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2006 Supreme(All) 422
[2006(3) ADJ 368 (All)]
ALLAHABAD HIGH COURT
BEFORE : K.N. OJHA, J.
RAJENDRA KUMAR SHUKLA AND ANOTHER ....Appellants
Versus
VISHNU KUMAR SHUKLA AND OTHERS ...Respondents
(First Appeal From Order No. 832 of 2004, decided on 10th February, 2006)
Counsel :
M.P. Yadav for the Appellants; S.K. Pal, Anil Srivastava and Amit Srivastava for the Respondents.
IMPORTANT POINT
In the matter of custody of children welfare and interest of the child are the paramount consideration and not the convenience and pleasure of the parents.
Headnote:Guardians and Wards Act, 1890—Section 17(3)—Appointment of Guardian of a minor boy aged about 17-1/2 years—Appeared before Court—Court found him to be intelligent enough to decide his welfare—He preferred to live with the person with whom he is already living—Court shall not appoint or declare any person to be guardian against his will—Preference of boy is a material consideration—Studying in Class X—Person with whom he is living makes arrangement of his cloth and education—To disturb his guardian during the session of education will also disturb his feelings and sentiment—Guardian is to be appointed only for six months—Not desirable and justifiable to change the guardianship for this short period—Appeal dismissed—View expressed by trial Court affirmed. [Paras 10 to 13]
Hon’ble K.N. Ojha, J.—Instant appeal has been preferred against order dated 10.2.04 passed by learned Addl. District Judge, Court No. 4 Fatehpur in civil suit No. 26/70/02 (Rajendra Kumar Shukla and others v. Vishnu Kumar Shukla and others) whereby the Application 4-A moved by the appellant Rajendra Kumar Shukla and his wife Smt. Kusma Shukla for handing over minor Yaklendra Kumar Shukla in their guardianship was rejected.
2. Heard Sri M.P. Yadav, learned Counsel for the appellant and Sri S.K. Pal learned Counsel for respondent Nos. 1 and 2 and Sri Amit Srivastava learned Counsel for the respondents and have gone through the record.
3. The facts as disclosed from the record is that Rajendra Kumar Shukla is resident of village Shivramau, P.S. Ghazipur, District Fatehpur. At present he lives in House No. 92/93 LIG, Avas Vikas Colony, Civil Lines, Fatehpur. Opposite party No. 1 Vishnu Kumar Shukla and opposite party No. 2 Smt. Ansuiya Devi @ Bitti wife of Vishnu Kumar Shukla live in Mohalla Krishna colony, Hariharganj, Town Fatehpur. Vishnu Kumar Shukla is real brother of applicant Rajendra Kumar Shukla. Opposite party No. 3 Smt. Usha Devi is wife of Late Tej Kumar Shukla and lives in village Shivramau, Police Station Ghazipur, District Fatehpur. Late Tej Kumar Shukla was real brother of Rajendra Kumar Shukla and Vishnu Kumar Shukla, who died in prime of his age. They are permanent resident of village Shivramau, P.S. Ghazipur, District Fatehpur where opposite party No. 3 Smt. Usha Devi lives. Her husbands brothers Rajendra Kumar Shukla and Vishnu Kumar Shukla and their families live in Town Fatehpur.
4. The case of Rajendra Kumar Shukla is that age of Yaklendra Kumar Shukla was about 14 years in the year 2002 when the application was moved and which has been rejected by the Court below. It is alleged that Tej Kumar Shukla was real brother of Rajendra Kumar Shukla. He died during service. In order to console his widow opposite party No. 3 Smt. Usha Devi youngest son of Rajendra Kumar Shukla was left by him at the residence of Smt. Usha Devi in village Shivramau. Now Yaklendra Kumar Shukla has become of more than 17 years since he has grown up therefore there is necessity that he should live with him so that he may be properly educated and employed, therefore Application 4-A was moved which was rejected by learned Addl. District Judge, Fatehpur on 10.2.04 therefore instant appeal has been preferred.
5. Opposite party No. 3 Smt. Usha Devi filed objection and denied that Yaklendra Kumar Shukla @ Monu is son of Rajendra Kumar Shukla. It was alleged that Yaklendra Kumar Shukla @ Monu is son of Tej Kumar Shukla and she is wife of Tej Kumar Shukla. Yaklendra Kumar Shukla @ Monu was living with opposite party No. 3 but later on opposite party No. 1 and 2 brought him to Fatehpur and at present he is living with opposite party No. 1 and 2.
6. Opposite party No. 1 Vishnu Kumar Shukla and opposite party No. 2 Smt. Ansuiya Devi @ Bitti wife of Vishnu Kumar Shukla filed objection against the application that Tej Kumar Shukla died in the year 1988 when he was in Military service in New Jalpaiguri. At that time opposite party No. 3 was living at her father’s residence where she gave birth to Tej Kumar Shukla. This boy was named Ajay son of Tej Kumar Shukla instead of Yaklendra Kumar Shukla @ Monu. He is studying in 8th class and at present he is living with opposite party No. 1 and 2. After the parties filed affidavit and counter affidavit the contention of the opposite party No. 1 and 2 was believed and the application was rejected.
7. It has been submitted by learned Counsel for the appellant that under Section 4 of The Hindu Minority and Guardianship Act, 1956, a guardian means a person having the care of the person of a minor or of his property or of both, his person and property, and includes a natural guardian, a guardian appointed by the Will of the minor’s father or mother, a guardian appointed or declared by a Court. Natural guardian m
