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2014 Supreme(Bom) 606
In the High Court of Bombay at Nagpur
A.B. CHAUDHARI, J.
Sau. Archana Rameshwar Shingane & Another
Versus
Rameshwar Vishnu Shingane
Appeal against Order No. 28 of 2013
Decided on: 10-03-2014
For the Appellants:R.A. Haq, S.J. Kadu, Advocates.
For the Respondent:H.S. Chitaley, holding for A.A. Naik, Advocates.
Headnote:GUARDIANS AND WARDS ACT, 1890 - Section 9 - Custody of female child. - Since girl child coming of age, not willing to go with her father as her father has remarried and has a son hence custody of girl child must remain with her natural mother. - It is not in dispute that a lump sum amount of Rs. 3.50 lakhs was given to the appellant-wife ’A’ when the divorce took place. It is also true that there was a settlement or compromise in those proceedings of divorce that the appellant ’A’ would not object to handing over of custody of the girl child to the husband. But then said statement, according to me, cannot come in the way of District Judge or appellant ’A’ to seize the custody of the girl child and hand it over to the husband. The power of the District Court under the Guardians & Wards Act to adjudicate and hand over the custody of the child is independent and is not affected by any concession or a statement by any of the parties to the earlier litigation. A responsibility has been cast on the District Judge to find out welfare of the child by keeping in mind all the attending circumstances. Court did not agree with the District Jude that a statement or the permission given by the wife at the time of divorce would at all come in her way or the way of the District Judge in granting the custody of child.
The conclusion reached by the District Judge is that the appellant-wife does not have a perennial source of income for maintaining and educating the daughter. The simple answer to this is that the daughter through her mother can claim maintenance from the husband who is earning and, therefore, such a reason should not have weighed with the District Judge. On the contrary, the fact that the husband has not been paying anything for maintaining or educating the daughter shows that he had hardly any interest in the daughter. There is one more reason why this Court is recording the said finding. The reason is that immediately after the divorce, the respondent- husband re-married and has a son by name ’G’ from the second marriage. The reason given by the District Judge that there is no presumption that the step-mother would ill-treat the girl child is absurd. The question is not one of presumption. The question is required to be decided in the light of the attending circumstances. The first circumstance is that the child is born from the appellant No. 1. The second circumstance is that she is a girl coming of age. Third circumstance is that her statement was recorded by the District Judge wherein she categorically stated that in no case she would go to her father, i.e., respondent- husband. The District Judge has quoted her statement in the impugned judgment and order, but has recorded a lame reason that because the girl is residing with her mother from the childhood and she has been in custody of her mother, she must have made the said statement before District Judge. This is another absurdity. The statement of the girl that was recorded by the District Judge. Her statement repeatedly shows that she is not at all interested in going to her father. Another reason must be that she would be required to be under her stepmother, leaving her natural mother who gave birth to her. Such a sensitive and emotional issue has not been properly handled by the District Judge despite recording the statement himself. The paramount consideration is the welfare of the child. In this case it is the girl child who must be with her natural mother. Perusal of the judgment of the District Judge shows all throughout that he has recorded a finding in favour of the girl child that she should be with her natural mother. But then what impresses the District Judge is the convent/school at Buldana as against a Zilla Parishad school at the village where appellant-’A’ is residing and that she has no source of income for educating the girl child.
It is the responsibility and duty of the respondent-husband to make a provision for the daughter for her schooling by keeping her in the custody of her natural mother ’A’, the appellant, and if the respondent-husband is not performing his duty, maintenance and the expenses for education can easily be claimed from him. The statement of the girl that was recorded by the District Judge shows a serious aspect of the matter. She stated that her father never came to meet her. Whenever her birth day is celebrated in the month of May, her grand-father brings a cake and not once her father came for her birth day. Not even once her father has given any clothes or toys. The father never met her. She does not want to go to her father. Even in the event her mother ’A’ goes to the respondent to reside, she would never go to reside with her father. This shows how the girl was scared. Hence the above two points are answered in the negative.
1. Heard. Appeal is taken up for final disposal.
2. Being aggrieved by the Judgment and Order dated 23rd January, 2013 passed by the Principal District Judge, Buldana, in Guardian & Ward Case No. 10 of 2011, by which the learned District Judge allowed the said Guardian & Ward Case No. 10 of 2011 and directed handing over of custody of the daughter - Ku. Sheetal, aged ten years, to the respondent - Rameshwar, husband, from the appellant - Mrs. Archana, wife, the present appeal has been filed by wife.
3. In support of the appeal, learned counsel for the appellant argued that the impugned Judgment and order shows contradictory reasons and is in contravention of the settled principles in the matter of handing over of custody of the daughters or girl children, that too in a case where the husband re-marries and has a son from the second marriage. According to him, the learned District Judge has ignored that the paramount consideration in such cases is the welfare of the girl child, and the learned District Judge has gone by surmises and conjectures to make an order of handing over of custody of a girl child. He, therefore, submitted that the said order deserves to be set aside.
4. Per contra, learned counsel for the respondent-husband Mr. Chitaley holding for Adv. Mr. A.A. Naik vehemently opposed the appeal and supported the impugned Judgment and order. He argued that the appellant-wife does not have a permanent source of income, except for the lump sum amount of Rs.3,50,000-00 that was given for divorce by the husband. She is at the mercy of her parents and brothers and that is the major reason why the learned District Judge has ordered handing over of custody of the girl child to the husband. He argued that the girl could be admitted and imparted education in the best school/convent, if she is given to the husband, whereas the appellant-wife is living in a village and the girl is studying in a Zilla Parishad Primary School. Obviously, according to him, the future education of the girl child would be affected and, therefore, the learned District Judge was right in handing over the custody of the girl child. He, therefore, prayed for dismissal of the appeal.
5. I have gone through the entire judgment recorded by the learned Principal District Judge, Buldana. I have gone through the entire record.
6. Upon hearing the learned counsel for the rival parties, I proceed to frame the following points for determination:-
[1] Whether the learned District Judge was right in handing over the custody of girl child Ku. Shital, aged about ten years, to the respondent - husband, merely because the appellant-wife did not have sufficient source of income to maintain and educate the girl child - Ku. Shital? No.
[2] Whether the reasons given by the learned District Judge for handing over the custody of the girl child to the husband are legal, correct and proper and whether he has cared the welfare of the child as a paramount consideration? No.
[3] What order? Appeal is allowed.
7. It is not in dispute that a lump sum amount of Rs. 3.50 lakhs was given to the appellant-wife - Archana when the divorce took place. It is also true that there was a settlement or compromise in those proceedings of divorce that the appellant - Archana would not object to handing over of custody of the girl child to the husband. But then said statement, according to me, cannot come in the way of District Judge or appellant - Archana to seize the custody of the girl child and hand it over to the husband. The power of the District Court under the Guardians & Wards Act to adjudicate and hand over the custody of the child is independent and is not affected by any concession or a statement by any of the parties to the earlier litigation. A responsibility has been cast on the District Judge to find out welfare of the child by keeping in mind all the attending circumstances. I do not agree with the learned District Jude that a statement or the permission given by the wife at the
