Gujarat High Court
Ruchirkumar Gajanandbhai Suthar And 2 ... vs Amitaben D/O Hasmukhlal Nanchanddas ... on 5 December, 2006
JUDGMENT K.M. Mehta, J.
Page 0261
1. Ruchirkumar Gajanandbhai Suthar, petitioner No. 1 is the husband of the respondent; Gajanandbhai Suthar, petitioner No. 2 is father of petitioner No. 1; Savitaben Gajanandbhai, petitioner No. 3 is mother of petitioner No. 1. They are all referred as petitioners. The petitioners, have filed this Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC' for the sake of convenience) with a prayer that this Court may allow the Civil Revision Application by quashing and setting aside the order below Exh. 23 in Guardian Application No. 16 of 2006 dated 11.10.2006. The learned Judge has, by impugned judgment, allowed the application filed by Amitaben, respondent herein, under Section 6 of the Hindu Minority and Guardianship Act (hereinafter referred to as 'the Act") for custody of minor child Hemali. Page 0262 The learned Judge has held that the respondent Amitaben be treated as guardian of the minor child Hemali. The learned Judge has further directed opponent No. 1 petitioner-husband to hand over the minor child Hemali personally to Amitaben, mother of the child, by 15.10.2006 at the residence of the applicant - respondent herein at Vadali, Behind Kachchhi Boarding, Taluka Vadali, District Sabarkantha .
2. The facts giving rise to this petition are as under:
3. The marriage between petitioner No. 1 and the respondent Amitaben was solemnized on 18.2.2002.
4. It is the case of the respondent wife that soon after the marriage, petitioner No. 1 i.e. husband of the respondent was causing a lot of harassment, torture and humiliation to the respondent wife. He was severely beating the respondent on trivial issues. It is also the case of the respondent wife that petitioner No. 1 was demanding money frequently from the respondent and whenever his demand was not satisfied, he used to cause violate attacks on the respondent. It is the case of the respondent wife that petitioner No. 1 was beating up the respondent wife even while she was conducting her class at the school. It is also the case of the respondent that petitioner No. 1 had also beaten her during the seventh month of her pregnancy.
5. A female child was born to the respondent wife on 7.7.2005 out of the wedlock with petitioner No. 1 and the child was named as 'Hemali'.
6. The respondent had taken Insurance Policy on 21.10.2005 of her daughter wherein she had given her name behind the name of her daughter only with a view to get benefit under the Income-tax Act to claim deduction and/or exemption under the taxable income. It is the case of the respondent wife that she had kept the name of petitioner No. 1 i.e. husband as the nominee in the said policy and she has given address of matrimonial home on the policy. She had also given the name of her husband as the nominee in her Provident Fund Account.
7. As soon as the petitioner came to know about the fact, the petitioner No. 1 had made a big issue for keeping the name of the respondent behind the name of her minor Hemali in the Insurance policy. Petitioner No. 1 had as usual severely beaten the respondent and had mercilessly driven away her having snatched away the minor child Hemali from the respondent. It is the case of the respondent that she was neither allowed to enter the house nor allowed to meet her daughter Hemali. The respondent had tried her best to see Hemali but she was physically prevented and seriously threatened by the petitioners. It is the case of the respondent that initially the husband has addressed a notice dated 28.10.2005 in which it was alleged that the respondent wife has left matrimonial home from 22.10.2005 and though the husband called the wife but the wife did not return and left behind the small baby who was three months old at that time. Before this notice was received by the wife, the wife has also addressed a letter/notice dated 29.10.2005 to the husband in which it was stated that the husband is imposing physical and mental cruelty on the wife and the husband has snatched away the small baby girl of three months old and driven away the wife from the house without taking anything from the matrimonial home.
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8. The husband thereafter addressed a notice dated 9.11.2005 to the wife and denied the contentions raised in the notice dated 29.10.2005. In that the husband has also mentioned the earlier notice dated 28.10.2005 addressed by the husband to the wife (the same is now produced on the record of the case).
