Back
2001 Supreme(MP) 457
2001 (2) JLJ 370
V.K. Agrawal, J.
Ram Kawai Yadav v. Smt. Pratibha Yadav
Misc. Appeal No. 619 of 1999; against the order passed by I Addl. District
Judge, Shahdol, in Guardian Case No.2 of 1998; Decided on 2.8.2001.
P.N. Pathak for appellant; Pramod Verma for respondent.
Headnote:Guardians and Wards Act, 1890 -- Ss. 6/25 -- mother maintaining minor son for a long time -- minor not willing to go with father -- change in family atmosphere as well as cultural and social environment not conducive to interest of minor -- no material change in circumstances since rejection of earlier application -- prayer for custody declined -- permitte to visit minor.
Indisputably, the welfare of the minor is the paramount consideration while considering the application for appointment of guardian and custody of the minor. In the instant case, as already noticed, the mother is maintaining the minor who appears to be happy and satisfied in living with her as well as his two sisters. Moreover, the minor is unwilling to go with the appellant even for a short period. It may also be noticed that though the appellant had previously also filed an application for his appointment as guardian, the same was dismissed. The appellant has not been able to show that there is any material change in circumstances of the parties, justifying renewal of his prayer. AIR 1994 All. 147 and AIR 1983 Madras 9 distinguished. (2000) 6 SCC 598 and AIR 1989 SC 401 followed. [Para 14
laj{kd vkSj çfrikY; vf/kfu;e] 1890&/kkjk 6@25&ekrk }kjk vçkIro; iq= dk yacs le; ls Hkj.kiks"k.k&vçkIro;] firk ds lkFk tkus dk bPNqd ugha&ikfjokfjd rFkk lkaLÑfrd vkSj lkekftd okrkoj.k Hkh vçkIro; ds fgr esa lgk;d ugha&iwoZrj vkosnu dh [kkfjth ds i‘pkr~ ifjfLFkfr;ksa esa rkfRod ifjorZu ugha&vfHkj{kk dh çkFkZuk vLohÑr&vçkIro; ls feyus tkuk vuqKkrA
vfookfnr :i ls] vçkIro; dks laj{kd dh fu;qfDr vkSj vfHkj{kk ds fy, vkosnu ij fopkj djrs le; vçkIro; dk dY;k.k loksZifj fopkj.kh; gSA çLrqr ekeys esa] tSlk iwoZ esa /;ku fn;k x;k gS] vçkIro; dk Hkj.kiks"k.k ekrk }kjk fd;k tk jgk gS vkSj og ekrk ds lkFk rFkk viuh nks cguksa ds lkFk jgus esa çlUu vkSj larq"V çrhr gksrk gSA blds vfrfjDr] og vçkIro; vihykFkhZ ds lkFk FkksM+s le; ds fy, Hkh tkus ds fy, vfuPNqd gSA ;g Hkh /;ku fn;k tkuk gksxk fd ;|fi vihykFkhZ us iwoZ esa Hkh mls laj{kd fu;qDr fd, tkus ds fy, vkosnu fd;k Fkk] og [kkfjt gqvk FkkA vihykFkhZ ;g nf‘kZr ugha dj ldk gS fd çkFkZuk dk uohdj.k U;k;ksfpr fl) djus ds fy, i{kdkjksa dh ifjfLFkfr;ksa esa dksbZ rkfRod ifjorZu gqvk gSA , vkb vkj 1994 bykgkckn 147 rFkk , vkb vkj 1983 enzkl 9 çHksfnrA ¼2000½ 6 ,l lh lh 598 rFkk , vkb vkj 1989 ,l lh 401 vuqlfjrA ¿iSjk 14
1. This miscellaneous appeal is directed against Order dated 8.2.1999 in Guardian Case No. 2 of 1998 by I Additional District Judge, Shahdol, dismissing the petitioner-appellant's application under section 6 read with section 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as the Act for short), praying that he be appointed as guardian of person and property of his son, minor Harikrishan Yadav.
2. The facts not in dispute are that the parties are Hindus. The respondent is the wife of appellant. The minor Harikrishan is their son. He was born on 11.2.1987 at Shahdol. It is also not in dispute that the parties are now living separately. The petitioner-appellant had earlier also filed a petition for appointment as guardian of the minor as well as his sisters, the other children of the parties, which was registered as Guardians and Wards Case No. 5/1991. The said application was dismissed by the lower Court on 23rd November, 1992. Miscellaneous Appeal No. 73 of 1993 preferred by the petitioner-appellant was also dismissed on 29.11.1996.
3. The averments of the petitioner-appellant in his petition were that since the relations between the parties embittered, therefore, they are residing separately since a long time. The respondent had taken away their son, minor Harikrishan alongwith her to West Bengal. It was also averred that the respondent is not financially- capable to properly bring up the minor. It was averred in the above context that the respondent had filed an application under section 125 of the CrPC for maintenance of herself and her minor children, which had been ultimately allowed and maintenance has been granted to the respondent and the minor children. It was averred that the respondent is a lady of easy virtue and resides in a village. The interest of the minor would be adversely affected in case he is permitted to live with the .respondent. It was further averred that the petitioner is financially capable to properly bring up his son, minor Harikrishan and to educate him. It was, therefore, prayed that in the interest and for the welfare of the minor Harikrishan, he should be given in the custody of the petitioner-appellant.
4. The petition as above was resisted by the respondent. She denied the averments of the appellant as above. It was averred by her that the appellant used to maltreat and manhandle her. The respondent got fed up and could no longer bear the maltreatment; hence, she went back to her parents' home. It was averred that the respondent is properly bringing up her children including minor Harikrishan. The minor also does not wish to live with the appellant.
5. The learned trial Court, after consideration of the averments as above as well as after assessment of evidence placed on record, recorded a finding that the interest of the minor would be served in permitting him to continue in the custody of his mother, the respondent. Accordingly, the application filed by the petitioner-appellant was dismissed.
6. Learned counsel for the petitioner-appellant urged that he is the natural guardian being the father of the minor Harikrishan. It was also submitted that the appellant was a Government Servant and has now retired. He was, therefore, in possession of sufficient means to bring up and educate his son, minor Harikrishan. It was submitted that the respondent has no source of income and that she even filed an application for grant of maintenance under section 125 of the CrPC before the Chief Judicial Magistrate, Burdwan (West Bengal), wherein she averred that she had no means to maintain herself and her children. It was, therefore, submitted that the welfare of the minor is in giving him in the custody of the petitioner-appellant. In the alternative, it was submitted that the appellant should be granted visiting rights,
7. As noticed above, the appellant filed an application for custody of the minor children including minor Harikfishan earlier also. Said application was dismissed by
