respondent which is not opposed by learned counsel for appellants, this
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Court deems it appropriate to pass following order based on the consent of rival parties:
(i) The impugned judgment and decree dated 02.02.2022 passed in G.W. Case No.05/2021 by Principal Judge, Family Court, Katni is set aside;
(ii) The appellants herein are directed to afford visitation rights to the respondent father in the followings terms:
(a) Respondent-father shall be allowed to meet his daughter Ku. Krishna once every month for a period not more than two hours;
(b) The meeting shall be held at a neutral venue i.e. within campus of Family Court, Sagar;
(c) The date and time of the meeting shall be decided at the convenience of the rival parties on advance notice/intimation of 15 days;
(d) The meeting shall be held in the presence of any of the appellants or their nominee and a Counsellor who shall be nominated for the said purpose by the Principal District Judge, Sagar for supervising the meeting;
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(e) The respondent father shall not be allowed to take Ku.
Krishna out of the campus of the neutral venue i.e. Family Court, Sagar.
(f) The Counsellor shall submit a report of each meeting before the Principal District Judge, Sagar, who in turn shall forward a copy of the same to the Registry of this Court.
(g) The rival parties shall be at liberty to seek modification in directions qua visitation rights if cause and occasion arise.
5. With the aforesaid direction, this M.A. stands disposed of.
(SHEEL NAGU) (HIRDESH)
JUDGE JUDGE
YS