Jodhpur HC- Custody cannt be denied because of some fortuitous circumstance
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Misc. Appeal No.1572/2008
Mangal Das Viashnava & Anr.
Jitendra Kumar Vaishnava
DATE OF ORDER :: 15th May, 2009 PRESENT
HON’BLE MR. PRAKASH TATIA, J.
Mr. IR Choudhary, for the appellants.
Mr. AK Rajvanshy, for the respondent.
BY THE COURT:
Heard learned counsel for the parties.
This appeal is by the non-applicants maternal grand- father and grand-mother against the judgment of the court of Addl. District Judge, Bali, Pali passed on the application filed under Section 7 of the Guardian and Wards Act by the father of the minor child whereby the trial court has allowed the application of the father of the child Nikhil and directed the appellants-non-applicants to hand over the custody of the child Nikhil to the respondent-applicant-father.
Brief facts of the case are that the respondent- applicant’s marriage was solemnized with appellant’s daughter Smt. Asha on 21st Nov., 2005. Out of wedlock, boy Nikhil born on 12th Sept., 2002. It is stated that in the year 2003 applicant-respondent’s wife fell ill seriously and due to illness she died on 2.8.2004. At that time, the appellant-non-applicant came to the house of the respondent-applicant and stated that for few days they want to take Master Nikhil to their house and they took Nikhil to their house for living with them for few days only. However, thereafter, inspite of request of the applicant-respondent, the appellants-non-applicants did not hand over the custody of the Master Nikhil to the respondent-father. It is also alleged that appellant no.2 is the second wife of the appellant no.1 and therefore, is the step mother of the applicant respondent’s wife deceased Asha. Therefore, it is stated that appellants are not entitled to have the custody of the son of the applicant-respondent. It is also stated that appellants-non-applicants were of the age of 55 and 53 respectively and they have no good source of income and they are carrying on their life with the help of their pre-earned income, whereas the applicant is in private service and is getting Rs.6,000/- per month and has good living accommodation. It is also submitted that the applicant- respondent’s father is a retired Government employee and therefore, they have very good family wherein the applicant’s son will have best lookafter and will get good education and the welfare of the applicant’s-respondent’s son will be if he lives with the applicant-respondent. The applicant before filing this petition for custody in the court gave a registered notice to the appellants-non-applicants on 25.2.2005 and even, thereafter, the custody of the child has not been delivered to the respondent-applicant, then he has filed the present petition.
The non-applicants submitted reply to the petition while admitted the marriage of the respondent’s-applicant with their daughter and birth of Master Nikhil on 12th Sept., 2002. They denied that their daughter was sick for long period and submitted that in fact, she become sick because of the torture on their daughter by the family members of the applicant-respondent. They also stated that they used to harass deceased Asha for dowry and they gave beating to Smt. Asha and thrown out Smt. Asha from the house of the applicant-respondent. That caused mental agony for Smt. Asha and because of that she fell ill. It is stated that the appellants-non-applicants took Smt. Asha to hospital and they incurred all the expenses for the treatment of their daughter Smt. Asha. The applicant never tried to care his wife and hardly he came to meet with his wife Smt. Asha and on account these cruelty Smt. Asha died on 2.8.2007. It is stated that non-applicant no.1 is doing his business in Nadiyad City of Gujarat and he was not given information about the death of Smt. Asha in time, but immediately when non-applicant no.1-appellant no.1 received the information of death of Smt. Asha he reached to village Bali where she died. It is alleged that before appellant no.1 could reach village Bali from Nadiyad, Asha’s funeral was performed and non-applicant no.1 protested for funeral of Asha before non- applicant reached to the house of the applicant, upon which his family members tendered apology and because of the intervention of the relations, non-applicant no.1 did not lodge FIR against the applicant for committing murder and for demanding dowry.
