2006 Supreme(Guj) 785

Gujarat High Court
Judgename :K.M.MEHTA
RUCHIRKUMAR GAJANANDBHAI SUTHAR - Appellant
Versus
AMITABEN, HASMUKHLAL NANCHANDDAS MEWADA - Respondent
CIVIL REVISION APPLICATION 265 Of 2006
Decided On : 12/11/2006

Headnote:Point in Issue :

       Whether in the facts of the case mother is entitled to custody of her minor child in the interest of her welfare?

       Head Note :

       Hindu Minority and Guardianship Act, 1956 (Central Act 32 of 1956) - Sections 6, 6(a) and 13 - Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Sections 97 and 397 - Civil Procedure Code, 1908 (Central Act 5 of 1908) - Section 115 - Minor child - Custody of - Considering welfare of child - Custody given to mother - Challenge to - Sustainability - Finding as to - The female child in the case is below five years, therefore, custody of the child should ordinarily be with mother unless the welfare of the child demands otherwise - Such a child needs most a tender affection, the caressing hand and the company of his natural mother, which cannot be properly substituted either by father or his relatives as the facts revealed in the case - The minor child Hemali in the case is staying at Himatnagar where as the father is staying at Dahod for his work - The grand mother of the child who is looking after her is also serving in school - In such case welfare of minor is of paramount consideration which covers the material and physical well being, education, health, happiness and moral welfare of the child - The trial Court has taken into consideration all the relevant factor into consideration while passing impugned order of giving custody of minor to mother - No arguments are advanced to destroy the reasoning of the trial Court - In view of this Court finds no force in the petition - Court accordingly while dismissing the petition passed consequential reasonable order providing opportunity to father petitioner also to see the child.

       Held :

       In view of the facts when the father is staying away and grandmother who is looking after the child is also serving in school. On the other hand the mother of the child is deprived of the child and in view of Sections 6 and 13 of the Hindu Minority and Guardianship Act and the decisions cited before this Court particularly the decisions of the Honble Supreme Court, this Court comes to the conclusion that if the custody of the minor child be handed over to the mother from the custody of father, the same will be in the interest of welfare of the minor child particularly in view of Section 6(a) and Section 13 of the Act.

       The child Hemali will get love and affection of mother which is of prime importance for the child at the tender age.

       The child Hemali will get best care, protection nourishment and upbringing from her mother. This Court is of the view that looking to he age of the child mother is the best person in the world to take care of the child and there is no alternative or substitute of mother so far as child is concerned at this stage. [Para 44]

       This Court is of the view that the custody of the child be given to the mother. In this behalf Court has also considered the judgment of the trial Judge where he has also given the custody of minor child to the mother. The Counsel for the petitioners has not pointed out any grounds by which the reasoning of the learned trial Judge can be destroyed. The Counsel for the petitioner has not been able to successfully assail the findings of the learned trial Judge. The trial Judge has given very cogent and convincing reasons to deliver the custody of minor child to mother. There is no reason to interfere with the said findings of the trial Judge. However, Court have given additional reasons and also considered the judgment of the Honble Supreme Court and Sections 6 and 13 of the Act. In view of the same, this Revision Application is rejected. [Para 45.1]

       Law Laid Down :

       The welfare of the child must be taken in its widest sense - The moral and religious welfare must be considered as well as its physical well being - Nor can ties of a affection be discarded.

       Case Law Analysis :

       Smt. Manju Tiwari vs. Dr. Rajendra Tiwari & Anr., AIR 1990 SC 1156 [Para 35.1];; Kumar V. Jahgirdar vs. Chethana Ramatheertha, AIR 2004 SC 1525 [Para 35.2];; Poonam Datta vs. Kirshanlal Datta & Ors., AIR 1989 SC 401 [Para 35.3];; Rajesh K. Gupta vs. Ram Gopal Agarwala & Ors., AIR 2005 SC 2426 [Para 35.4];; Smt. Mohini vs. Virender Kumar, AIR 1977 SC 1359 [Para 35.5];; Mrs. Wlizabeth Dinshaw vs. Arvand M. Dinshaw & Anr., AIR 1987 SC 3 [Para 35.6];; Jai Prakash Khadria & Anr. vs. Shyam Sunder Agarwalla & Anr., AIR 2000 SC 2172 [Para 35.7];; Surabhai Ravikumar Minawala vs. State of Gujarat & Ors., 2004 (3) GLR 2709 [Para 36.];; Ms. Gita Hariharan vs. Reserve Bank of India, AIR 1999 SC 1149 [Para 39.];; Surinder Kaur vs. Harbax Singh, AIR 1984 SC 1224 [Para 42.];; Lindley, L.J. In Re vs. Megrath (Infants (1893 (1) Ch. 143) [Para 43.].-Relied on

       Conclusion :

       In the facts and circumstances if the custody of the child is given to mother, it will be in the best interest and welfare of the child.

       Cases Referred :

       Rosy Jacob vs. Jacob A. Chakramakkal, AIR 1973 SC 2090;; Surinder Kaur vs. Harbax Singh, 1984 SC 1224;; Vasudevan vs. R. Viswalakshmi, AIR 1959 Kerala 403;; In Re vs. Megrath Infants 1893 (1) Ch. 143;; Dhanwanti Joshi vs. Madhav, 1998 (1) SCC 112.

       Decided in Favour of :

       Respondent

       Application Rejected