Father gets Custody from Grandparents as wife is Dead and 498a/304 is acquitted-Delhi Court
IN THE COURT OF SH. GAUTAM MANAN
GUARDIAN JUDGE (CENTRAL) DELHI
G.P. NO. 137/2004
IN THE MATTER OF :
SH. SUKHBIR SINGH
S/O SH. RAM SWAROOP
R/O VILL. BEGUM PUR,
V E R S U S
1. SH. PRABHATI LAL
2. SMT. SHANTI DEVI
W/O SH. PRABHATI LAL
3. SH. JITENDER
S/O SH. PRABHATI LAL
4. SH. BAL RAJ
S/O SH. PRABHATI LAL
5. SH. OMI
S/O SH. PRABHATI LAL
ALL R/O, H.NO. 3772, GALI RAMNATH,
PATUA TAIL MANDI PAHAR GANJ,
NEW DELHI110055. …….RESPONDENTS
UNDER SECTION 25 OF THE GUARDIAN & WARDS ACT FOR THE CUSTODY OF THE MINOR MASTER ‘MOHIT’
Date of Institution : 09.07.2004
Judgment Reserved on : 17.09.2011
Judgment Delivered on : 24.10.2011
J U D G M E N T
1. The present petition under section 25 of the Guardian and Wards Act has been filed by the father of minor child namely ‘Mohit’ against the respondents (Nana, Nani & Mama) for seeking permanent custody of minor child, who is now aged about 10 years.
2. As per the case of the petitioner, he was married to RoshniDevi(deceased), daughter of the respondent no.1, on 12.05.1998. Out of the said wedlock two children were born, one female child ‘Kanta @Kirti’ and a male child namely ‘Mohit’ on and 24.07.2001 respectively. It is averred that the mother of the minors Smt. Roshni Devi got expired on 29/12/2002 in the LokNayak Jai Parkash Hospital,Delhi due to some disease. The minor ‘Mohit’ son of the petitioner is only 3 years of age and as such tender age hence presently needs the care, love and custody of the petitioner (father) which is in the welfare and development of the minor. The minor ‘Mohit’ was taken from the custody of the petitioner forcibly and deceitful after the death of his mother on 29/12/2002.
3. It is stated that after the death of mother of the children, the petitioner and his relative several times approached to the respondents to hand over the custody of the child ‘Mohit’ but of no avail and they categorically refused all requests. The petitioner also sent a legal notice through his counsel seeking custody but to no effect. It is stated In the absence of the company of his son Master ‘Mohit’ the petitioner is very mentally depressed. The female child ‘Kanta’ is residing with the petitioner. The minor ‘Mohit’ is in the custody of her grandparents and maternal uncle. The company of the minors with each other is very necessary for playing, love, affection and development. It is further submitted that petitioner (father) is natural
Guardian of minor child and fit for taking the custody of the minor child hence the present petition seeking permanent custody of minor child has been filed.
4. In the written statement, the respondent no. 1&2 have submitted ‘Mohit’ was born in August, 2001 on the day of Teej festival. The petitioner committed various cruelties, physical and mental to the daughter of the respondent no. 1 & 2 namely, Smt. Roshni Devi and consequently, the said daughter of the respondents have died. A case U/s. 498A/34 IPC bearing FIR No. 961 dated 08/08/2002 P.S. Sultanpuri was also registered against petitioner and his parents. The petitioner even did not maintain his wife and after death of
Smt. Roshni Devi on 28/12/2002 ‘Mohit’ is in the care and custody of
the respondent no. 1 and 2 . It is stated that even the petitioner has not
flamed the last rites of his wife and since the petitioner himself is a wrong doer, he is not entitled to the discretionary relief of the custody of the minor children. The petitioner has got no love and affection with the minor children. and is not in the welfare of the minor children. The petitioner did not even cared to maintain his wife and further did not take care of her Smt. Roshni Devi was suffering from various ailments and was admitted in LNJP Hospital, New Delhi. Even during her treatment, the minor children were living in the care and custody of the respondent no. 1 & 2. The welfare of the minor children is with the respondent no. 1 & 2 who are maintaining and looking after the minor child since he was only about 7 months. It is further submitted that the petitioner has solemnized the second marriage after the death of Ms. Roshni Devi and the said lady, Smt. Prem @Babli is the daughter of Sh. Fateh, who is also having two children and the petitioner is keeping the s said two children with him. The petitioner has no love and affection for the minor children. Not only this, the petitioner is not maintaining the minor daughter who is living in the care and custody of the petitioner.