9. The respondent had replied to the notice of petitioner on 14.11.2005 and called upon the petitioner to reconcile and give custody of the minor Hemali. However, there was no response to the notices addressed by the respondent.
10. Petitioner No. 1 filed suit for divorce against the respondent on the ground of desertion somewhere in October, 2005 which is pending.
11. It is the case of the respondent that in order to prevent the access of the respondent to minor Hemali, the family of the petitioner had shifted from Vadali to Himatnagar town. The respondent and her family tried their level best by seeking intervention of caste people and relatives to get custody of minor Hemali and also for reconciliation with petitioner No. 1. However, the petitioners had flatly refused either to reconcile or to give custody of minor Hemali. All efforts of the respondent were in vain.
12. When all efforts had failed, the respondent had initiated proceedings on 23.5.2006 for search warrant under Section 97 of the Code of Criminal Procedure by way of C.M.A. No. 91 of 2006 before the learned Judicial Magistrate First Class, Idar to get custody of minor Hemali, as a last resort. The said matter was heard by the learned J.M.F.C. and by his judgment and order dated 25.5.2006 the aforesaid application was rejected by the learned Judge.
13. Being aggrieved and dissatisfied with the same, the respondent had preferred Criminal Revision Application No. 69 of 2006 before the learned Additional Sessions Judge, 7th Fast Track Court, Himatnagar, camp at Idar, under Section 397 of the Code of Criminal Procedure. The learned Judge heard the matter and by his judgment dated 29.6.2006 the aforesaid Revision Application was rejected. However, the learned Judge held that the finding of the learned Judicial Magistrate First Class on the question of welfare of the child and the procedure adopted by him to decide mental attachment of the child was without any jurisdiction and beyond the scope of Section 97 of the Code of Criminal Procedure.
14. It is the case of the respondent that thereafter the respondent preferred application for custody of the child under the Guardians and Wards Act before the District Court, Sabarkantha at Himatnagar. The learned District Judge by his order dated 11.10.2006 allowed the application and appointed the respondent as guardian of minor Hemali and directed the petitioners to handover the custody of minor Hemali to the respondent by 15.10.2006. However, the Court has allowed petitioner No. 1 to visit the child.
15. Being aggrieved and dissatisfied with the said judgment and order dated 11.10.2006, the petitioners have filed the present Civil Revision Application before this Court on 7.11.2006. When this matter reached hearing before this Court, this Court passed order on 9.11.2006 Page 0264 and thereafter on 28.11.2006 this Court passed further order. Thereafter, the matter was heard in the chamber. The Court made sincere efforts to reconciliate the parties on 5.12.2006 and in order to amicably settle the matter, it was kept on 6.12.2006 and thereafter on 7.12.2006. Though the judgments were cited on the said day, due to paucity of time the matter was kept on 8.12.2006. As the Court was busy with admission matter, part of the judgment was dictated.
16. On behalf of the petitioners I have heard Mr. Dagli, learned advocate. I have heard Mr. J.V. Japee, learned advocate for the respondent. He has supported the reasoning of the learned trial Judge.
CONTENTION OF MR. DAGLI, LD. ADVOCATE ON BEHALF OF THE PETITIONERS:
17. Mr. Dagli, learned advocate for the petitioners, has invited my attention to the provisions of Hindu Minority and Guardianship Act, 1956. Section 1 of the said Act provides application of the Act. Section 4 of the Act provides for definition. Section 4(b) provides for definition of 'guardian'. Section 4(c) provides for definition of 'natural guardian'. Section 5 of the Act provides for overriding effect of the Act. Section 6 of the Act provides for natural guardians of a Hindu minor. Section 6 of the Hindu Minority and Guardianship Act reads as under:
Section 6 Natural guardians of a Hindu minor - The natural guardians 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.
18. Section 13 of the Hindu Minority and Guardianship Act provides for welfare of minor to be paramount consideration which reads as under:
Section 13(1) - In the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the Court is of opinion that his or her guardianship will not be for the welfare of the minor.