It is also stated in the reply that the applicant and his father assured that they will return all the goods of Smt. Asha which was given to Smt. Asha at the time of marriage by the non-applicants. They also agreed that they will allow custody of Master Nikhil to the appellants-non-applicants, however, after some time, the applicant and his family members refused to deliver Smt. Asha’s Istridhan upon which the non-applicants initiated separate proceedings. It is also stated that welfare of the child is if the custody of the child remaines with the non-applicants. It is also stated that applicant is doing work of cooking at Nadiyad, he is saving Rs.10,000/- per month. The non-applicant no.2 is also doing work from home and earning. The non- applicants also stated that the applicant is not doing services in any private firm nor he has income of Rs.6,000/-. He is trying to get Government employment, but living with his father, who is running the house. The applicant’s father was a Class IV employee, who has already retired three years ago and getting nominal pension. In the family of applicant, he has one elder brother, elder brother’s wife, two sons and two daughters of his elder brother. The applicant cannot impart good education to the child Master Nikhil.
The trial court framed the issues and both the parties led evidence. In support of the petition, the applicant gave his own statement as AW-1 and produced witness AW-2 Ranchhod Das, who is father of applicant Jitendra Kumar, AW-3 Veera Ram and AW-4 Ramesh Das. In documentary evidence death certificate of Smt. Asha, birth certificate of Master Nikhil and copy of the notice and postal receipts were produced by which notice was sent by the applicant to the non-applicants. The non-applicant no.1 gave his own statement as NAW-1 and produced witnesses NAW -2 Vardhi Shanker and NAW-3 Dinesh Kumar. The non-applicants also produced medical prescription to show that they provided medical treatment to Smt. Asha and produced photographs. The trial court after considering the evidence of the parties and considering the judgments relied upon by the parties, held that Smt. Asha was living with the applicant till she died and admittedly, she died in the house of the applicant. It is admitted case that Smt. Asha was suffering disease of tuberculosis. From the evidence it is not proved that Smt. Asha’s treatment was not provided by the applicant from doctors. From the fact that Smt. Asha died in the house of the applicant, the court drew inference that there was no serious dispute between the husband and wife and, there was no complaint of any dowry demand etc. against the applicant. From the first information report, copy of which has been produced as Ex.A/22, it is clear that in FIR only allegation was that the applicant refused to return the goods which was given to Smt. Asha by the non- applicants at the time of her marriage. The case was registered under Section 406 IPC and not under Section 498A IPC. In the FIR it is not mentioned that Smt. Asha was ever harassed for dowry. In cross-examination, the non-applicant NAW-1 Mangal Das himself stated that he is ready to hand over the custody of child to applicant provided applicant obey his directions. The non-applicant no.1 also stated that he is ready to hand over the custody of the child to the applicant provided the applicant deposits Rs.80,000/- in the name of Master Nikhil. The court below held that from evidence nothing came against the conduct of the applicant so as to deny him custody of the child and further more the applicant is in private service, he is getting Rs.6,000/- per month as salary and the same has increased to Rs.8,500/- per month, therefore, he will be able to lookafter his son and will be able to give good education to his son. Against this, the non-applicants are of the age of 57 and 55 years and they have no good source of income. In totality, the trial court was of the view that for the welfare of the child it is necessary that his custody may be given to child’s father.