6. It is stated that a case is still pending against the petitioner u/s 498A/34 IPC. The petitioner was hasty to marry another lady Smt. Prem @ Babli after the death of Smt. Roshni Devi, his first wife. The respondents are the best persons to maintain and look after the welfare of the minor children.
7. Petitioner filed replication wherein he has reasserted the avernments made in the petition while denying those made in the written statement.
Vide order dated 31/07/2007, the following issues were framed:
1. Whether petitioner is entitled for permanent custody of minor child
Master ‘Mohit’ as prayed ? OPP
9. The Ld. Predecessor of the Court had a Chamber interaction with the minor child ‘Mohit’ on 03/01/2007. The child informed that he is studying in Rana School. The child stated that he
has many friends in his School and that Piyush is his best friend. The
child denied that he knows the petitioner.
10. The petitioner examined himself as PW1 and tendered
his evidence by way of an affidavit Ex. PW1/A. The petitioner proved
the birth Certificates of both the kids are Ex. PW1/2 and Ex. PW1/3. A
FDR as Ex PW1/4. Blood donor Card is Ex. PW1/5. The copy of the
legal notice is Ex. PW1/6 & Postal Receipts as Ex. PW1/711.
G.P. No.137/04 page 7/2411. The petitioner during his cross examination deposed that
he is matriculate and is earning a sum of Rs. 12,000/ per month. The
petitioner admitted income of respondents at Rs.1520,000/ and that
respondent no.1 he is a Govt. Servant. It is admitted that the child
Mohit was about 7 months old when his wife left the house along with
the child and also admitted that he has solemnized the second marriage.
He has one daughter from the 2
marriage and his second wife has got
two children from her previous marriage but denied that those children
are living with them. The petitioner deposed that he is paying Rs. 300/
per month for the education of his daughter who is studying in class 3
and the daughter from 2
wife is not studying anywhere as she is of
two year old only.
12. The petitioner also examined PW2 Sh. Ram Swaroop his
father who tendered his examination in chief by way of an affidavit Ex.
G.P. No.137/04 page 8/2413. In defense respondent appeared in witness box as RW1
and tendered her evidence by way of affidavit Ex. RW1/A. The medical
bills and receipts are collectively Ex. RW1/1 (1to40) Clinical test of
Kumar Diagnostic are collectively Ex RW1/2 (1to 3). Clinical test of
Dr. Disujas Diagnostic are collectively Ex. RW1/3 (1 to 11).
Prescription of LNJP Hospital is collectively Ex. RW1/4 (1 to 4 ). Copy
of FIR is Mark X.
14. During his cross examination RW1 deposed that he has
five daughters and six sons. Out of five daughters one has expired. Out
of six sons, three are married and his three sons namely Balraj,
Yudhbir & Jitender are living separately. His son Balraj has three
daughters and two sons and he is residing at South Delhi. His son
Yudhvir is having two daughters and one son. His son Jitender is
having three daughters. Out of his five daughters, one married daughter
has expired, two are married and two daughters are living with him. It
G.P. No.137/04 page 9/24is deposed that respondent no.1 is income tax assesse. He sell idols of
Gods after purchasing them from Kolkatta. He sell the same from road
side stand as well as from his house and from fair etc. It is also deposed
that except the child in question, petitioner does not have any other
male child and deposed that he does not know whether the petitioner is
bringing up the daughter properly or that if he is sending her in a public
15. The respondent also examined Sh. Jitender Kumar his
son as RW2 and this witness tendered his examination in chief by
way of an affidavit Ex. RW2/A. The witness deposed that he is a retired
person. He is a property dealer.
