Bombay High Court
Shri Ramesh Tukaram Gadhwe, Sau. Kusum ... vs Sou. Sumanbai Wamanrao Gondkar And Smt. ... on 24 October, 2007
Equivalent citations: 2008(1)BOMCR634, 2008(2)MHLJ347, AIR 2008 (NOC) 1803 (BOM.) (AURANGABAD BENCH), 2008 (2) AIR BOM R 825, 2008 (3) AJHAR (NOC) 804 (BOM.) (AURANGABAD BENCH), 2008 A I H C 1978
Author: V.R. Kingaonkar
Bench: V.R. Kingaonkar
JUDGMENT V.R. Kingaonkar, J.
1. This appeal arises out of Judgment rendered by learned District Judge, Kopargaon, in proceedings under the Guardian and Wards Act. By the impugned Judgment, application filed by respondent No. 1 - Sou. Sumanbai for custody of minor - Sudarshan was granted with further direction to submit quarterly reports about his health to the Court.
2. The factual matrix depicts pathetic social aberrations of which the minor (Sudarshan) is the unfortunate victim. Subhash and Jyoti entered wedlock on 5.12.1996. They were blissed with the male child (Sudarshan) on 9.2.1998. The minor - Sudarshan @ Chhotu was hardly three years old when Subhash met with untimely death. He was afflicted with HIV and died of AIDS. The minor was admitted in an English medium school at Shirdi by his uncle and the grandmother i.e. applicant - Sumanbai. Unfortunately, Jyoti was also suffering from AIDS. She too died of AIDS during pendency of the application. She went to reside with her parents alongwith the minor in or about June 2004. Appellant Nos.1 to 3 are parents and brother of Jyoti.
3. Original applicant - Sumanbai urged for custody of the minor on the ground that mother of the minor was unfit to look after his welfare. She asserted that mother of the minor, viz., Jyoti was suffering from AIDS and was unable to properly maintain the minor child. She further asserted that there was no proper medical facility available in village Rahata where, the parents of Jyoti reside. She asserted that the maternal relatives of Jyoti were unable to provide medical help to minor - Sudarshan and his physical health would be endangered, if his custody would be continued with them because the minor also is afflicted with HIV. She asserted that she would be in a better position to provide good medical help to minor - Sudarshan if his custody is given to her. Hence, the application Under Section 17 of the Guardian and Wards Act was filed.
4. The application was resisted by mother of the minor (Jyoti) and the appellants who were joined as parties.
5. The learned District Judge came to the conclusion that original applicant (Sumanbai) is entitled to custody of the minor since it would be in the interest of the minor and for his welfare that his custody be with her. The application was accordingly granted.
6. Feeling aggrieved, the appellants preferred this appeal. They submitted that the minor was brought up by them and they were fit to look after his welfare. They submitted that the original applicant being stepmother of deceased Subhash, is not entitled to claim the custody. They further submitted that the original applicant did not allow Jyoti to stay with her in the marital home and, therefore, a suit (Spl. C.S. No. 29 of 2004) for partition and separate possession was filed by the minor and his mother - Jyoti against the original applicant and other members of the joint family of deceased Subhash. They alleged that the application was filed in order to frustrate the claim for partition to which the minor is entitled. They further contended that they are properly maintaining the minor and are looking after his welfare in an appropriate manner.
7. Mr. Kulkarni, learned Advocate appearing for the appellants would submit that deceased Jyoti was required to sue for partition as guardian of the minor. He would point out that the suit was filed on 31.7.2004 and thereafter, the custody application was moved on 24.8.2004. He contended that the custody application was moved by the original applicant with oblique intention to counterblast the suit. He argued that the minor - Sudarshan expressed desire to remain in the company of the appellants and was not ready to go to house of the original applicant, yet the application was granted without considering the wishes of the minor. He would submit that the wish of the minor cannot be ignored in view of Section 17(3) of the Guardian and Wards Act. He would further submit that the appellants have taken proper care to provide medical facility. He would submit that the change of custody would cause great turmoil at the emotional level of the minor. He contended that the impugned order is illegal and liable to be set aside. Per contra, Mr. Kale, learned Advocate appearing for the respondent, supports the impugned Judgment.
