Rajeev Kumar Shrivastava, J.
Appellants has preferred this Misc. Appeal under Section 47(a) of the Guardians and Wards Act, 1890 (for brevity, the 'Act') assailing the order dated 22.7.2019 passed by First Additional District Judge, Dabra, District Gwalior in MJC No. 07/2017 (Aditya Trivedi vs. Ramkumar Swami and another), whereby the application preferred by the respondent under Section 7 of the Act for custody of his daughter has been allowed.
2. Brief facts of the case are that on 30.4.2012 marriage was solemnized between respondent and daughter of appellants, namely, Smt. Bharti and out of their wedlock girl Divya was born. It is pertinent to mention that at the time of filing of application under Section 7 of the Act, Divya was aged about four years. It is further alleged that soon after the marriage of the respondent, Smt. Bharti committed suicide on 2.10.2013. A false case was registered against the respondent for the offences under Sections 498-A and 304-B of IPC and under the garb of the false FIR the appellants took daughter Divya into their custody. Thereafter the respondent has been acquitted by the trial Court in connection with the aforesaid offences and appeal against the judgment of acquittal has also been dismissed. Thus, the respondent being natural guardian of daughter Divya moved an application under Section 7 of the Act for custody of his daughter. Reply of the application has been filed by the appellants denying the averments pleaded in the application. The First Additional District Judge, Dabra framed issues and after recording evidence of the parties directed vide impugned order to the appellants to hand over forthwith the custody of daughter Divya to the respondent. Feeling aggrieved by the said order, the appellants have preferred the instant appeal.
3. Learned counsel for the appellants attacks the impugned order on the ground that the order is illegal, without jurisdiction, arbitrary and contrary to the settled principles of law. The Court below has ignored the fact that daughter Divya was under her grandparent's upbringing since when she was 6 months old. The Court below has failed to consider that paramount consideration is welfare of child and the respondent is not able to provide good education, atmosphere and other facilities to the daughter and he has not made any attempt during the last five years to seek custody of his daughter. Hence, prayed for setting aside the impugned No. 4269/2019 order.
4. Per Contra, learned counsel for the respondent opposed the submissions put forth by learned counsel for the appellants and supported the impugned order.
5. Heard learned counsel for the rival parties and perused the record.
6. Sections 7 of the Act reads as under:-
“7. Power of the Court to make order as to guardianship.-- (1) where the Court is satisfied that it is for the welfare of a minor that an order should be made--
(a) appointing a guardian of his person or property, or both, or
(b) declaring a person to be such a guardian the Court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.
(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.”
7. The following matters are required to be considered by the Court in appointing guardian:-
(i) In appointing or declaring 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.
(ii) In considering what will be the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of the deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(iii) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
8. On perusal of the relevant provisions of the Act of 1890 what clearly emerges is that the matter relating to the custody of a minor child is not only an overwhelming but the paramount consideration that must weigh with the court when examining the "welfare of the minor" and the said term must be given effect to in its broadest sense. At the time of appointing or declaring any person as the guardian of a minor, it is not the rights of the parents or relatives that should concern the court. The paramount consideration is the welfare of the minor child. The aforesaid aspect has been consistently highlighted over the years in several judicial pronouncements of the Supreme Court and the High Courts including in the cases of Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1 SCC 840]; L.Chandran vs. Mrs. Venkatalakshmi and Anr. [AIR 1981 AP 1]; Smt. Surindar Kaur Sandhu vs. Harbax Singh Sandhu and Anr. [(1984) 3 SCR 422,]; Kamla Devi vs. State of Himachal Pradesh and Ors. [AIR 1987 HP 34]; Mrs. Elizabeth Dinshaw vs. Arvand M. Dinshaw and Anr. [(1987) 1 SCR 175]; Smt. Elokeshi Chakraborty vs. Sri Sunil Kumar Chakraborty [AIR 1991 Calcutta 176]; Kirtikumar Maheshankar Joshi vs. Pradipkumar Karunashanker Joshi [AIR 1992 SC 1447]; Bimla Devi vs. Subhas Chandra Yadav “Nirala? [AIR 1992 Patna 76]; Sumedha Nagpal vs. State of Delhi & Ors. [(2000) 9 SCC 745]; Mausami Moitra Ganguli vs. Jayanti Ganguli [AIR 2008 SC 2262]; Gaurav Nagpal vs. Slumedha Nagpal [(2009) 1 SCC 42]; Shyamrao Maroti Korwate vs. Deepak Kisanrao Tekam reported as [(2010) 10 SCC 314]; and, Smt. Vibha vs. Sh. Rama Nand [2013 X AD (DELHI) 399].
