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2018 Supreme(MP) 588
IN THE HIGH COURT OF MADHYA PRADESH
(DIVISION BENCH)
R. S. Jha and Sanjay Dwivedi, JJ.
Chaganlal Mansoriya v. Ajay Kewat and another
Miscellaneous Appeal No. 980 of 2018 (Jabalpur); against the order dated 31.1.2018 passed by the Second Additional Principal Judge, Family Court, Jabalpur in Guardians and Wards Case No. 4 of 2016; Decided on 5.9.2018
Deepak Yadav for appellant;
D. S. Baghel and Harsh Gupta for respondents.
Headnote:(1) Guardians and Wards Act, 1890 -- S. 25 -- child stayed in father's house since birth till criminal complaint and case filed by maternal grandfather after unnatural death of his mother -- all the family members of father taken into custody -- nobody to look after child -- father handed over child to maternal grandfather -- paid him Rs. 4,50,000/-- for that purpose -- subsequently, father acquitted -- he is the statutorily recognized guardian of the child -- being natural father of child, is capable and has right to custody of child as well as right to bring up child in his own family at his parental house -- more so as he does not suffer from any such kind of insurmountable disqualification which would render him incapable of doing so or would result in any kind of adverse impact or effect on the child -- it is in the interest of child that he is restored in his parental house with his father at the earliest. [Paras 11 to 15
(2) Guardians and Wards Act, 1890 -- S. 25 -- to ensure compliance of order regarding handing over custody of child -- directions issued to Superintendent of Police and Collector. [Para 16
¼1½ laj{kd vkSj izfrikY; vf/kfu;e] 1890 && /kkjk 25 && ckyd tUe ls] mldh ekrk dh vizkÑfrd e`R;q ij ekrkeg }kjk vkijkf/kd ifjokn vkSj izdj.k Qkby fd, tkus rd] vius firk ds ?kj esa jgk && firk ds ifjokj ds lHkh lnL; vfHkj{kk esa ys fy, x, && ckyd dh ns[kjs[k ds fy, dksbZ ugha && firk us ckyd ekrkeg dks lkSai fn;k && bl iz;kstu gsrq #-4]50]000@& lanÙk fd, && rnuarj firk nks"keqDr && og ckyd dk dkuwuh :i ls ekU;rkizkIr laj{kd gS && ckyd dk uSlfxZd firk gksus ds dkj.k leFkZ gS vkSj ckyd dh vfHkj{kk dk vfèkdkj gksus ds lkFk gh mls ckyd dk ykyu&ikyu mlds iSr`d ?kj esa mlds Lo;a ds ifjokj esa djus dk Hkh vf/kdkj gS && rc vkSj Hkh tc og bl izdkj dh fdlh vya?; fujgZrk ls xzLr ugha gS ftlls og ,slk djus esa vleFkZ gks vFkok tks ckyd ij fdlh izdkj ds izfrdwy vlj ;k izHkko esa ifj.kr gks && ;g ckyd ds fgr esa gS fd mls 'kh?kzkfr'kh?kz mlds iSr`d ?kj esa mlds firk ds ikl okil igq¡pk;k tk,A ¼iSjk 11 ls 15
¼2½ laj{kd vkSj izfrikY; vf/kfu;e] 1890 && /kkjk 25 && ckyd dh vfHkj{kk lkSaius ds ckjs esa vkns'k dk vuqikyu lqfuf'pr djus ds fy, iqfyl vèkh{kd vkSj dysDVj dks funs'k tkjhA ¼iSjk 16
1. Parties as ordered by this Court are present in the Court personally alongwith the child.
2. The learned counsel for the parties are heard finally.
3. This appeal has been filed by the appellant being aggrieved by order dated 31.1.2018 passed by the Second Additional Principal Judge, Family Court, Jabalpur in Guardians and Wards Case No. 4/2016, whereby the application filed by the respondent under section 25 of the Guardianship and Wards Act, has been allowed and the custody of the child Daksh has been directed to be handed over to the respondent father.
4. The appellant who is the maternal grand father of the child has filed this appeal alleging that the respondent was married to his daughter Dimple. Thereafter, she died in an unnatural circumstances on 26.8.2014 after the birth of the child Daksh. It is stated that the appellant filed an FIR against the respondent in respect of the death of his daughter pursuant to which the respondent was confined to jail. It is submitted that at that point of time as there was nobody to look after the infant child, the appellant and the father of the respondent agreed that the child should be kept in the custody of the appellant. It is submitted that for this purpose they had also entered into an agreement on 2.2.2015. It is submitted that in the agreement, the father of the respondent had also agreed to pay a sum of Rs.4,50,000/- for the upkeep of the child. It is submitted that subsequently the respondent was acquitted in the criminal proceedings and thereafter, he has filed an application for custody and guardianship of the child which has been allowed by the trial Court by the impugned order dated 31.1.2018, hence, this appeal.
5. The learned counsel for the appellant submits that the Court below has failed to take into consideration the fact that the respondent was a person who was criminally prosecuted for allegedly committing the murder of his wife and daughter of the appellant and therefore, it is against the interest of the child to be kept in the guardianship of such a person. It is further submitted that the respondent is a person who is working and in such circumstances, there is nobody in his house to look after the child and therefore, in case, the impugned order is upheld and the child is directed to be handed over to the respondent, there would be nobody to look after him which would be detrimental to his interest.
6. The learned counsel for the petitioner further submits that in such cases, it is the interest of the child that is to be kept in mind and as the interest of the child lies in remaining in the custody of the appellant, therefore, the impugned order be set aside and the custody of the child be directed to be continued with the appellant.
7. The learned counsel for the respondent per contra submits that the respondent is the father of the child Daksh and is the statutorily recognized guardian of the child under the law. He further submits that the respondent was falsely prosecuted by the appellant by making false allegations regarding committing the murder of his wife. It is stated that the respondent has been acquitted by the trial Court and has thereafter sought the custody of the child. It is submitted that during the intervening period when the respondent was in jail an arrangement had been made by his father with the appellant for looking after the welfare of the child which was without his consent and does not in any way dilute or wash away his statutory right as the natural guardian of his son.
8. He submits that on his acquittal, his criminal background is wiped out and, therefore, the allegations that he has a criminal background, is misplaced and misconceived and as every father, is a working father, the mere fact that he is working does not disqualify him from having the custody of his son.
9. It is submitted that the child Daksh being the son of the respondent, his interest lies in staying with him and there would be no better person than the