8. The material points for determination are as follows:
(i) Whether the original applicant is entitled to custody of the minor in order to secure welfare of the minor?
(ii) Whether the Court below committed patent error while ignoring the wishes of the minor - Sudarshan and wrongly ordered delivery of his custody to the original applicant?
I record negative findings on both the above points for the reasons discussed hereinafter.
9. The development, which occurred after filing of the application, may be noticed. Mother of the minor, viz., Jyoti died during pendency of the proceedings. Both the parents of the minor died of incurable disease, i.e. AIDS. As it can be gathered, Subhash was suffering from AIDS at the time of his marriage and, therefore, Jyoti also was the passive sufferer of AIDS. The evil legacy of AIDS is thrust upon the hapless and innocent child - Sudarshan. There is absolutely no dispute about the fact that he is in need of proper medical aid. Obviously, the paramount consideration for the present is as to who would be in a better position and fit person to provide proper medical facilities to the minor child. For, the innocent life cannot be allowed to suffer due to tussle between relatives of his parents. The considerations like his emotional attachment, better educational facility and upbringing are subsidiary as compared to the priority of making available proper medical facilities to him. I mean to say the other considerations are at the back seat whereas, the provision for medical treatment of the child is at the forefront while determining the question of custody. The contention of the appellants that the application is ill-motivated is not acceptable. The suit (Spl.C.S. No. 29 of 2004) for partition was filed by deceased Jyoti against the respondent and brother of deceased Subhash on 31.7.2004. The application was filed by the respondent on 24.8.2004 before the suit summons was served. The parties have not produced any record to show what was the stage of that suit. Suffice it to say that the original applicant/respondent could not have gathered knowledge about the said suit when she filed application for custody of the minor.
10. The application was filed mainly on two grounds. First, that the minor child was being given better education at Shirdi whereas, he was not being provided better education facility in the remote village where the appellants reside. Secondly, for the reason that the minor child is suffering from AIDS and was in need of expert medical treatment, which was being provided to him in well equipped hospitals at Shirdi, Ahmednagar and Shrirampur while he was residing with the applicant at Shirdi. The applicant subsequently asserted that the minor child was neglected at the hands of the appellants and was not being provided proper medical facility.
11. It bears out from the record that uncle of the minor child (Tanaji) runs a school at Shirdi. He also runs Nursing course and D.M.L.T. course. It is explicit from the record that minor - Sudarshan was admitted in English medium school at Shirdi. His educational progress was quite satisfactory. The progress cards and other documents would show that his educational progress was satisfactory in the English medium school at Shirdi. It is further manifest that the original applicant and her stepson, viz., Tanaji are well-off. They had incurred considerable expenditure to provide medical treatment of experts in the hospitals at Shirdi, Ahmednagar and Shrirampur to the minor - Sudharshan.
12. On behalf of the appellants, DW-Ramesh, filed affidavit (Exh.71). He is maternal grandfather of Sudarshan. His cross-examination reveals that he owns only 94 Ares land. He had borrowed loan against the said land, which he claims to have repaid for education to his son, by name, Sandeep. His version reveals that minor - Sudarshan was previously admitted in English medium school at Shirdi. He admits, unequivocally, that Sudarshan is presently admitted in Zilla Parishad Primary Marathi medium school at his village. The minor is required to attend Marathi medium school, which is at a distance of about 1 km. or more from the residential premises. It is an admitted fact that minor - Sudarshan is required to walk down the distance of 1 km to reach the school. The version of DW-Ramesh reveals that original applicant - Suman and her son Tanaji own and ossess a specious bungalow at Shirdi. He admits that when minor - Sudarshan was at Shirdi, while residing with the family members or original applicant - Suman, he used to commute to the school in a school bus. It is also an admitted fact that better facilities of education and medical treatment are available at Shirdi. He further admits that deceased Subhash and Jyoti and original applicant - Sumanbai used to provide medical treatment to the minor - Sudarshan of Dr.Chothani of Shrirampur. They also used to provide him medical treatment at Shirdi.