19. In view of the above provisions of the Act, the learned Counsel for the petitioners has stated that the learned Judge has not properly considered the facts of the case and also the provisions of the Hindu Minority and Guardianship Act. He has stated that right from October, 2005 when the respondent wife left the matrimonial home the minor child was under the care and custody of petitioner No. 1 and his mother.
20. It is the case of the petitioner that right from October, 2005 till today the family of the petitioner husband has taken the care of the minor and she has been well maintained and proper care, mental development feelings, love and affection have also been conferred by the family members of the petitioner husband.
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21. The learned Counsel for the petitioner submitted that when the minor was three months old, her responsibility was required to be taken by the mother. However, according to petitioner No. 1, the respondent wife has left the house and not even on a single occasion any attempt was made on the part of the respondent to even come to the house of the petitioners or to enquire about the welfare of the child.
22. It was also submitted by the learned Counsel for the petitioner that the respondent wife is also serving as teacher in the school and if the custody of the minor child is given to her, she will not be able to give proper care and attention to the minor child Hemali.
23. It was further submitted that the entire family of the petitioners including all the three petitioners as well as brothers of petitioner No. 2, Bhabis, grandmother, have not only taken proper care but a care which deserves to a child aged about 3 months and one of the family members is taking care of minor Hemali. It is submitted that there are in all 21 members of the family who are residing at Himatnagar. It is also submitted that petitioner No. 1 who is also having his own registration of Contract and as an experimental basis he has joined one project at Dahod. This was only on experience basis and from February-March, 2007, he proposes to join with his father who is an approved Government Contractor. Regarding the evidence, the petitioner has produced the income-tax return filed by the petitioner before the Income-tax Authority for the assessment year 2005-2006. It is submitted that as per the income-tax returns the petitioner has sound financial position. It is submitted that petitioner No. 2 who has built up his own reputation in the district of Sabarkantha having his settled business for 30 years. The other brothers of petitioner No. 2 and uncle of petitioner No. 1 are also contractors and on account of their own reputation and image in the society the petitioners have their own identity.
24. It has been submitted that the petitioners have successfully worked for the Government in the past so many years and even otherwise as all the family members are joint family also have their own status and respect in the society which knows for their nobleness and for their business reputation.
25. It was further submitted that it is no doubt true that mother of petitioner No. 1 serving as teacher but in order to look after the child and to give more care and attention she may give resignation. It was also submitted that the petitioner who is father of minor child proposes to leave his job from February when the term is over and then join his father even though he has obtained offer of a reputed Company in Himatnagar.
26. It is further submitted that the petitioner has shown that the minor child can be properly taken care of and he will be able to take care the well- being of the minor child.
27. The learned Counsel has also relied on the judgment of the Hon'ble Apex Court in the case of Rosy Jacob v. Jacob A. Chakramakkal where the Hon'ble Apex Court has held that paramount Page 0266 consideration governing the custody of the children is the welfare of the children and not the right of their parents.
28. The learned Counsel has relied on the judgment of the Hon'ble Supreme Court in the case of Surinder Kaur v. Harbax Singh reported in 1984 SC 1224 particularly para 9 on page 1226 which reads as follows:
Section 6 of the Hindu Minority and Guardianship Act, 1956, constitutes the father as the natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. As the matters are presented to us today, the boy, from his own point of view, ought to be in the custody of the mother.
29. It is submitted that on the above facts, the learned Judge has not properly considered the same and therefore this Court may examine matter and after examining the matter this Court may pass appropriate orders. Mr. Dagli, learned advocate, has relied on the decision in the case of Vasudevan v. R. Viswalakshmi particularly paragraph No. 15 and then applied for the custody of the child, the Kerala High Court held on the evidence that the child was well looked after by the father and the grandmother and that custody of the minor child should not be with the mother and the child should stay with the father.
30. The learned Counsel has relied on the decision in the case of Vasudevan v. Viswalakshmi (supra) where at para 18 on page 405 the Court has observed as under:
Clause (a) of Section 6 does not confer any such absolute right to the custody of a minor child who has not completed the age of five years to be always with the mother. The proviso is very guarded and it says, shall ordinarily be with the mother. Therefore, the Court has got a duty to see whether the custody of such a minor child should be with the mother. No doubt, the proviso proceeds on the basis that the mother should ordinarily have the custody of the minor child. The question in this case is whether the husband has established satisfactorily any reasons for holding that the custody of the minor should not be with the mother but with the father.