9. In Halsbury's Laws of England, Fourth Edition, Vol. 24, para 511 at page 217 it has been stated;
"Where in any proceedings before any court the custody or upbringing of a minor is in question, then, in deciding that question, the court must regard the minor's welfare as the first and paramount consideration, and may not take into consideration whether from any other point of view the father's claim in respect of that custody or upbringing is superior to that of the mother, or the mother's claim is superior to that of the father."
10. Sometimes, a writ of habeas corpus is sought for custody of a minor child. In such cases also, the paramount consideration which is required to be kept in view by a writ-Court is `welfare of the child'.
11. In Mc Grath, Re, (1893) 1 Ch 143 : 62 LJ Ch 208, Lindley, L.J. observed;
“The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of the child is not to be measured by money only nor merely physical comfort. The word `welfare' must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well-being. Nor can the tie of affection be disregarded.”
12. Law in the United States is also not different. In American Jurisprudence, Second Edition, Vol. 39; para 31; page 34, it is stated;
"As a rule, in the selection of a guardian of a minor, the best interest of the child is the paramount consideration, to which even the rights of parents must sometimes yield".
13. In Saraswathibai Shripad v. Shripad Vasanji [AIR 1941 Bom 103], the High Court of Bombay stated;
"It is not the welfare of the father, nor the welfare of the mother that is the paramount consideration for the Court. It is the welfare of the minor and the minor alone which is the paramount consideration."
14. In Rosy Jacob's case (supra), the Hon'ble Supreme Court held that object and purpose of 1890 Act is not merely physical custody of the minor but due protection of the rights of ward's health, maintenance and education. The power and duty of the Court under the Act is the welfare of minor. In considering the question of welfare of minor, due regard has of course to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship.
15. In Surinder Kaur Sandhu (Smt.) v. Harbax Singh Sandhu, [(1984) 3 SCC 698], the Hon'ble Supreme Court held that Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes father as a 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. [See also Elizabeth Dinshaw (Mrs.) v. Arvand M. Dinshaw, [(1987) 1 SCC 42] and, Chandrakala Menon (Mrs.) v. Vipin Menon (Capt), [(1993) 2 SCC 6].
16. In Kirtikumar Maheshanker Joshi v. Pradip Kumar Karunashanker Joshi [(1992) 3 SCC 573] custody of two minor children was sought by father as also by maternal uncle. Mother died unnatural death and the father was facing charge under Section 498-A of IPC. Children were staying with maternal uncle. Before this Court, both the children expressed their desire to stay with maternal uncle and not with the father. Considering the facts and circumstances and bearing in mind the case pending against the father and rejecting his prayer for custody and granting custody to the maternal uncle, the Hon'ble Supreme Court stated; "After talking to the children, and assessing their state of mind, we are of the view that it would not be in the interest and welfare of the children to hand over their custody to their father Pradipkumar. We are conscious that the father, being a natural guardian, has a preferential right to the custody of his minor children but keeping in view the facts and circumstances of this case and the wishes of the children, who according to us are intelligent enough to understand their well-being, we are not inclined to hand over the custody of Vishal and Rikta to their father at this stage"
Construing the expression `welfare' in Section 13 of Hindu Minority and Guardianship Act, 1956, liberally, the Hon'ble Supreme Court observed;
"It is well settled that the word `welfare' used in this section 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".
