HC: Father facing criminal charges? Child Custody cannot be given !!!
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal From Order No.301 of 2008
1. Godhan Singh Jalal
S/o Shri Harak Singh Jalal
2. Smt. Gayatri Devi
W/o Shri Godhan Singh Jalal
Both R/o Village Gangapur Choi,
Police Station Ramnagar,
Shri Kishan Singh Bisht
S/o Late Lacham Singh Bisht,
R/o Village Bokta, P.O. Chaunala,
Tehsil and P.S. Gangolihat,
District Pithoragarh .Respondent
Shri Sarvesh Agarwal, Advocate present for the appellants. Shri Vijay Bhatt, Advocate present for the respondent.
Dated: 14th March, 2011
Coram: Hon’ble Prafulla C. Pant, J.
Hon’ble V.K. Bist, J.
Prafulla C. Pant, J. (Oral)
This appeal is directed against the order dated 05.07.2008 passed by Judge, Family Court, Nainital in Misc. Civil Case no.14 of 2004, whereby said Court has allowed the application moved by the respondent for the custody of his children.
2. Heard learned counsel for the parties and perused the Lower Court’s Record. Since the parties to the litigation are present in person alongwith the children, we heard them in person also.
3. Brief facts of the case are that respondent-Kishan Singh Bisht got married to Padma Devi (daughter of the appellants-Godhan Singh Jalal & Smt. Gayatri Devi). Out of said wedlock, two children, namely, Pooja Bisht & Gaurav @ Paras Bisht were born. It appears that on 06.10.2003, Padma Devi died unnatural death and a criminal case was registered against the respondent relating to offences punishable under Section 304 B, 498 A, 504 I.P.C. and one punishable under Section 3/4 of the Dowry Prohibition Act, 1961. It further appears from the record that the respondent Kishan Singh Bisht was released on bail in said case, but the trial is yet not over. On 15.06.2004, respondent Kishan Singh Bisht (father of the two children) moved an application under Guardian and Wards Act, 1890 before the Family Court, Nainital seeking custody of the two children, who were living with their maternal grand parents (present appellants). The Trial Court vide impugned order dated 05.07.2008 allowed the said application and directed the maternal grand parents of the children to give their custody to the respondent (father of the children).
4. Admittedly, respondent Kishan Singh Bisht is father of the two children, namely, Pooja Bisht & Gaurav @ Paras Bisht. It is also admitted to the parties that appellants Godhan Singh Jalal and Smt. Gayatri Devi are maternal grand parents of the children. It is also not disputed that the mother of the children has died unnatural death in the year 2003. Also, there is no dispute that at that point of time Pooja Bisht 3
(daughter) was aged two years and Gaurav @ Paras Bisht (son) was aged one year. The respondent serves in the Indian Army. Being father of the children, he claimed custody of the children, after his release from the jail. The Trial Court appears to have passed the impugned order considering the fact that the respondent, being father, is a natural guardian of the children.
5. However, it is settled principle of law that in the matters of dispute relating to the custody of children, the most important consideration is the interest of the children. The children, who are present before this Court and are too young. They are being looked after by their maternal grand parents. The appellants, who are the maternal grand parents, pleaded before us that they are looking after/educating the children to the best of their ability and giving no cause of concern to the father of the children. The young children, when enquired by us, in the presence of their father, as to whether they would like to live with their maternal grand parents or with the father, they orally expressed their desire before us that they want to continue to live with their maternal grand parents. They are too young, the elder child is studying in Class III and the younger one is in Class II. Though, the father of the children (present respondent) pleaded before us that he should be given custody of his children but in the present facts and circumstances of the case, we are of the view that keeping in mind the paramount interest of the children, it is not desirable to grant custody of the 4
children to their father, at this stage. We are conscious of the fact that the father is facing a trial in respect of offence punishable under Section 304 B I.P.C. and the trial is not yet concluded. If it results in conviction, the interest of little children would get seriously affected by giving their custody to their father, at this stage. In Yogesh Kumar Gupta Vs. M.K. Aggarwal A.I.R. 2009 Uttarakhand Page 30, this Court has expressed the similar view in the similar kind of dispute.
6. In the above circumstances, we are of the view that the Trial Court has erred in law by directing the appellants to transfer the custody of the children Pooja Bisht & Gaurav @ Paras Bisht to the respondent. The application moved by the respondent before the trial court, in our opinion, is liable to be dismissed, at this stage. Accordingly, we allow this appeal and set aside the order dated 05.07.2008 passed by Family Court, Nainital in Misc. Civil Suit No.14 of 2004. However, we direct that the respondent shall be allowed to visit and meet his children in the house of the appellants, at least once in a month, if he comes to meet them.
7. No order as to costs.
(V.K. Bist, J.) (Prafulla C. Pant, J.) 14.03.2011