16. I have heard counsel for parties and perused the entire record.
G.P. No.137/04 page 10/2417. ISSUE NO.1: Whether petitioner is entitled for
permanent custody of minor child Master ‘Mohit’ as prayed ? As
per the settled law it is the objective of the Guardian and Wards Act
that every trial is only to ensure paramount welfare and interest of the
children. The guardianship Court is not a platform where litigation
parties can be permitted to vent their grudges and her feelings against
each other and that matters and relevant is as to what would be done to
secure the welfare and interest of the minors since in all the
guardianship cases it is the minors only who are the victims even
through they have no role to play in the failed marriages of their
18. It has been contended on behalf of the respondents that
the child ‘Mohit’ has been in their care and custody since his infancy
and the petitioner has never taken the care to look after the welfare of
G.P. No.137/04 page 11/24the child. It has been argued that the respondents have proved the
following facts which disentitles the petitioner to have the custody of
the minor, such as :
a) The petitioner always treated mother of the child with cruelty
and a case under section 498A was registered against the petitioner.
b) That the minor is in their custody since he was barely 7 months
old and has adjusted well in company of the respondents.
c) That the respondents have sufficient means to upbring the child
and to take care of his welfare.
d) The petitioner has shown no interest in the growth of the child.
e) In an interaction with Court, the child has failed to recognize the
petitioner as his father and has desired to live with his maternal grand
G.P. No.137/04 page 12/24f) The petitioner has remarried and has also to look after the
children of his second wife.
19. In support of their case the respondents have relied upon:
AIR 2007 Rajasthan 190, in this case, the child was
residing with his father since beginning and the Hon’ble
Court held that” the child is living with the father and his
family members. …… the child is very much attached with
his grandmother and the child considers her to be his real
mother and expressed no inclination to leave the present
surroundings and he was found to be happy. In view of the
facts and circumstances of the case, when both the parties
are residing in the same vicinity at Ajmer, though
separately as their relations are not cordial, it would not
be in the interest and well being of the child to disturb him
from the present surroundings and to hand over his
custody to the appellantwife while she is staying away
from the husband though there has been no ‘Talaq’ as yet.
AIR 2006 MP 234, in this case the Hon’ble Court held
that”……In this case also the minor child is not willing to
go with his mother. This he repeatedly expressed before
the Court during his statement in the trial Court and also
at the time of final hearing of this case before us.
Therefore, the view taken by the Court is erroneous to
G.P. No.137/04 page 13/24send the child in the custody of the natural guardian, who
is mother (respondent No. 1). There is no evidence on
record that the grandfather, who is appellant had kept the
child forcefully or the child is also not willing to go with
his grandfather. In his statement in the lower Court he
categorically stated that he is not willing to go with his
mother. He suspects that his father was murdered by his
mother. He also apprehends that his mother will kill him.
It may be that his apprehension may not be on a sound
footing or even baseless but a child of 1011 years cannot
be permitted to live under such apprehension which may
hamper his mental growth.”
AIR 2006 Jharkhand 124, in this case, where the question
of custody of 14 years old boy was in question, the Hon’ble
Court held that ” admittedly minor has been brought up
with love and care by grand parent since after unnatural
death of his mother when he was 7 months old, now boy is
14 years old. Father of child had never shown any interest
in his upbringing and never visited him all these years.
Father is remarried and having two children from second
marriage and has been convicted in criminal charge in
connection with death of first wife. Grand father has
sufficient means to properly bring up said minor. In
circumstances placing minor in custody of natural parent,
whom he had never seen and heard of, may cause him
emotional and psychological break down. Considering
paramount welfare of child, appointment of his grand
father as his guardian instead of father, is proper”.
