Back
1995 Supreme(AP) 684
Andhra Pradesh High Court
Judges : A.GOPAL RAO, MOTILAL B.NAIK
Vidya - Appellant
Versus
Anil Kumar Lakotia - Respondent
Decided On : 10-16-95
The welfare of the minors is the paramount consideration in determining who should have custody of them.
Headnote:
CUSTODY OF MINOR CHILDREN - GUARDIAN AND WARDS ACT, 1890 - SECTION 6(A) - WELFARE OF THE MINORS IS THE PARAMOUNT CONSIDERATION - COURT MUST EXAMINE WHO IS BETTER PLACED TO LOOK AFTER THE NEEDS OF THE MINORS - JOINT FAMILY IS A BETTER PLACE TO LOOK AFTER THE NEEDS OF THE MINORS THAN A LONELY LADY - FATHER IS ENTITLED TO THE CUSTODY OF THE MINORS ONCE THEY COMPLETE THE AGE OF FIVE YEARS.
Fact of the Case:
The appellant-wife filed a petition under Section 25 of the Guardian and Wards Act for custody of minor children from the respondent-husband. The appellant alleged that she was driven out of the house by the respondent and his family members due to dowry demands. She also alleged that the respondent was not taking care of the children and that their welfare would be better served if they were in her custody. The respondent denied the allegations and contended that the children were happy and well-cared for in his family.
Finding of the Court:
The court held that the welfare of the minors was the paramount consideration in determining who should have custody of them. The court found that the respondent was better placed to look after the needs of the minors than the appellant. The court also found that the respondent was the natural guardian of the minors once they completed the age of five years.
Issues: 1. Whether the welfare of the minors is the paramount consideration in determining who should have custody of them? 2. Whether the respondent was better placed to look after the needs of the minors than the appellant? 3. Whether the respondent was the natural guardian of the minors once they completed the age of five years?
Ratio Decidendi: The court relied on the provisions of Section 6(a) of the Guardian and Wards Act, which states that the father is the natural guardian of a Hindu minor who has completed the age of five years. The court also relied on the principle that the welfare of the minors is the paramount consideration in determining who should have custody of them.
Final Decision: The court dismissed the appeal and upheld the order of the lower court granting custody of the minors to the respondent.
( 1 ) THIS appeal is filed against the dismissal of O. P. No. 1186 of 1990 by the additional Chief Judge, City Civil Court Hyderabad (Temp) filed under section 25 of the Guardian and Wards Act for custody of minor children, viz. , master Bharat Kumar and Baby Arti from the respondent-husband.
( 2 ) APPELLANT herein is the wife and the respondent is the husband. It is the case of the appellant that their marriage took place in the year 1985 at maheshwari Bhavan, Begum Bazar, Hyderabad as per Hindu rites and customs. After the marriage, the respondent was not satisfied with the articles and gifts presented by the parents of the appellant and there was a demand from the respondent-husband and his family members for getting more dowry. In the month of October, 1990 the parents of the appellant were at Rajasthan and on the intervening night of 4th and 5th October, 1990 the appellant was beaten mercilessly and was driven out of the house with a pre-planned scheme to drive her from the house after the departure of the respondent to Delhi. It is alleged that the appellant s life became miserable at the house of the respondent. She was also threatened with dire consequences and was driven out of the house of the respondent with four sarees and Rs. 60/- only. The appellant had no other go than to leave the matrimonial house. After being driven out she desired to go to Tuljapur for staying in the temple peacefully in order to forget the torture and physical assaults. However, she had no money to proceed to Tuljapur and therefore, desired to sell her gold ring at Secunderabad. In that pursuit, she went to one Jawaharmal s shop for selling the gold ring, which is situated in secunderabad. It is stated that the said Jawaharmal took pity on the appellant and gave shelter to her for nearly ten days. Subsequently he informed the father of the appellant on 15-10-1990 about the appellant s stay in his residence, over telephone. On receipt of the telephonic message, the father of the appellant seems to have rushed to the house of Jawaharmal and brought the appellant to his house. The father of the appellant suspected foul play on the part of the respondent and his parents, lodged a compliant with the concerned police. However, the respondent seems to have managed with the police and got the case registered as a case of girl missing. The matter was later on enquired by the police and the case was altered and registered under Section 498-A of IPC.
( 3 ) IT was stated that the two children born from out of the legal wed-lock were in the custody of the respondent-husband since 5-10-1990. It is alleged that they were wrongfully detained as a result of which the appellant s life has also become miserable. She made efforts to seek the custody of the children but could not succeed. It is further alleged that if the children are to remain in the custody of the respondent-husband, their life will be miserable without their mother s services and affection. It is alleged that the respondent being a businessman,has no time to attend to the welfare of the children.
( 4 ) TO meet these allegations, the respondent-husband has filed a detailed counter before the Court below, inter alia contending that the respondent- husband went to Delhi for business purpose only for three or four days from 5-10-1990. The father of the respondent came to the station to see him off. Immediately after the respondent leaving for Delhi, the appellant seems to have left the house of the respondent causing confusion in the family without the permission of anybody. The father of the respondent contacted him on telephone and passed on the message to him. After receiving the message from his father, the respondent rushed back to Hyderabad and made enquiries. A complaint was also lodged with the police in this regard. Ultimately, it was detected that the respondent (sic. appellant) was stationed in the house of one mr. Jawaharmal at Secunderabad. It was denied in the c