Being aggrieved against the judgment of the trial court dated 25th Sept., 2008, learned counsel for the appellants vehemently submitted that paramount consideration in such matters is not the legal right of the natural guardian or of anybody but the paramount consideration is welfare of the child. He stated that admittedly Smt. Asha died within the period of five years from the time of marriage. Smt. Asha’s funeral was done without waiting for Smt. Asha’s mother and father – non-applicants-appellants and there was no reason for doing so by the applicant and his family members. The child was living with non-applicants since last two years seven months and then the applicant submitted application for custody. It is submitted that just after funeral of Smt. Asha, the applicant and his family members with the help of relatives could avoid criminal prosecution against them and agreed that they will return all the goods of daughter of non-applicants and also agreed that custody of Master Nikhil will remain with the non- applicants. Otherwise, there was no reason for allowing the custody of Master Nikhil with appellants for more than two years. It is also submitted that applicant-respondent has no source of income and the child is well looked after by their maternal grand-father and mother. It is also stated that from the child’s inteligence and courteous behaviour it is clear that he is being very well looked after by the non- applicants. It is submitted that the child has shown his willingness to live with his maternal grand-father and mother before this Court on 4.2.2009 and this Court has recorded his wish on 4.2.2009. It is submitted that now Master Nikhil is of the age of 6 years. He knows his maternal grand-father’s and mother’s attitude and conduct, therefore, there is no reason to disturb the custody of the child of age of more than 6 years, who has lived with the appellants for more than six years, which may cause him the great mental shock and he virtually is not known his father as he had no occasion to live with his father. Learned counsel for the appellants relied upon the judgment of the Hon’ble Superme Court delivered in the case of Kirtikumar Maheshankar Joshi Vs. Pradipkumar Marunashanker Johsi reported in 1992 SC 1447 and recent judgment of the Hon’ble Supreme Court delivered in the case of Nil Ratan Kundu & Anr. Vs. Abhijit Kundu reported in (2008) 9 SCC 413 wherein father’s claim for the custody of the child was refused by Hon’ble Apex Court. Same was the view taken by this Court and in this respect, the learned counsel for the appellants relied upon the judgment of the Division Bench of this Court delivered in the case of Govind Sahai Bagarhatta & Ors Vs. Shri Santosh Mishra reported in 2001 DNJ (Raj.) 886 and the judgment delivered in Goverdhan Lal & Ors Vs. Gajendra Kumar reported in 2001 DNJ (Raj.) 879
Learned counsel for the respondent-applicant submitted that so far as legal proposition that paramount consideration in such matters is welfare of child, there is no dispute. It is also submitted that applicant is father of the child Master Nikhil. The applicant had good relations with his wife Smt. Asha. Admittedly, she was sick for long period and she died due to her illness. She was suffering from tuberculosis is admitted fact. Before the death of Smt. Aasha, there was no allegation against the applicant and his family members from the side of the non-applicants- appellants nor there was any complaint of Smt. Asha against the applicant and his family members. It is also stated that if Asha was suffering from disease and the appellants got her treated then they cannot say that applicant is responsible for the death of Smt. Asha. Learned counsel for the respondent vehemently submitted that if father’s conduct is good and nothing is adverse against him and he can take care of his son, then there arises no reason to deny the custody of son to father merely because the father could not get the custody of child as his petition was not decided by the court. It is submitted that due to the good relations only, the deceased Asha was living with him and after the death of Asha, the applicant gave custody of the child to the non-applicants-appellants voluntarily so that they may not feel hurt. It is submitted that it will be the benefit of unfortunate situation to the non-applicants- appellants if they are allow to keep the custody of the child. It is submitted that if child has shown his desire to live with his maternal grand-father and grand-mother then that is because of the reason that since birth he was living with them. It is submitted that if he would have lived with the applicant-respondent then he would have shown his desire to live with the respondent-applicant. It is submitted that the wish of the body of six year’s in the facts of the case is absolutely irrelevant. It is submitted that the appellants not only failed to prove any allegation against the applicant- respondent but in fact serious allegations have been levelled just to get certain goods and cash and the trial court has considered all the aspects of the matter in detail, therefore, appeal deserves to be dismissed.