G.P. No.137/04 page 14/24AIR 1992 SC 1447 wherein Hon’ble Apex Court declined to
handover custody of children to their father on grounds
that children were not ready to live with their father and
there were episodes of ill treatment of their mother by
their father and he was also facing charge under section
AIR 2006 Orissa 179, In a claim for custody by maternal
grandfather mere fact that maternal grandfather had filed
application under S.125 Cr.P.C. for grant of maintenance
to child against father was held to be no ground to infer
that grandfather has no sufficient means to maintain child.
In this case it was also taken into consideration that minor
child aged about 5 years when asked to identify her father
she failed to do so and expressed her desire to remain with
her maternal grandfather. The finding by trial Court that
grandfather was entitled to be appointed as guardian
based on statement of minor girl was not interfered with.
20. There can be no denial that after the death of the mother,
father of the child is the next best person to be his guardian. In present
case the respondents have not proved that the petitioner or his family
members were convicted for the offences under section 498A/34 IPC
rather a copy of judgement passed by Ld Mahila Court has been placed
G.P. No.137/04 page 15/24on record by the petitioner in order to show that petitioner and his
family members stands acquitted in that case.
21. It is also not disputed that the real sister of the minor
‘Mohit’ is in custody of the petitioner namely ‘Kanta @ Kirti’. The
female child was born in the year 1999 and since then is in custody of
the petitioner. It has come in evidence that she is student of
Indrapastha Government Senior Secondary School, Begumpur, Delhi.
This goes to show that the petitioner is taking good care of the female
child and nothing is on record that either the petitioner or his second
wife has maltreated the girl child.
22. On the other hand there is no evidence on record that
whether the minor ‘Mohit’ is getting proper education or not. The
respondents have not named any person who is responsibly taking care
of the education of the child.
G.P. No.137/04 page 16/2423. The respondent no.1 is an old aged person. He has a big
family consisting of 5 daughters and 6 sons. His three married sons are
residing separately from him. as per his deposition two unmarried
daughters and three sons are residing with him. At the time of
recording of evidence in the year 2008 the respondent no.1 was 73
24. The son of the respondent no.1 who appeared as RW2 in
his affidavit has testified that minor should live with respondent’s no.1
& 2. Neither the RW2 has deposed that he will help his father in up
bringing the minor nor any any of other children of respondents 1 & 2
have been examined by the respondents in order to show that any of
their children are ready to take care of the child in absence of
respondents no. 1 & 2. There is a huge age difference between
petitioner & respondent no.1. It cannot be ruled out that in their old age
the respondent 1 & 2 may face difficulty in taking care of the child.
G.P. No.137/04 page 17/2425. The respondents have alleged that the petitioner has
shown no interest in welfare of the child. The fact that the petitioner in
litigating with the respondents to claim the custody of the minor since
2004 cannot be ignored. The petitioner has also proved a notice sent to
the respondents directing them to hand over the custody of the child to
him. Thus, it cannot be concluded that the petitioner was not having
any interest in custody of child or he was not interested in his welfare.
26. As per the deposition made by the petitioner and he is
owning a Tempo and is earning Rs1200015,000/ per month. The
income of respondent no.1 is stated to be around Rs10,000/. The
financial condition of the petitioner is no different than that of the
respondent no.1 but the fact that the respondent no.1 has to take care
of his 5 unmarried children makes his financial position little difficult.
The petitioner has proved a fixed deposit Ex PW1/4 in order to show
his bonafides that he is ready to take responsibility of education of his
son as well.
G.P. No.137/04 page 18/2427. ‘Mohit’ was merely seven months old since when he is
custody of the respondents. But the existence of this situation cannot be
attributed to the petitioner as the petitioner has been litigating for past 7
years to have his custody. The child is merely ten years and the child
can adjust well if his custody is given to the petitioner specially when
the child has a elder real sister to comfort & support him.
