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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Mangesh S. Patil, Y. G. Khobragade, JJ.
Sunil – Appellant
Versus
Sahebrao Shankar Jagtap & Ors. – Respondents
Family Court Appeal No. 06 of 2022
Decided On : 20-12-2022
Guardians and Wards Act - Custody - 1890 - The court discussed the provisions of section 25 of the Guardians and Wards Act, 1890 and emphasized the welfare of the minor children as the paramount consideration in custody matters. The court highlighted the natural guardianship of the father and the legal right to claim custody of his children under section 6 of the Hindu Minority and Guardianship Act, 1956. The court also considered the wishes of the minor children while deciding their custody application. The court ultimately allowed the appeal and directed the grandparents to hand over custody of the minor children to the appellant.
Fact of the Case:
The appellant sought custody of his minor children from his in-laws after the death of his wife. The Family Court dismissed the petition based on the pending criminal trial against the appellant for various offenses under the Indian Penal Code.
Finding of the Court:
The court found that the welfare of the minor children, the natural guardianship of the father, and the wishes of the children were the key factors in deciding the custody matter. The court emphasized the ethical upbringing, economic well-being of the guardian, and the overall comfort, contentment, health, education, physical, mental, and intellectual development of the minors.
Issues: The issues involved the custody of the minor children, the pending criminal trial against the appellant, and the allegations made by both parties regarding the circumstances leading to the death of the appellant's wife.
Ratio Decidendi: The court held that the welfare of the minor children is of paramount importance in custody matters. It emphasized the natural guardianship of the father and the legal right to claim custody of his children. The court also considered the wishes of the minor children while deciding their custody application.
Final Decision: The court allowed the appeal, quashed the impugned judgment, and directed the grandparents to hand over custody of the minor children to the appellant. The grandparents were granted visitation rights on specified days.
Key Points: - The welfare of the minor children is the paramount consideration in custody matters (!) (!) . - The father is the natural guardian with a preferential right to custody under the Hindu Minority and Guardianship Act, Section 6 (!) (!) (!) . - The court considered welfare, ethical upbringing, economic well-being, overall comfort, health, education, and development of the minors (!) (!) . - The court interacted with the minors and noted their wishes in deciding custody (!) . - The Family Court’s denial of custody due to pending criminal trial was set aside; custody of minor children was awarded to the appellant father (!) (!) . - Grandparents were given visitation rights on specific days (!) . - The order emphasizes modifying custody in favor of the natural guardian when welfare is served (!) (!) .
JUDGMENT
Y. G. Khobragade, J. - Admit. The appeal is heard finally with the consent of the learned counsel appearing for both sides.
2. By the present appeal, the appellant takes exception to the judgment and order dated 25.10.2021 passed by the Family Court, Ahmednagar dismissing the petition (D1/2021), filed by the appellant under section 25 of the Guardians and Wads Act, 1890 for custody of his two minor children i.e. present respondent Nos. 3 and 4. The respondent Nos. 1 and 2 are his in-laws i.e. parents of his deceased wife Priyanka.
3. It is the case of the appellant that, on 20.02.2014, his marriage was solemnized with Priyanka, as per custom and rites prevailing in their community and out of marital tie, on 19.01.2015 they were blessed with a male child Shubham (Respondent No.3) and on 05.03.2019, a female child, Samrudhi (Respondent No.4). Priyanka was having some health issues. Her maternal house is situated in the same city, hence, since 10.09.2019 she started residing at her maternal house. However, on 03.12.2019, around 8.30 to 9.00 p.m. Priyanka committed suicide while residing at her maternal house and the fact was informed to him through phone but after hearing the sad news, he was became unconscious. Therefore, he was hospitalized for entire night and on the second day, he visited the house of his in-laws for funeral of Priyanka. However, in the meanwhile, respondents 1 & 2 and their relatives started making allegations against the appellant and his family members which led to filing of complaint against him, which resulted in registration of Crime No. 1766/2019 with Kotwali Police station, Dist. Ahmednagar for the offences punishable under sections 306, 498-A, 323, 504, 506 and 507 of the Indian Penal Code.
Subsequently, said crime led to registration of Regular Criminal Case No.418 of 2020 which is pending on the file of learned Judicial Magistrate First Class, Ahmednagar.
4. According to the appellant, since the day of marriage, the matrimonial relations between him and his wife Priyanka were cordial. He has been serving with the Central Railway being permanent employee and Priyanka was working as the State Government employee with Irrigation Department and both of them were drawing good salary. In the month of September 2019, Priyanka went to her maternal house along-with son Shubham and daughter Samrudhi (Respondent Nos. 3 and 4) due to her sickness. On the eve of Diwali festival, he presented golden necklace to his wife. But unfortunately, his wife committed suicide on 03.12.2019 and respondent No.1 filed a false complaint against him and his family members and since then, the respondent Nos. 1 and 2 kept custody of his minor children Shubham and Samrudhi. So also, the respondent Nos. 1 and 2 did not allow him to meet his minor children. He filed a petition under section 25 of the Guardians and Wards Act and prayed for custody of his minor children-Respondent Nos. 3 and 4 from the respondent Nos. 1 and 2.
5. According to the appellant, respondent No.1 is his father-in-law and respondent No.2 is his mother-in-law. The respondent Nos. 1 and 2 are having two unmarried children and no one is in a position to take care of his both the minor children. The children are studying in Jainacharya Shri Shivmuniji Gurukul School (JSS Gurukul) and he is capable of taking every care of his children. His son Shubham is having good affection with his mother Alkabai and he is natural guardian of both children having every love and affection towards them. Therefore, he requested respondent Nos.1 and 2 to be given in his custody.
6. Respondent Nos. 1 and 2 filed their written statement at Exh. 30 and denied all adverse allegations made against them. According to respondent Nos. 1 and 2 marriage of their daughter Priyanka was solemnized on 02.02.2014 with the appellant at Yesh Grand Hotel, Ahmednagar and they borne huge expenses of Rs.10 lakhs towards marriage of their daughter and also provided dowry of Rs. 3 lakhs cash and 3 tol
The welfare of the minor children is the paramount consideration in custody matters, and the natural guardianship of the father entitles him to claim custody of his children.
Natural guardianship principles and admissions regarding paternity must be prioritized in custody cases involving minors.
Section 7 of Wards Act, 1890 provides that Court, on satisfaction that it is for welfare of a minor, can pass order appointing a guardian of person or property of minor or both.
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