I considered the submissions of learned counsel for the parties and perused the facts of the case and the entire record. So far as relation between the applicant and his wife till applicant’s wife Smt. Asha died are concerned, there is no material on the basis of which it can be said that, that was a bad relation. There is no substance in the allegation of the appellants-non-applicants that Smt. Asha was ill treated by the applicant and his family members. The non- applicants’-appellants’ contention that they lodged FIR against the applicant though after some time, but that was because of the intervention of the relations then that fact situation in preponderance of probabilities clearly suggests that there were no serious dispute even when the last rites of Smt. Asha was performed before the non-applicant no.1 reached to the house of the applicant. In delayed FIR also, there is no allegation that Smt. Asha was ill treated by the applicant and his family members. In that situation, the other facts are required to be seen in the background of these facts because of the reason that custody of the child is claimed by father and not by a relation. The Hon’ble Apex Court in recent judgment delivered in Nil Ratan Kundu & Anr (supra) clearly held that paramount consideration is the welfare of the child and not statutory rights. Further, the Hon’ble Apex Court held that “….the problem has to be resolved rather with a human touch….” and thereafter, observed that in dealing with the cases, the court is neither bound by statues nor by strict rules of evidence or procedure nor by precedents and further observed that since in selecting a guardian, the court exercises parens patriae jurisdiction, it must give due weightage to child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings as well as physical comfort and moral values. The Hon’ble Apex Court also held that court must ascertain child’s wishes and if the minor is old enough to form an intelligent preference, such preference must also be considered although the final decision would rest with the court. The Hon’ble Apex Court further held that for proper test to determine the suitability of the father to have the custody of the minor, the positive test of welfare of the minor and not the negative test that the father was not unfit or disqualified to have the custody.
Keeping in mind the above binding observations if we looked into the facts of the case of Nil Ratan Kundu & Anr (supra) then we can find that in that case father was charged with the offences under Section 498 and 304 IPC and allegation was of causing death of minor’s mother. That was very important fact for refusing the custody of the child to father in the case of Nil Ratan Kundu. It will further worthwhile to mention here that in case of Nil Ratan Kundu, the child was of the age of 6 years when the trial court decided the matter and the trial court did not call him to ascertain the wishes as to with whom he wanted to stay. At this place it is also worthwhile to mention here that the trial court has decided the case on 15th July, 2006, which was affirmed by the High Court of Calcutta on 17.12.2007. As stated above, the child was of the age of 6 years when the trial court decided the matter then the minor child was brought to the High Court where the child expressed his willingness to live with his maternal grand-father and grand- mother. For the child’s that wish, the High Court observed that “….During our conversation with the child we have observed with great anxiety that the child has been tutored to make him hostile towards his father….” The High Court also took note of the observation made by the trial court as the trial court observed that opposite party wanted to wiped out the existence and identity of the father from the mind of petitioner’s son and if it is so, then it may be disasters of father. The Hon’ble Apex Court held that above observation of the trial Court was affirmed by the High Court without there being any material. Here in this case, the child though has shown his willingness to live with his maternal grand-father and maternal grand-mother but that wish appears to be an innocent wish of a child living with his maternal grand-father and grand-mother and child himself is not in position to decide about his own welfare looking to his age. Here in this case, the child had no ill will towards his father and for that the credit may go to the maternal grand-father and grand-mother that, they did not take benefit of that situation. Be it as it may be, the child’s wish is not the sole criteria for deciding the case of such nature as in present fact situation child is only showing that he was not ill-treated by his maternal grand-father and mother or rather say was given full love and affection. That may be a normal behaviour of a normal person. But good behaviour of appellants is not the disqualification of respondent. The respondent is natural guardian and father cannot be denied custody of child merely because others in fortuitous circumstance could give good love and affection to the child. It cannot be presumed that if the child would have lived with his father during this period when custody of child was with appellants, the child wold have not developed the same sentimental attachment with his father and parental family.
Each case is required to be decided according to the facts of the case and Hon’ble Apex Court itself in the case of Nil Ratan Kundu clearly held that “….In dealing with such cases, the court is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. The relevant criteria as laid down by the Hon’ble Apex Court are that weightage to child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings as well as physical comfort and moral values, are the issues which should be looked into. The child’s father here in this case, is in service was getting salary of Rs.8500/- per month, whereas non-applicants who were of the age of 55 and 53 years had limited source of income and non-applicant no.1-appellant no.1 is a cook and taking contract for preparation of food and non-applicant no.1′s work is not of continuous nature with a stability of income.
