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High Court Of Rajasthan
Judgename : P.D.Kudal,K.S.Sidhu
SNEHLATA MATHUR - Appellant
Versus
MAHENDRA NARAIN - Respondent
Special Appeal 4 Of 1978
Decided On : 07/05/1979
GUARDIANSHIP - CUSTODY - FATHER'S RIGHT - WELFARE OF MINOR - PARAMOUNTCY - SECTION 10, GUARDIANS AND WARDS ACT, 1890 - SECTION 19 (B), GUARDIANS AND WARDS ACT, 1890 - SECTION 25, GUARDIANS AND WARDS ACT, 1890 - SECTION 2, HINDU MINORITY AND GUARDIANSHIP ACT, 1956 - SECTION 13, HINDU MINORITY AND GUARDIANSHIP ACT, 1956 - SECTION 6, HINDU MINORITY AND GUARDIANSHIP ACT, 1956 - FATHER'S RIGHT TO CUSTODY NOT INDEFEASIBLE - WELFARE OF MINOR PARAMOUNT - BURDEN OF PROOF ON PERSON CHALLENGING FATHER'S RIGHT - FATHER'S RIGHT PREFERENTIAL IN CONTEST WITH PERSON OTHER THAN MOTHER - MOTHER'S CONSTRUCTIVE CUSTODY OF NO USE TO CHILD - CHILD'S PREFERENCE NOT OF MUCH IMPORTANCE - FATHER ENTITLED TO CUSTODY IN ABSENCE OF MOTHER.
Fact of the Case:
Father filed an application under Section 10 of the Guardians and Wards Act, 1890 for his appointment as guardian of his minor daughter Mona. The mother opposed the application, contending that the return of the minor to her father's house would not be in her interest and welfare. The District Judge and the single Judge allowed the father's application and appointed him as guardian of Mona.
Finding of the Court:
The Court held that the father's application, though purporting to be under Section 10 of the Guardians and Wards Act, 1890, was in substance an application under Section 25 of the said Act for custody of the minor. The Court further held that the father's right to custody is not indefeasible and is circumscribed by the consideration of the benefit and welfare of the minor. In a contest for custody between the father and the mother, the welfare of the minor is the paramount consideration. However, in a contest between the father and some person other than the mother, the position of the father from the point of view of the welfare of the minor is clearly preferential. The Court found that the mother had failed to prove that the maternal grandparents of the child were better placed than the father from the point of view of the welfare of the child.
Issues: 1. Whether the father's application was maintainable under Section 10 of the Guardians and Wards Act, 1890, in view of the bar under Section 19 (b) of the Act? 2. Whether the welfare of the minor was the paramount consideration in determining the issue of custody? 3. Whether the father's right to custody was indefeasible? 4. Whether the mother had discharged the burden of proving that the maternal grandparents were better placed than the father from the point of view of the welfare of the child?
Ratio Decidendi: 1. The Court held that the father's application, though purporting to be under Section 10 of the Guardians and Wards Act, 1890, was in substance an application under Section 25 of the said Act for custody of the minor. The Court relied on the fact that the father had made the application for the purpose of obtaining the custody of the child from the mother, and this was how the parties concerned and the Courts had throughout understood it to be. 2. The Court held that the welfare of the minor was the paramount consideration in determining the issue of custody. The Court relied on Section 13 of the Hindu Minority and Guardianship Act, 1956, which lays down that in the matter of appointment of a guardian of a minor the welfare of the minor shall be the paramount consideration. 3. The Court held that the father's right to custody is not indefeasible and is circumscribed by the consideration of the benefit and welfare of the minor. The Court relied on the fact that the father as the natural guardian in the instant case did not require his appointment as a guardian of his minor daughter Mona. His object in making the application was to obtain the custody of the child. 4. The Court held that the mother had failed to prove that the maternal grandparents of the child were better placed than the father from the point of view of the welfare of the child. The Court found that the mother had admitted that the child had been in the physical custody of her grandparents for the last 5 years, and that she had failed to prove that the grandparents were better placed than the father from the point of view of the welfare of the child.
Final Decision: The Court dismissed the mother's appeal and directed her to hand over Mona to the father in the Court of the District Judge, Jaipur City, in the presence of the presiding officer on July 31, 1979, failing which they shall run the risk of being dealt with for contempt of Court.
SIDHU, J.
( 1 ) THIS is a D. B. Special Appeal by Snehlata from the order, dated November 29, 1978, made by Kasliwal J. in Misc. Civil Appeal No. 104 of 1978, affirming the order, dated, March 30, 1978, made by the District Judge, Jaipur City in guardianship Case No. 46 of 1976, allowing the application of Mahendra Narain under Section 10, Guardians and Wards Act, 1890 (for short, the Act of 1390)and consequently appointing Mahendra Narain as guardian of his minor daughter Mona, and directing the return of Mona to his custody.
( 2 ) THE facts which are not in dispute may be shortly stated here. Mahendra narain and Snehlata, the contesting parties, were married according to Hindu rites on January 19, 1971. Their relations became strained soon after the marriage. A female child, named Mona, was born in the wedlock on January 26, 1972. The husband obtained dissolution of the marriage by a decree of divorce on March 9, 1978. Earlier in 1972, the wife had made an application under section 552 of the Code of Criminal Procedure 1898 for restoration of the custody of Mona to her. The husband restored the child to her in the presence of the Magistrate concerned on June 22, 1972.
( 3 ) MONA resided with her mother till November, 1974 when the mother went to england for studies for the degree of M. R. C. P. Except for a short visit to India in March, 1976, the mother has throughout been residing in England from november, 1974 to day. She is expected to conclude her studies abroad and return to India in November, 1979. In the mothers absence from India, the child has been and is in the charge of the mothers parents at Jaipur all these years. She is studying in the M. G. D. School Jaipur.
( 4 ) ON March 17, 1976, Mahendra Narain made an application styling it to be an application under Section 10 of the Act of 1890 for his appointment as guardian of Mona. He complained that the mother (Snehlata) who had removed Mona from his custody on the plea that the child needed motherly love and care had left her in the charge of her parents at Jaipur and gone abroad. He pleaded that since the mother had abandoned the child he was desirous of obtaining her custody so that he could raise the child and give her education according to what he considered was in the best interest of the child. He added in this context that help of his own mother was available to him in his house for looking after the welfare of this child. He pleaded that since the child had already crossed the age of 4 (she has since crossed the age of 7) he was entitled to her custody. He repeated that, under the circumstances, the only way to ensure the welfare of the child is to order her return to his custody. It was on these averments that he prayed for the relief of his appointment and declaration as guardian of this minor.
( 5 ) SNEHLATA, the mother, admitted that she had obtained custody of the minor from Mahendra Narain on June 22, 1972, that she had gone to England in november, 1974 leaving the minor in the charge of her parents at Jaipur and that she had been residing in England all these years. The mother, however, pleaded that she had been making regular remittances to the child for her maintenance and support and that the child is by now very much attached to the mothers parents with whom she is residing continuously since the mother went to England for higher studies. The mother added in this context that it would not be in the interest of the child to uproot her from the mothers parents house and compel her to live with the father and his parents in their house. According to her, the fathers mother is in the habit of taking alcoholic drinks and therefore, it would not be good for the child to be left in her care. She accused that the father is carrying on illicit relations with a woman, named jyoti, and that he has no love or affection for the minor. She pleaded that since june 22, 1972, when the child was restored to her custody, the father has not cared to s
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