IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE ANIL VERMA ON THE 30^th OF MAY, 2024 MISC. PETITION No. 355 of 2024 BETWEEN:-

UMESH KAITHWAS S/O SHRI SHAMLAL KAITHWAS, AGED ABOUT 32 YEARS, OCCUPATION: PRIVATE JOB 508, VINOBA NAGAR INDORE (MADHYA PRADESH)

.....PETITIONER (BY SHRI ABHINAV MALHOTRA -ADVOCATE)

AND RAJENDRA BORASI, AGED ABOUT 59 YEARS, OCCUPATION: DRIVER R/O HOUSING BOARD

1.

COLONY, BADNAGAR, DISTRICT UJJAIN (MADHYA PRADESH)

SMT. SEEMA BORASI W/O SHRI RAJENDRA BORASI, AGED ABOUT 56 YEARS, OCCUPATION:

2.

HOUSEWIFE R/O HOUSING BOARD COLONY, BADNAGAR, DIST. UJJAIN (MADHYA PRADESH)

...RESPONDENTS (BY SHRI SHUBHAM DHOLPURE – ADVOCATE)

Whether approved for reporting : YES ----------------------------------------------------------------------------------------- This petition coming on for admission this day, the court passed the following:

ORDER

1. Heard on IA No.4416/2024, which is an application for taking documents on record.

2. Documents may be relevant for proper adjudication of this petition, therefore, IA is allowed and the documents are taken on record.

3. This miscellaneous petition under Article 227 of the Constitution of India has been preferred by the petitioner being aggrieved by the impugned order dated 19.12.2023 passed in MJC GW/1/2023 by the District Judge, Badnagar, District Ujjain.

4. Brief facts of the case are that petitioner and his wife (Late Chanchal Kaithwas) belongs to the Hindu Religion and their marriage was solemnized on 23.5.2019 at Badnagar as per the Hindu rites and rituals and after the marriage they blessed with a son Nirbhay who has been born on 5.12.2021. Now he is about 2 years old. Unfortunately on

26.11.2022 petitioner’s wife Chanchal has been died.

5. Learned counsel for the petitioner contended that now the minor child Nirbhay is living with the respondents who are maternal grand- father & maternal grand-mother of Nirbhay. Petitioner being the natural guardian wishes to have the custody of his child to ensure his wellbeing, health, education and lifestyle, which is very crucial for his future and life, but the respondents denied to get back the custody of his son Nirbhay. Petitioner has made complaints against the respondents to the several police authorities, but no action has been taken. Then he preferred an application under Section 10 of the Guardians and Wards Act, 1890 (in short “Act of 1890”) before the trial court, but after hearing both the parties, trial Court has dismissed the application. The impugned order passed by the court below is against the law and facts.

Petitioner has a good job and he earns about Rs.20,000/- per month. He has sufficient bank balance and owns two houses. He is now residing in metro-city Indore. On the contrary respondents No.1 & 2 are illiterate old aged labour and they are living in the village. Their financial and social status is not sufficient enough to match the growing requirement of minor with passage of time and their behaviour towards the petitioner is extremely cruel. Hence, he prays that the impugned order be set aside and the interim custody of his minor child Nirbhay be granted to the petitioner.

6. Per contra, learned counsel for the respondents opposes the prayer and prays for its rejection by supporting the impugned order passed by the trial Court.

7. Counsel for both the parties heard at length and perused the record.

8. Relevant provisions of Hindu Minority & Guardianship Act, 1956 (hereinafter shall be referred as “Act of 1956”) are also to be taken into consideration. As per Section 2 of Act of 1956, the provisions of this Act shall be in addition to, and not, save asexpressly provided, in derogation of, the Guardian and Wards Act, 1890. Section 6 of the Act of 1956 talks about Natural Guardians of a Hindu Minor. Same is reiterated as under:-

“6. Natural guardians of a Hindu minor.- The natural guardian of a Hindu minor, in respect of the minor‟s person 5 as well as in respect of the minor‟s property (excluding his or he