CONTENTION OF MR J.V. JAPEE ON BEHALF OF RESPONDENT WIFE I.E. MOTHER OF THE CHILD:
31. As against this, Mr. J.V. Japee, learned advocate for the respondent has tried to support the order of the learned Judge. He has relied on the affidavit in sur-rejoinder of the respondent. He has made the following submissions:
31.1 The Civil Revision Application filed by the petitioners contains totally false, frivolous and baseless allegations which are far from truth. The petition contains totally distorted version of facts.
31.2 There is no jurisdictional error or irregularity in exercise of jurisdiction by the Court below which calls for any interference by this Court in the revisional jurisdiction under Section 115 of th Code of Civil Procedure.
Page 0267 31.3 The allegations made by the petitioners against the conduct and approach of the respondent and her family members are baseless and far from truth. The allegations that the respondent has not cared for minor Hemali having left the house in October, 2005 is totally false and baseless.
31.4 In fact, the respondent was driven out of the house by picking quarrel on trivial issue having snatched away the minor child Hemali from her and thereafter she was never allowed to meet child Hemali despite her frequent attempts. Not only that but she was physically prevented from meeting her minor daughter Hemali and was also given serious threats. The respondent had also sought intervention of the caste members and relatives for reconciliation and for getting custody of the child but the petitioners had flatly refused either to reconcile or to give custody of child.
31.5 In order to further prevent any access of the respondent to child Hemali the petitioners had shifted from Vadali to Himatnagar. Respondent did not take immediate step to approach the Court of law in view of the fact that there are interconnected relations and common relatives between the families of the petitioners and the respondent.
31.6 However, when all the efforts for reconciliation and for getting custody of the minor child Hemali had failed, the respondent as a last resort knocked the door of Court of law for initiating the proceedings for search warrant wherein the respondent could not succeed.
31.7 Ultimately, she had filed proceedings to get custody of child under the Guardians and Wards Act before the District Court, Sabarkantha at Himatnagar wherein order was passed in her favour. Thus, the respondent has made continuous efforts and struggled to get custody of the child after she was driven away from the matrimonial home in October, 2005. Therefore, the allegation that the respondent did not care for the child after leaving the minor child is totally false and without an iota of truth.
32. Several other allegations are made which are not having semblance of truth. So far as the LIC policy is concerned, child Hemali being minor, she had given her name behind the name of her daughter only with a view to get benefit under the Income-tax Act to claim deduction and / or exemption under the taxable income. However, she had kept the name of the petitioner No. 1 i.e husband as the nominee in the said policy and she has also given address of matrimonial home on the policy. Therefore, there was no evil intention on her part in taking policy of the child Hemali and giving her name behind the name of the child. It is pertinent to note that she had also given the name of her husband as the nominee in her provident fund account as her nominee. It is submitted that on the trivial issue of trifle matter of LIC policy, the petitioner No. 1 had picked up huge quarrel and had driven away the respondent having snatched away the child Hemali from her.
33. It is the case of the petitioner that the petitioner No. 1 had given first notice on date 28.10.2005 to call the respondent calling upon her to come back to the matrimonial home. It is pertinent to note that even as per Page 0268 the say of the petitioners, the houses of the petitioners and the respondent are adjoining to each other and if that is so, the petitioner No. 1 was not required to give legal notice to call the respondent back. On the contrary, to show the right spirit, he could have called the respondent back having approached her but legal notice is given by the petitioner No. 1 dated 28.10.2005 only to lay down foundation for initiating the proceedings of divorce on the ground of desertion and in fact, ultimately suit for divorce has been filed on the ground of desertion. Therefore, the petitioners never wanted to call the respondent back but they were making attempt on paper as an eye-wash that they were trying to reconcile with the respondent. In fact, they neither wanted to reconcile with the respondent nor they wanted to give custody of the child Hemali.
