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2006 Supreme(Bom) 562
Bombay High Court
K.J.ROHEE
Ashok Shankarrao Ghatage - Appellant
Versus
Mahipati Yashwant Khutale - Respondent
Decided On : 04/05/2006
Dilip Taur, for Appellant; P. D. Dalvi, for Respondent.
The welfare of the minor is the primary consideration in determining custody under the Guardians and Wards Act, 1890, and exceptional circumstances may warrant appointing a guardian other than the natural guardian.
Headnote:
Guardians and Wards Act - Custody - Section 8 - 1890 - Summary of Acts and Sections: The court discussed the provisions of Section 8 of the Guardians and Wards Act, 1890, which deals with the custody of a minor. The court highlighted the principles of appointing a guardian for the person of the minor and the exceptional circumstances under which a person other than a natural guardian should be appointed as the guardian.
Fact of the Case:
The appellant sought custody of his minor son Tushar under Section 8 of the Guardians and Wards Act, 1890, after the death of his wife. The respondent, Tushar's maternal grandfather, had obtained custody of Tushar following the death of the appellant's wife. The court considered the welfare of Tushar in determining custody.
Finding of the Court:
The court found that it was not in the best interest of the minor Tushar to be handed over to the appellant for custody, despite the appellant being the natural guardian. The court considered the appellant's remarriage and the presence of a step-mother in the appellant's household as factors influencing its decision.
Issues: The main issue was whether it was in the best interest of the minor Tushar to be placed in the custody of the appellant, his natural guardian.
Ratio Decidendi: The court held that the welfare of the minor is of paramount importance in determining custody, and considered the fitness of the natural guardian, the presence of a step-mother, and the overall circumstances in reaching its decision.
Final Decision: The court dismissed the appeal for custody of Tushar, with costs.
2. The facts about which there is no dispute is that the marriage of the appellant was solemnized with Suvarana, the daughter of the respondent, on 15-5-1996. Out of the said wedlock Tushar was born on 27-8-1997. Suvarna died on 18-11-1998 in mysterious circumstances when Tushar was only 15 months old.
3. On 27-11-1998 the respondent moved Miscellaneous Criminal Application NO. 119 of 1998 under Section 97 of the Code of
Criminal Procedure and obtained search warrant for Tushar from the Judicial Magistrate, First Class, Panhala. The custody of Tushar was given to the respondent. The present appellant preferred Criminal Revision No. 271 of 1998 against the order of the Judicial Magistrate First Class, Panhala. However the revision application was dismissed by the Additional Sessions Judge, Kolhapur on 26-2-1999. The respondent preferred Criminal Writ Petition No. 369 of 1999 against the said order. This Court rejected the said writ petition by order dated 12-4-1999.
4. On or about 29-4-1999 the respodnent, as guardian of minor Tushar, instituted Regular Civil Suit No. 76 of 1999 against the appellant and his father praying for perpetual injunction restraining them from alienating the ancestral property of Tushar. On 6-5-1999 the respondent moved Misc. Criminal Application No. 24 of 1999 under section 125 of the Code of Criminal Procedure for grant of maintenance allowance of Rs. 500/- per month for Tushar.
5. On 29-6-1999 the appellant moved the present application for custody of his minor son Tushar under Section 8 of the Guardians and Wards Act, 1890. According to the appellant he is the only son of his father and his parents love Tushar very much. The appellant is serving as I. T. I. professional with Ghatge Patil Industries Limited at Kolhapur. The appellant does up and down from his place Kodoli (Warna) which is industrially developed by Warna Industrial Group. The educational and medical facilities are available there. The appellant is financially sound and can look after the welfare of his son Tushar. On the other hand, the respondent is uneducated agriculturist and resides at village Khutalwadi which is a remote place and where medical and educational facilities are not available. The respondent is not paying proper attention towards the welfare of Tushar. The appellant, therefore, prayed for custody of Tushar.
6. The respondent resisted the application by filing written statement. According to the respondent, the appellant used to ask his wife Suvarna to bring money from her father for purchase of a Maruti Van and used to harass her for his illegal demand. Because of the said harassment Suvarna committed suicide on 18-11-1998. Crime No. 56/98 was registered against the appellant and his family members under Ss. 498-A, 304-B r/w. 34 of the Indian Penal Code. The appellant and others were arrested in connection with the said offence and they were subsequently released on bail and were tried.
7. According to the respondent, Suvarna was his only daughter. The appellant has moved the application for custody of Tushar only with a view to counter blast the civil suit and miscellaneous criminal application under S. 125 of the Code of Criminal Procedure made by the respondent on behalf of Tushar. The respondent further submitted that the appellant re-married and is residing with his second wife. Thus there is danger to the life of Tushar at the house of the appellant. The respondent further submitted that he has got two sons who are taking education. Village Khutalawadi is situated on Kolhapur-Ratnagiri State Highway and Ratnagiri-Hyderabad National Highway at a distance of 1 k.m. from village Bambavade. In fact, Khutalwadi and Bambavade have become one