13. There is clear admission of DW-Ramesh to the effect that after death of Jyoti, he never took minor - Sudarshan to the medical practitioner of whose treatment was provided earlier. He admits that he used to provide treatment of Dr. Naikwade to the minor though said medical practioner is not Paediatrician or expert in treatment of AIDS. He admits that such expert medical practitioners are at Shirdi, Shrirampur and Ahmednagar but he had not taken the minor to any of such expert medical practitioner. He also admits that the present school of minor - Sudarshan is situated within the campus of a sugar factory where there is constant pollution due to molasses. He admits that uncle of the minor, viz., Tanaji is Principal of an institute and is owner of a car as well as a motorcycle. He further admits that after demise of the paternal grandfather of the minor, mutation is effected in the name of the latter (minor) in respect of the estate left by deceased Wamanrao. He admits that original applicant - Suman and the uncle of the minor, viz., Tanaji are capable of spending Rs. 5 lacs for welfare of the minor. He further admits that original applicant - Suman did not conceive any issue from deceased Wamanrao.
14. The evidence on record go to show that applicant - Suman has no issue and had, in fact, made better arrangements for providing appropriate educational facility to the minor when the minor child and deceased Jyoti were residing with her. The evidence on record further reveals that deceased Wamanrao bequeathed a part of his estate in favour of the minor grandson (Sudarshan). Another stepson of applicant - Suman is Tanaji who is engaged in his own work. Her daughter-in-law is also engaged in providing assistance to said Tanaji in the activities of the educational institution. Obviously, applicant - Suman is a loner. She is better person to take care of the minor child. There is nothing on record, in fact, to hold that she has nurtured any ill will or adverse interest against the minor. The applicant and her stepson - Tanaji are affluent. They can provide better medical treatment to minor - Sudarshan. It appears that the appellants failed to provide expert's medical treatment to minor - Sudarshan. It is only after interim directions issued by this Court that the minor was rushed to Government Hospital at Aurangabad for periodical treatment. The appellants have a large number of family members and small agricultural land. They are not financially viable to meet out the heavy medical expenditure, which may be required for treatment of minor - Sudarshan.
15. True, DW-Sudarshan expressed his wish to continue to live with the appellants. His age is about 10 years. He admitted that he was admitted in English medium school at Shirdi. He admitted, unequivocally, that he behaved as dictated by the maternal grandparents. In other words, his wish to remain with the appellants could be outcome of his tutoring by them. The learned District Judge observed that willingness of the minor should not be taken into consideration. The willingness of the minor is one of the factor to be considered under Section 17(3) of the Guardian and Wards Act. However, it is not the sole criteria. The welfare of the minor is the only criteria while determining the question of custody. The minors are gullible and are likely to express the thoughts and wishes of those who are in dominating position to tutor them. The influence of tutoring process is likely to impair the testimony of the minor. In the present case, minor Sudharshan candidly admits that he behaves as is directed by the maternal grandparents. The willingness of the minor cannot, therefore, be the significant factor in such a situation.
16. In the case of minor who has lost both parents, the nearest paternal kinsman would have the preference over the maternal one of Mayne's Hindu Law (7th A.D. P.273). The minor - Sudarshan is not a grown up child and is not yet capable to form an intelligent opinion as to the suitability of his guardian. There appears nothing illegal in the impugned order only because wishes of the minor are not considered. It is more probable that wishes of the appellants have been assiduously instilled into the minor.
17. In Jai Prakash and Anr. v. Shyam Sunder and Anr. , the Apex Court held that the orders relating to custody of children are by the 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. Mr. Kale would submit that the respondent is ready and willing to abide herself by any condition, which may be set out by this Court. He would further submit that the order of custody may be clearly made interlocutory with a rider to change the custody if welfare of the minor is not looked after by the respondent. He seeks to rely on Mrs. Elizabeth v. Arvand M. Dinshaw and Anr. and Smt. Shakuntala T. Sonawane v. Shri Narendra A. Khaire 2003 (2) All MR 861. There is consistent view of the Court that welfare of the minor is of paramount consideration while determining question of the custody. As stated before, in the case in hand, the welfare of minor - Sudarshan is dependent on provision for expert medical treatment. The minor cannot be allowed to be neglected on this score. The appellants may be willing to ensure proper medical treatment to minor - Sudarshan but they could not provide such treatment earlier and having regard to paucity of financial resources, they may not be able to do so in future.