34. The petitioners have made several false statements in the petition. They had stated that the petitioners and four brothers of the respondent are residing together in joint family under one roof. It is submitted that when the respondent had in affidavit in reply stated that they were not staying in the same house, the petitioners had clarified in their rejoinder that they were residing in different bungalows in the same plot. Therefore, false statements are made on oath in the petition only to mislead and misdirect this Court.
35. The learned Counsel for the respondent has relied on the following decisions:
35.1. Smt. Manju Tiwari v. Dr. Rajendra Tiwari and Anr. . In that case the Hon'ble Apex Court has directed custody of child to be given to mother as the child was less than five years of age with liberty to father to visit the child during week ends.
35.2. Kumar V. Jahgirdar v. Chethana Ramatheertha . In that case the Hon'ble Apex Court has ordered custody of child to mother with visitation rights granted to the natural father. The learned Counsel has relied on paras 16, 17 and 18 of the said judgment.
35.3. Poonam Datta v. Kirshanlal Datta and Ors. . In that case the Hon'ble Supreme Court directed that minor child will live with his mother (para 7).
35.4. Rajesh K. Gupta v. Ram Gopal Agarwala and Ors. . In that case the order granting custody of minor child to her mother is not interfered with by the Hon'ble Supreme Court.
35.5. Smt. Mohini v. Virender Kumar . In that case the Hon'ble Apex Court has held that welfare of minor to be paramount consideration and mother declared entitled to guardianship and custody of a child.
Page 0269 35.6. Mrs. Wlizabeth Dinshaw v. Arvand M. Dinshaw and Anr. . In the said case the Hon'ble Supreme Court held that interest and welfare of minor is predominant criterion. Welfare of child must be taken into consideration and on the sole and predominant criterion of what would be best serve the interest and welfare of the minor (para 8).
35.7. Jai Prakash Khadria and Anr. v. Shyam Sunder Agarwalla and Anr. .
36. The learned Counsel has relied on the Division Bench Judgment of this Court in the case of Surabhai Ravikumar Minawala v. State of Gujarat and Ors. para 7, 7.1, 7.3 and para 7.4. The Division Bench has held in para 7.6 on page 2717 as under:
The concern felt by the Court with regard to child's interest and welfare, they being of paramount importance, is common in all these decisions and we have kept in view exactly the same and nothing else. Thus, when we hold, following the said proposition of law, that the child's welfare will remain in better way with the petitioner. We have all the authority to direct that the custody will remain with the petitioner. We, therefore, now direct that by way of interim arrangement the custody of the child Kiran is already given to the petitioner and now it will remain with her.
FINDINGS AND CONCLUSION:
37. I have considered the rival submissions of the parties. It is no doubt true that though the husband has filed divorce petition before the competent Court the same is still not decided but the fact remains that both father and mother are staying separately. It appears that the custody of the child is with father. However, the mother has stated that the custody of the minor may be given to her.
37.1 The respondent wife has mainly relied on Section 6 of the Hindu Minority and Guardianship Act which provides natural guardians of a Hindu minor in respect of the minor's person as well as in respect of the minor's property are 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. The learned Counsel for the respondent has submitted that in the light of Section 6 of the Act as the age of the child is one and half year today, the custody of the child may be given to the natural guardian i.e. the respondent.
38. I have considered the rival contentions of the parties and also the authorities cited by both the parties and Section 6 as well as Section 13 of the Hindu Minority and Guardianship Act, 1956 which I have set out earlier. I have given anxious consideration in this regard.
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39. I also rely on the judgment of the Hon'ble Supreme Court in the case of Ms. Gita Hariharan v. Reserve Bank of India where the Hon'ble Supreme Court has held that if the father and mother are staying separately and the minor daughter was under the care and protection of her mother (though her father was alive) the Hon'ble Supreme Court held that the mother should be considered as the natural guardian of the minor girl. In all situations where the father is not in actual charge of the affairs of the minor either because of his indifference or because of an agreement between him and the mother of the minor and the minor is in the exclusive care and custody of the mother or the father for any other reason is unable to take care of the minor because of his physical and or mental incapacity, the mother can act as a natural guardian of the minor and all her action would be valid even during the life time of the father, who would be deemed to be 'absent' for the purpose of Section 6(a) of the act.
