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2016 Supreme(MP) 810
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BENCH
R.S. Jha, Rajendra Mahajan, JJ.
Rajendra Singh Parmar S/o Late Shri Madho Singh Parmar – Applicant
Versus
Smt. Rajendra Kumari W/o Shri Narendra Pratap Singh – Respondent
M.A. No. 1743 of 2015
Decided On : 17-08-2016
For the Applicants : Shri Ajay Mishra and Shri Laven Arora.
For the Respondent: Shri P.N. Sahu.
The welfare of the minor is the paramount consideration in appointing guardians, as mandated by the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act 1956.
Headnote:
Guardians and Wards Act - Welfare of Minor - Section 7 of the Guardians and Wards Act, 1890, Section 13 of the Hindu Minority and Guardianship Act 1956 - The court considered the welfare of the minor as the paramount consideration in appointing the guardians. The court emphasized the importance of the welfare of the minor and highlighted key legal provisions from various cases to support its decision.
Fact of the Case:
The case involved a dispute over the guardianship of a minor girl, Karnika, following the death of her parents. The applicants, paternal grandparents, sought custody of the minor, alleging that the maternal grandfather, the non-applicant, was unfit to care for her. The trial court appointed the applicants as guardians, leading to the non-applicant's appeal.
Finding of the Court:
The court found that the welfare of the minor was paramount and that the applicants were better suited to provide a stable and caring environment for the minor. It also noted the unsuitability of the non-applicant as a guardian due to his involvement in the suicide of the minor's parents.
Issues: The main issue was the determination of the guardianship of the minor girl, Karnika, following the death of her parents. The court also addressed the non-applicant's request for retrial and visitation rights.
Ratio Decidendi: The court held that the welfare of the minor is the paramount consideration in appointing guardians, as mandated by Section 7 of the Guardians and Wards Act, 1890 and Section 13 of the Hindu Minority and Guardianship Act 1956. It emphasized the importance of providing a stable and caring environment for the minor, considering her best interests.
Final Decision: The court affirmed the appointment of the applicants as guardians of the minor, with the addition of visitation rights for the non-applicant and his family members. It directed the non-applicant to hand over custody of the minor and dismissed the appeal, with each party bearing their own costs of litigation.
Rajendra Mahajan, J.
1. The appellant has preferred this appeal under Section 47 of the Guardians and Wards Act, 1890 (hereinafter referred to as the Act) being aggrieved by and dissatisfied with the order dated 10.07.2015 passed by the Additional Sessions Judge, Begumganj, district Raisen, in Guardian Case No. 40A/13 titled Rajendra Kumari (Smt.) and Another vs. Rajendra Singh, whereby the learned trial Judge has appointed the respondents as guardians of minor girl Ku. Karnika aged about 5 years and directed the appellant to hand over her custody to them by allowing their application under Section 7 of the Act.
2. For the sake of convenience, the appellant and the respondents are hereinafter referred to as the non-applicant and the applicants respectively as per their status in the trial court.
3. The case of the applicants in brief is that Krishna Pratap Singh @ Chhoteraja was their youngest son. On 19.02.2007, he was married to Radhika Raje @ Ritu Raje, the daughter of the non-applicant, as per Hindu religion and wedding rites and customs prevailing in their caste. From their wedlock, Radhika gave birth to a girl-child named Karnika on 04.03.2011. At the time of filing of the application in the trial court, her age was about 3 years.
4. It is alleged by them that some months into the marriage, the non-applicant and Radhika subjected Krishna Pratap Singh to torture, harass, ill-treat and assault with an objective to force him to live with the family members of the non-applicant at Shivpuri giving up the company of his parents. They also pressurised him to give them his earnings threatening to send him behind the bars. On 29.09.2015, Radhika with minor Karnika left her matrimonial home without informing Krishna Pratap Singh and any other member of their family. As a result, Krishna Pratap Singh and they searched for Radhika and minor Karnika. Two days later, the non-applicant made a call to Krishna Pratap Singh to come over to Shivpuri. There, the non-applicant and Suresh Sikarwar, the then Sub Divisional Police Officer of Shivpuri, badly humiliated him and got him thrashed. On account of humiliation and torture meted out to him at their hands, he committed suicide before a running train on 10.07.2012, leaving a suicide note in which he has held the non-applicant, said Suresh Sikarwar and his wife Radhika responsible for his suicidal death. Thereupon, a criminal case against them for the commission of offences punishable under Sections 306, 341 and 34 of the IPC is registered at the Police Station Chhola Ka Mandir, Bhopal at Crime No. 537/ 2012.
5. It is claimed by the applicants that it was dying wish of Krishna Pratap Singh that minor Karnika would live under their care, love and affection. To fulfil his wish, they went to Shivpuri with an objective to bring her with them. There, an understanding was arrived at between them on the one side and the non-applicant and Radhika on the other. According to this understanding, they would bring minor Karnika up and, therefore, they brought her with them. Thereafter, their elder son Shiv Pratap Singh and his wife and they have started raising minor Karnika with love and affection and proper care. She was happy with them forgetting her mother Radhika. Six or seven months before filing of the application, the non-applicant came over to their place of residence and told them that Radhika was seriously ill and that she wanted to keep minor Karnika with her. At that time, he assured them that he would send minor Karnika back after Radhika's recovery from illness. Upon his assurance, they allowed the non-applicant to take minor Karnika with him. Some time later, the non-applicant had totally stopped communicating with them. Thus, the non-applicant had taken minor Karnika away from them by deception. It is asserted by them that no legal action against the non-applicant was initiated by them as they find solace in the fact that minor Karnika has been living in the care, love and affection