18. The appointment of guardian and custody of minor are two different aspects. Mr. Kale, learned Advocate appearing for the respondent would submit that the original applicant is more interested in the custody of the child in order to provide him appropriate medical treatment. He would submit that the original applicant is not at all interested in frustrating the rights of the minor and the application is not moved to take away force from the suit for partition (Spl.C.S. No. 29 of 2004). He also points out from the mutation entries that deceased Wamanrao has bequeathed a part of the property in favour of the minor - Sudarshan. One cannot be oblivious of the fact that during her last days, Jyoti had taken shelter in the house of the appellants. She had filed suit as guardian of the minor. It is held in T. Kumaraswami v. Rajammal 1957 Madras 563 1957 Madras 563 that there is appreciable difference in custody and guardianship, which is a more comprehensive and more valuable right than mere custody.
In the given case, custody of the children was given to the mother without removal of father from guardianship. That was found to be in the best interest of the children. The Division Bench of Madras High Court heavily relied on Saraswathi Bai v. Shripad AIR 1941 Bom. 103 in support of such decision.
19. There is subtle distinction between expression "Custody" and "Guardianship". The concept of custody is related to physical control over a person or property. The concept of guardianship is akin to trusteeship. A guardian is trustee in relation to the person of whom he is so appointed. The position of guardian is more onerous than of mere custodian. The custody may be for short duration and for specific purpose. The custody of the minor, in the present case, may be handed over to the respondent with an object to ensure proper medical care and treatment. The appellant No. 1 can be simultaneously appointed as guardian to ensure that the rights of the minor in relation to property are not frustrated due to change in the custody.
20. Considering the peculiar circumstances of the case in hand, I deem it proper to hold that the impugned order is quite sustainable to the extent of direction to handover custody of minor - Sudarshan to the original applicant/respondent. The learned District Judge, however, did not appoint anyone as guardian of the minor-Sudarshan. It would be in the best interest of minor - Sudarshan to handover his custody to the respondent and to appoint appellant No. 1 - Ramesh as his guardian so that the proceedings of the suit (Spl. C.S. No. 29 of 2004) would not be frustrated. The guardian will be in a position to monitor the medical welfare of the minor - Sudarshan. The guardian can also have access to the minor without any impediment. A stringent condition may be imposed in order to ensure that proper medical treatment is made available to the minor in future after delivery of the custody to the respondent. The impugned order needs appropriate modification in this behalf.
21. In the result, the appeal deserves to be dismissed. The appellants are directed to handover custody of the minor - Sudarshan to the respondent - Sumanbai within two (2) weeks in presence of a Court Officer as may be appointed by the learned Civil Judge, Rahata, in the premises of the Civil Court at Rahata. The appellants to inform date of delivery of the child to the respondent and take the child before the concerned Officer, may be Assistant Superintendent or Nazir of the Civil Court, on such date and handover the custody. The intimation shall be given by registered post. If the custody is not delivered within two weeks, the respondent will be entitled to obtain the custody through process of law and if need be with Police aid. The respondent shall invest amount of Rs. 1 lac in any nationalised Bank in name of the minor (Sudarshan) and deposit the original F.D. receipt with the Nazir of the Court of District Judge, Kopargaon. The respondent shall submit monthly medical reports of the medical treatment provided to the minor to the Court of District Judge, Kopargaon by end of each month. The appellant No. 1 - Ramesh is appointed as guardian of the minor - Sudarshan. He will have access to the minor - Sudarshan on each Sunday between 10:00 a.m. to 5:00 p.m. and may continue with the suit proceedings but shall not transfer any property of the minor or deal with the same in any manner. He may be permitted to peruse the medical reports submitted by the respondent to the Court of learned District Judge, Kopargaon. If the respondent would commit any default, or if it is found that there is negligence in providing medical treatment to the minor, then the learned District Judge, Kopargaon may reconsider the question of custody and may pass suitable orders for the custody of the minor. He may also pass suitable orders to provide medical treatment to the minor by utilizing funds out of the fixed deposit mentioned above.
With these clarifications and modification, the appeal is dismissed. No costs.