40. In the present case the minor child Hemali is staying at Himatnagar whereas the father is staying at Dahod for his work. Even though the father is alive, the father is not able to take care of the child. Section 6 gives a legislative mandate that in case of a boy or 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. Section 6 and Section 13 of the Hindu Minority and Guardianship Act will have to be interpreted harmoniously and the legislative mandate is that the minor's interest has a paramount consideration. The welfare of the minor child is the sole consideration in considering the facts of the case.
41. This Court has to consider Section 13 of the Act which provides welfare of minor to be paramount consideration. The word 'welfare' has the widest amplitude. It is to be understood in its widest sense so as to cover the material and physical well being, education, health, happiness and moral welfare of the child.
42. This Court has considered the judgment of the Hon'ble Supreme Court in the case of Surinder Kaur v. Harbax Singh . Provision of Section 6 cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. The prime consideration in the matter relating to custody of a child less than five years of age is the welfare of the child. It is the welfare of the children and not the right of their parents, which will decide the issue of custody.
43. Welfare of minor child how to be ascertained? Lindley, L.J. In Re v. Megrath (Infants) 1893 (1) Ch. 143, 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 Page 0271 sense. The moral and religious welfare must be considered as well as its physical well being. Nor can ties of a affection be disregarded'.
`Welfare' is an all encompashing word which includes material welfare, both in the sense of adequacy of resources to provide a pleasant home and 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, as pointed out by the Supreme Court in Dhanwanti Joshi v. Madhav are the stability and the security, the loving 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. Therefore, it would be erroneous to give sole or more importance to the superior financial capacity of a party.
(Hindu Law by Acharya Shuklendra - Minority and Guardianship p. 921) 43.1 For arriving at the conclusion regarding custody of the child the Court has to base its decision on cogent and convincing evidence. I have considered the evidence led by both mother and father as to suitability of either of the parents being the better custodian of the child for its welfare and well-being.
43.2 In this case the female child is below five years, custody of child should ordinarily be with the mother unless the welfare of the child demands otherwise. Such a child needs most a tender affection, the caressing hand and the company of his natural mother. This Court is of the view that neither the father nor his female relations, however, close, well-meaning and affectionate towards the minor, can appropriately serve as a proper substitute for the minor's natural mother. In this connection the mother is rightly endowed with a preferential claim in regard to the child's custody. The interest of the minor will be well served by keeping him with his mother.
44. I have considered the facts set out by the learned Counsel for the petitioners and the contention raised therein and various judgments cited by the learned Counsel for the petitioners. I have also considered the rival submissions made by the learned Counsel for the respondent and the authorities cited by the learned Counsel for the respondent. I have considered provisions of the Hindu Minority and Guardianship Act particularly Sections 6 and 13 of the Act. From the above, the following facts emerge from the record of the case:
(i) the minor child is about 17/18 months old today
(ii) the minor child was under the custody of mother right from July to October, 2005 first at her parents house and thereafter her father-in-laws house. Because of the incident occurred and from the record it appears that this Court prima facie of the opinion that the petitioner Page 0272 husband has tried to give threat to the respondent and ultimately the respondent wife has to leave the house under compulsion. She has not left the house on her own volition or her desire.
(iii) It is no doubt true that thereafter from October, 2005 till today the child is in the custody of the father and his relatives.
(iv) In view of the facts set out herein when the father is staying away and grandmother who is looking after the child is also serving in school. On the other hand the mother of the child is deprived of the child and in view of Sections 6 and 13 of the Hindu Minority and Guardianship Act and the decisions cited before this Court particularly the decisions of the Hon'ble Supreme Court, this Court comes to the conclusion that if the custody of the minor child be handed over to the mother from the custody of father, the same will be in the interest of welfare of the minor child particularly in view of Section 6(a) and Section 13 of the Act and the decisions which I have referred to above.
