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2019 Supreme(All) 2806
IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
Anil Kumar, Saurabh Lavania, JJ.
Ram Naik Misra and Ors. - Appellants
Vs.
Gauri and Ors. - Respondent
First Appeal Nos. 53 and 55 of 2018
Decided On : 27-11-2019
For the Appellant : Prabhat Kumar
For the Respondents: Ramakar Shukla
The welfare of the child is the paramount consideration in custody cases, and the wishes of the minor children should be taken into account. The natural guardian should be given visitation rights.
Headnote:
CUSTODY - FAMILY LAW - Guardians and Wards Act, Hindu Minority and Guardianship Act - Sections 4, 6, 13, 17 - The court decided the custody of minor children based on the welfare of the children, their wishes, and the capacity of the proposed guardian. The judgment emphasized the paramount consideration of the welfare of the child and the importance of the child's ordinary comfort, contentment, health, education, intellectual development, and favourable surroundings. The court also considered the wishes of the minor children in deciding the custody. The father, being the natural guardian, was given visitation rights.
Fact of the Case:
The case involved the custody of minor children, Gauri and Prakhar, following the death of their mother and the subsequent legal battles between the maternal and paternal sides of the family.
Finding of the Court:
The court found that the welfare of the children was the paramount consideration in deciding custody. The children expressed their wish to live with their maternal grandfather, who had been providing proper care and education. The court also acknowledged the father's natural guardianship rights and granted him visitation rights.
Issues: The main issue was the custody of the minor children, considering the welfare of the children, the wishes of the children, and the rights of the natural guardian.
Ratio Decidendi: The welfare of the child is the paramount consideration in custody cases. The court should consider the child's ordinary comfort, contentment, health, education, intellectual development, and favourable surroundings. The wishes of the minor children should also be taken into account. The natural guardian should be given visitation rights.
Final Decision: The court upheld the custody of the minor children with the maternal grandfather, considering the welfare of the children and their expressed wishes. The father was granted visitation rights.
JUDGMENT :
Anil Kumar and Saurabh Lavania, JJ.
1. In compliance of earlier order of this Court, appellant Sri Ram Shanker Misra, respondent Sri Satish Chandra Misra, minor children namely Ms. Gauri and Master Prakhar, are present before this Court.
Vide judgment and order dated 11.4.2018, the Principal Judge, Family Court, Sultanpur, decided two cases i.e., Civil Misc. Case No. 72 of 2010 (Ram Naik Misra and another v. Km. Gauri and others) and Civil Misc. Case No. 68 of 2009 (Satish Chandra Misra v. Ram Shanker Misra).
2. In both the above noted appeals the judgment and order dated 11.4.2018 has been challenged and as such both are being heard and decided by this judgment.
3. Heard, Sri Prabhat Kumar, learned Counsel for the appellant and Sri Ramakar Shukla, learned Counsel for the respondent.
4. Facts in brief of the present case, as per record, are that marriage between appellant No. 2/Ram Shanker Misra and Moni Misra was solemnized in the year 2002 and out of the wedlock of appellant No. 2 and Moni Misra, two children were born namely Ms. Gauri Misra and Mr. Prakhar Misra. Matrimonial relation between the appellant No. 2/Ram Shanker Misra and Moni Misra has become strained and on 2.4.2007 Moni Misra tried to commit suicide and died on 9.4.2007 at K.G.M.C. Lucknow. Thereafter, father of Moni Misra i.e., Sri Satish Chandra Misra took the minor children in his custody. On 10.4.2007 Sri Satish Chandra Misra, lodged an F.I.R. under sections 304-B/498-A and 3/4 Dowry Prohibition Act and on 17.5.2007 filed an application under section 125, Cr.P.C. for maintenance of children. The appellant No. 2/Ram Shanker Misra was taken into custody in relation to the FIR lodged by Sri Satish Chandra Misra and on 9.6.2011, the Court below has acquitted the appellant Ram Shanker Misra. During the pendency of Criminal trial against the appellant(s), Sri Satish Chandra Misra , maternal grandfather, filed a Civil Misc. Case No. 68 of 2009 under Guardian and Wards Act for appointing the guardian of minor children. The appellant No. 1/Sri Ram Naik Misra paternal grandfather, and appellant No. 2, father of minor(s) Kr. Gauri and Master Prakhar, also filed a Civil Misc. Case No. 72 of 2010 for appointing the guardian of minor children namely Ms. Gauri Misra and Master Prakhar Misra. Thereafter, Principal Judge Family Court, Sultanpur clubbed both the cases together and decided by its order dated 11.4.2018, whereby allowing the Civil Misc. Case No. 68 of 2009 filed by Sri Satish Chandra Misra and directed that custody of minor children namely Ms. Gauri Misra and Master Prakhar Misra, be given to their maternal grandfather Sri Satish Chandra Misra and dismissed the Civil Misc. Case No. 72 of 2010 filed by appellants.
5. The judgment and order dated 11.4.2018 passed by Principal Judge, Family Court, Sultanpur is in issue.
6. Sri Prabhat Kumar, learned Counsel for the appellants challenging the judgment and order dated 11.4.2018 submitted that in the present case, father being the natural guardian of the minor children namely Ms. Gauri Misra and Master Prakhar Misra, custody shall be given to him, however, ignoring the said fact, the Court below has dismissed the case of appellants. He further submitted that since 2007 both the children are living with their maternal grandfather ¼ukuk½ Sri Satish Chandra Misra and both the children have been influenced by maternal grandfather ¼ukuk½Sri Satish Chandra Misra and this fact has not been considered by the Court below and in an arbitrary and illegal manner the Court below has passed the order dated 11.4.2018 which is liable to be set aside. In support of his submission he has placed reliance on the judgment of Hon'ble Apex Court in the case of Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others in Criminal Appeal No. 838 of 2019. The relevant paragraph Nos. 34 to 36 are quoted below:
"34. This Court in Surinder Kaur Sandhu case [Surinder Kaur Sandhu v. Harbax Singh Sandhu (1984) 3 SCC 698 : 1984 SCC (C