Further more, the non-applicant in his evidence, in cross- examination admitted that he is ready to give the custody of the child to the applicant provided he obeys his directions and instructions. He also stated that he is ready to give the custody of child to the applicant if he deposits Rs. 80,000/- in fixed deposit in the name of child. Therefore, the non- applicants’ only plea is that they want assurance about the proper security of the child from the applicant. Otherwise there is no objection to them in handing over the custody of the child to the father. This fact is very important because of the reason that even after passing of such a long period, yet there is no ill will in the mind of the non- applicants-appellants for the applicant and his family members, which can only be because of the reason that they could not find any fault in the applicant-respondent in any manner, but they developed some love for the child Master Nikhil and that cannot be reason for allowing the custody of the minor with the maternal grand-father and grand-mother nor can it be the reason for denial of custody of natural guardian – father.
In the case of Kirtikumar Maheshankar Joshi (supra)
the children were not living with their father and they narrated various episodes showing ill treatment of their mother at the hands of their father. In that situation, the Hon’ble Apex Court did not hand over the custody of the children to the father. As stated above, after analysis of statement of appellant no.1, there is no allegation against the conduct of the applicant supported by any evidence nor the child has developed any second alternate to his father. Therefore, in the facts of this case, the case of Kirtikumar Maheshankar Joshi (supra) cannot help the appellants. In the case of Govind Sahai Bagarhatta & Ors (supra), the Division Bench of this Court at the age of 10 years of the child who lived for all that period with his maternal grand-father and after noticing his wish to live with maternal grand-father held that, it is not proper to hand over the custody of the child to his father. The said case was decided on facts of that case and not laying down that when child has disclosed his wish to live with particular party that is binding upon the court.
In the case of Goverdhan Lal & Ors (supra) the child was of the age of 14 years and he was living with his maternal grand-mother and shown his willingness to live with the maternal grand-mother instead of his own father, the Division Bench of this Court refused the custody to father. The said case also has been decided only on the particular facts of the case and has no relevance to the facts of the present case.
It will be further worthwhile to mention here that the applicant-respondent contacted second marriage on 21.1.2007 i.e., after more than two and half years from the time of death of respondent’s wife and it is alleged that the child will have to live with his step-mother. No step-mother can be condemned only because she is step mother and unless there exists any reason. There is no allegation against the non-petitioner’s second wife and at this stage, it will be worthwhile to mention here that even the maternal grand-mother of the child – the appellant no.2 was also the step-mother of the non-petitioner-applicant’s wife. The appellant no.2 also has not been condemned merely on the ground that she was step-mother of respondent’s wife. Therefore, that situation is also not a situation on the basis of which the relief can be denied to the father of the child.
Further more, in cross-examination, the appellant himself admitted that the house of the respondent’s father is a well settled family. The totality of the facts suggests that environment in the house of the respondent is also so as to give a good living to the child for all purposes. In the facts of the case, it has come on record that the applicant is the natural guardian and father of the child, his relation with his wife even at the time of death of his wife was not bad in any manner, there was no allegation of demand of dowry and ill treatment with wife from the side of the applicant before the death of the wife of the applicant. The applicant has permanent income with periodical increase. The appellants-non-applicants themselves on financial security of the minor child are ready to hand over the custody of the child to the applicant- respondent and there is nothing on record to suggest that welfare of the child is in any way in peril in the hands of father. On such grounds, the Hon’ble Apex Court in the case delivered in Mausami Moitra Ganguli Vs. Jayant Ganguli reported in (2008) 7 SCC 673 held that then there is no ground to upset the judgment and the order of the court.
In view of the above reasons, I do not find any reason to interfere in the judgment of the court below. Hence, the appeal of the appellants is hereby dismissed. (PRAKASH TATIA), J.