(v) The respondent wife belongs to highly educated and cultured family. Her father is serving as a senior teacher in Sheth C.J. High School, Vadali, since last 33 years. Her brother is a Mechanical Engineer engaged in his own business. Her uncle and aunt are also serving as teachers in the same school where the respondent is serving. They are having two residential houses at Vadali and other properties in Gandhinagar. The family of the respondent is financially sound and therefore the future of Hemali is bright and secured in the family of the respondent.
(vi) The child Hemali will get love and affection of mother which is of prime importance for the child at the tender age.
(vii) The child Hemali will get best care, protection, nourishment and upbringing from her mother. This Court is of the view that looking to the age of the child mother is the best person in the world to take care of the child and there is no alternative or substitute of mother so far as child is concerned at this stage.
(viii) The mother of child Hemali is serving in the school at Vadali and her timing in the school is 10.50 a.m. to 5.00 p.m. So the remaining period the child can be taken care of by the mother. In the absence of mother, i.e. the respondent, the mother of the respondent Vimalaben, aged about 52 years will also be able to look-after the child. The sister-in-law of the respondent Palakben is housewife and also residing in the same house. Therefore, the child will get the care and protection of three females in the house.
(ix) It may be noted that the father will have the right to visit the minor child either on Saturday or Sunday or any other public holidays after prior intimation to the mother and her relatives.
(x) As soon as the child attains the age of five years it will be open for the parties to approach the Court for passing appropriate orders because this Court has passed the order in view of Section 6(a) read with Section 13 of the Hindu Minority and Guardianship Act.
(xi) In view of the same it may be noted that I have considered order of the learned trial Judge and I find that the learned Judge has taken into Page 0273 consideration the welfare of the child as well as provisions of Section 6(a) of the Act Hindu Minority and Guardianship Act and the earlier proceedings under Section 97 of the Cr.P.C. have no relevance. The relevant provisions of the Hindu Minority and Guardianship Act have been taken into consideration by the learned trial Judge.
44.A All these circumstances clearly indicate that if the custody of the child is given to the mother, it will be in the best interest and welfare of the child.
45. I have considered the facts of the case. I have considered the provisions of Section 6 and 13 of the Act. I have also considered various judgments of the Hon'ble Apex Court and this Court also. I have also considered the rival submissions and the various circumstances of the case and the factors which are in favour of having the custody of minor child to be given to the mother.
45.1 In view of these facts, this Court is of the view that the custody of the child be given to the mother. In this behalf I have also considered the judgment of the learned trial Judge where he has also given the custody of minor child to the mother. The learned Counsel for the petitioners has not pointed out any grounds by which the reasoning of the learned trial Judge can be destroyed. The learned Counsel for the petitioner has not been able to successfully assail the findings of the learned trial Judge. The learned trial Judge has given very cogent and convincing reasons to deliver the custody of minor child to mother. I do not see any reason to interfere with the said finding of the learned trial Judge. However, I have given additional reasons and also considered the judgment of the Hon'ble Supreme Court and Sections 6 and 13 of the Act. In view of the same, this Revision Application is rejected. The stay granted by this Court on 28.11.2006 is vacated. The petitioner husband is directed to give custody of minor child Hemali to the respondent wife forthwith.
46. After pronouncing the aforesaid order, Mr. Dagli prays that this order directing to handover the custody of minor child Hemali to the mother be stayed for some time because the party desires to approach higher forum. Mr. J.V. Japee, learned advocate for the respondents strongly objects to the said prayer. He states that this is regarding the custody of the child and the order has to be implemented and he states that his client will undertake that if the Hon'ble Supreme Court passes any order his client will prepare to abide by any order which may be passed by the Hon'ble Supreme Court.
47. In view of the peculiar facts and circumstances of the case, when the party desires to approach the Hon'ble Supreme Court, time is granted upto 5.1.2007. Mr. Dagli, learned advocate, undertakes before this Court that in case the party fails to obtain any order from the Hon'ble Supreme Court, his client will hand over the custody of the minor to the mother by 11.1.2007.