28. The child has failed to recognize the petitioner as his
father and has desired to live with his maternal grandparents in facts
of the case does not seem to be a disability as this statement was made
by the child when he was merely 4 years old. Thereafter, it was ordered
that the petitioner shall meet the minor twice a month and the sister of
minor shall also meet the child. Now, the petitioner is not a total
stranger to the minor and it is the right age when the minor can be
asked to join the company of his father & real sister.
G.P. No.137/04 page 19/2429. It has been submitted that the petitioner has remarried
and has also to look after the children of his second wife as such the
child may feel repulsion in presence of step mother. But it is not
disputed that the daughter of the petitioner Kanta @ Kirti is also
residing with the petitioner and her step mother. There is nothing on
record to suggest that second wife of petitioner has ever maltreated her
30. I am afraid that none of the judgments cited by the
respondents support their claim as facts of those cases were quite
different to the case in hand.
31. In AIR 2009 SC 557 has held that when the court is
confronted with conflicting demands made by the parents, each time it
has to justify the demands. The Court has not only to look at the issue
on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what
the parties say, it has to exercise a jurisdiction which is aimed at the
welfare of the minor. As observed recently in Mousami Moitra
Ganguli’s case 2008 AIR SCW 4043, the Court has to due weightage
to the child’s ordinary contentment, health, education, intellectual
development and favorable surroundings but over and above physical
comforts, the moral and ethical values have also to be noted. They are
equal if not more important than the others.
32. In the light of the evidence recorded it is concluded that:
a) that the financial status of the respondents
is no better than that of the respondent, rather the
respondents 1 & 2 have to take care of their five
b) that the minor although is living separately
from his father but he is likely to benefit from
having the company of the his real sister if his
custody is given to the petitioner.
G.P. No.137/04 page 21/24c) that the minor who at present is in custody
of the respondents is not shown to be getting good
d) The respondents 1 & 2 are old aged
persons and none of children of the respondents
have come forward to support the cause of
upbringing the minor.
e) The petitioner has brought up the sister of
the minor well and being natural father of the
minor the petitioner is more likely to imbibe the
moral and ethical values in the child.
f) The petitioner has already been held not guilty
of offenses under section 498A/34 IPC of
maltreating mother of minors.
g) If the minor will live in company of real
elder sister, his sister can not only provide a
comfort zone to the minor and her company can
be quite fruitful in growing age of the minor as
sisterly love can provide the minor warmth of a
h) Second marriage of the petitioner cannot
be held to be disability as there is no evidence
that the step mother of the child has maltreated
the sister of the minor who is living with the
petitioner and step mother rather it is in evidence
the sister of minor, Kirti @ Kanta is getting good
education in a good School.
In the light of the aforesaid conclusions, it is held that
the paramount welfare of the minor Mohit is with the petitioner. Thus,
the issue stands answered in favor of the petitioner and against the
34. However, keeping in view the fact that minor remained in
custody of the respondents, the respondents 1 & 2 are granted visitation
rights to meet the minor twice in a month. The petitioner shall produce
master Mohit on first and third Saturday of each calender month at 3:00
pm at Children’s room at Tis Hazari Courts. The meeting hours shall be
3:00 PM to 4:30 PM. In case either of the parties is not able to make it
for the visitation venue for any justified reason then they shall inform
the other party at least 24 hours in advance. The respondents shall also
be allowed a telephonic conversation with the minor twice a week.
RELIEF: In view of the aforesaid discussions, the
petition seeking permanent custody of child Mohit is allowed. The
respondents are directed to hand over the custody of master Mohit to
the petitioner. The respondents are granted visitation rights as
aforesaid. Parties to bear their own costs.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT
ON : 24TH OCTOBER 2011