17. The Hon'ble Supreme Court in recent judgment in the case of Yashita Sahu vs. State of Rajasthan and others (Criminal Appeal No. 127 of 2020, decided on 20th January, 2020) has held as under:-
“14. Reference in this regard may be made to the judgment in Elizabeth Dinshaw (supra) wherein this Court was dealing with a case where the wife was an American citizen whereas the husband was a citizen of India. They got married in America and a child was born to them in the year 1978. In 1980, differences arose between the couple and the wife filed a petition for divorce. The jurisdictional court in America had dissolved the marriage by a decree of divorce on 23.04.1982 and by the same decree it was directed that the wife would have the care, custody and control of the child till he reaches the age of 18 years. The husband was given visitation rights. Taking advantage of the weekend visitation rights, the husband picked up the child from school on 11.01.1986 and brought him to India. The wife filed a petition under Article 32 of the Constitution of India before this Court. Not only was the petition entertained, but the same was allowed and we would like to refer to certain important observations of this Court in Para 8:
"8. Whenever a question arises before a court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. We have twice interviewed Dustan in our chambers and talked with him. We found him to be too tender in age and totally immature to be able to form any independent opinion of his own as to which parent he should stay with. The child is an American citizen. Excepting for the last few months that have elapsed since his being brought to India by the process of illegal abduction by the father, he has spent the rest of his life in the United States of America and he was doing well in school there. In our considered opinion it will be in the best interests and welfare of Dustan that he should go back to the United States of America and continue his education there under the custody and guardianship of the mother to whom such custody and guardianship have been entrusted by a competent court in that country. We are also satisfied that the petitioner who is the mother, is full of genuine love and affection for the child and she can be safely trusted to ook after him, educate him and attend in every possible way to his proper upbringing. The child has not taken root in this country and he is still accustomed and acclimatized to the conditions and environments obtaining in the place of his origin in the United States of America. The child's presence in India is the result of an illegal act of abduction and the father who is guilty of the said act cannot claim any advantage by sme school in Pune. The conduct of the father has not been such as to inspire confidence in us that he is a fit and suitable person to be entrusted with the custody and guardianship of the child for the present."
In para 17 of the aforesaid judgment, it is also observed as under:-
“17. It is well settled law by a catena of judgments that while deciding matters of custody of a child, primary and paramount consideration is welfare of the child. If welfare of the child so demands then technical objections cannot come in the way. However, while deciding the welfare of the child it is not the view of one spouse alone which has to be taken into consideration. The courts should decide the issue of custody only on the basis of what is in the best interest of the child.”
18. In the light of above, this Court has to consider various factors while deciding the issue in hand. No hard and fast rule can be laid down and each case is to be decided on its own merits but the foremost and paramount consideration would be the welfare of the child. The Court has to decide what is in the best interest of the child after weighing all the pros and cons of the respective guardians who are claiming custody of the child. It is true that such order passed cannot provide a perfect environment to the child. However, under Section 7 of the Act the Court is empowered to make an order of guardianship keeping in view
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the welfare of child, which is paramount consideration. 19. In the present case, father of the minor female child had faced trial for the offence under Section 304-B, alternatively, under Sections 306, 498-A of IPC in relation to the death of his wife, deceased Bharti. It is admitted position that now the respondent has remarried and out of the wedlock one child is born. 20. The minor child Divya has shown her affinity towards her maternal grandparents (the appellants herein) rather than her father and has expressed that her father killed her mother, hence she would not like to live with her father. More so, we interacted with the child in camera and found that she is happy and contended under the guardianship of her maternal grandparents. Compatibility of the child appears to be more with the appellants rather than her father, who in the changed circumstance of remarriage and having a son out of the second marriage, cannot be expected to give undivided attention, affection and care to the child (Divya). 21. On analyzing all the aforesaid facts and circumstances of the case, we are of the opinion that the paramount consideration of the child in question would be to direct custody of the child to her maternal grandmother, i.e., appellant No.2. 22. In view of the aforesaid, the impugned order dated 22.7.2019 passed by First Additional District Judge, Dabra District Gwalior in MJC (GW) No. 07/2017 is hereby set aside. As child Divya is still in custody of her maternal grandmother, her custody shall be continued till the child attains age of majority. 23. The appeal stands allowed accordingly. No costs.