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2025 Supreme(MP) 917
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
VISHAL DHAGAT, B.P.SHARMA, JJ.
Dr. Pratibha URF Sonu -Appellant
Versus
Dr. Manish Borasi – Respondent
First Appeal No. 529 of 2025
Decided On : 19-11-2025
For the Appellant :Shri Pradeep Kumar Naveria, Advocate
For the Respondent:Shri Utkarsh Kumar Sonkar, Advocate.
Headnote:
Guardians and Wards Act, 1890 -- Ss. 39, 26, 6 and 42 -- removal of guardian -- consent decree of divorce passed between parties -- custody of child remained with appellant mother and respondent father had visitation rights -- father filed application for removal of guardian and custody of child -- he successfully established that mother violated terms and conditions of decree governing custody and visitation, particularly by removing minor from Bhopal without prior permission of Court; withholding information regarding her residence, schooling and welfare; and by obstructing regular communication between minor and her father -- failed to safeguard emotional, educational and social development of child -- Counsellor’s report records that minor would benefit from father’s active participation in her upbringing -- father’s involvement is essential for holistic growth of child -- exclusive control exercised by mother neither conducive to her welfare, nor in accordance with earlier directions of trial Court -- mother violated conditions imposed in main divorce application, thus giving rise to termination of guardianship as envisaged u/s. 39(a), (c), (d), (h) of Guardians and Wards Act -- she acted in breach of custody and visitation conditions, warranting appropriate modification of custody/visitation arrangements in best interest of minor as given u/s. 6 and 42 of Guardians and Wards Act -- mother neglected, ill-treated child and is acting contrary to faithful performance of her duties as guardian -- termination of guardianship of mother by trial Court warrants no interference -- she shall be at liberty to approach trial Court for grant or regulation of visitation rights. (2012) 12 SCC 471 followed. [Paras 24 to 26]
laj{kd vkSj çfrikY; vf/kfu;e] 1890 & /kkjk 39] 26] 6 rFkk 42 & laj{kd dk gVk;k tkuk & i{kdkjksa ds e/; lEefr ls fookg&foPNsn dh fMØh ikfjr & ckfydk dh vfHkj{kk vihykfFkZuh ekrk ds ikl jgh rFkk çR;FkhZ firk dks HksaV ds vf/kdkj Fks & firk us laj{kd gVk, tkus vkSj ckfydk dh vfHkj{kk fn, tkus ds fy, vkosnu fd;k & mlus lQyrkiwoZd LFkkfir fd;k fd ekrk us vfHkj{kk vkSj HksaV fofu;fer djus okyh fMØh ds fuca/kuksa vkSj 'krksZ dk vfrØe.k fd;k] fof'k"Vr% vçkIro; dks U;k;ky; dh iwoZ vuqefr ds fcuk Hkksiky ls gVk dj] mlds fuokl] v/;;u ,oa dY;k.k ds laca/k esa tkudkjh nckdj rFkk vçkIro; vkSj mlds firk ds e/; fu;fer laokn esa ck/kk Mkydj & ckfydk ds HkkoukRed 'kS{kf.kd vkSj lkekftd fodkl dh lqj{kk djus esa vlQy jgh & ijke'kZnkrk ds çfrosnu esa vfHkfyf[kr fd ykyu&ikyu esa firk dh lfØ; Hkkxhnkjh ls vçkIro; dks ykHk gksxk & ckfydk ds lokZxh.k fodkl ds fy, firk dk tqM+ko vfuok;Z gS & ekrk }kjk ç;qä vuU; fu;a=.k u rks mlds dY;k.k ds fy, fgrdj] u fopkj.k U;k;ky; ds iwfoZd funs'kksa ds vuqlkj gh & ekrk us eq[; fookg&foPNsn vkosnu esa vf/kjksfir 'krksZ dk vfrØe.k fd;k] bl çdkj laj{kd vkSj çfrikY; vf/kfu;e dh /kkjk 39¼d½] ¼x½] ¼?k½] ¼t½ ds v/khu ;Fkk ifjdfYir laj{kdRo ds i;Zolku dk dkj.k xfBr gqvk & mlus vfHkj{kk vkSj HksaV dh 'krksZ dk Hkax djrs gq, dk;Z fd;k] ftlls vçkIro; ds loksZÙke fgr esa laj{kd vkSj çfrikY; vf/kfu;e dh /kkjk 6 vkSj 42 ds v/khu fn, x, vuqlkj vfHkj{kk@HksaV O;oLFkk dk leqfpr mikarj.k okaNuh; gks x;k & ekrk us ckfydk dh mis{kk dh mlls nqO;Zogkj fd;k vkSj og laj{kd ds :i esa vius drZO;ksa ds fu"Bkoku ikyu ds çfrdwy dk;Z dj jgh gS & fopkj.k U;k;ky; }kjk ekrk dk laj{kdRo i;Zoflr fd, tkus esa gLr{ksi okafNr ugha & mls HksaV ds vf/kdkjksa ds çnku ;k fofu;eu ds fy, fopkj.k U;k;ky; tkus dh Lora=rk gksxhA ¼2012½12 ,llhlh 471 vuqlfjrA ¼iSjk 24 ls 26½
ORDER :
B.P. Sharma, J.
Appellant has filed this appeal under Section 19 of Family Court Act, 1984 read with Section 47 of the Guardians and Wards Act, 1890 against judgment and decree dated 27.09.2024 passed by Ist Additional Principal Judge, Family Court, Bhopal (MP) in MJC-GW- 34/2024 whereby an application under Section 39 of the Guardians and Wards Act, 1890 (hereinafter referred to as the "Act of 1890") filed by the respondent has been allowed.
2. Briefly stated, the case of the appellant before the Trial Court was that her marriage with the respondent was solemnized on 10.12.2012 and out of the said wedlock a daughter, namely Jainisha, was born on 05.12.2018. Due to marital disputes between the parties, the appellant instituted proceedings for divorce as well as an application for guardianship of the minor child under Section 7 of the Act of 1890. During the pendency of the said proceedings, mediation was conducted in October 2022 before the then Ist Additional Principal Judge, Family Court, Bhopal, wherein the parties arrived at a written settlement. At that time, the child was less than five years old. Accordingly, visitation rights were settled between the parties and, based on their joint application containing mutually agreed terms, a consent decree was passed in Miscellaneous Case No. 29/2020 on 05.11.2022 by the then Ist Additional Principal Judge, Family Court, Bhopal.
3. It was alleged that the appellant thereafter violated the terms of the compromise decree, whereupon the respondent filed a petition under Section 39 of the Act of 1890 seeking cancellation of the appellant’s guardianship of minor Jainisha and seeking custody of the child. The appellant initially appeared before the Trial Court but subsequently stopped appearing and did not file any reply; therefore, she was proceeded ex-parte. Relying upon the pleadings and evidence adduced by the respondent, the learned Family Court passed the impugned judgment and decree dated 27.09.2024, allowing the respondent’s application under Section 39 of the Act, 1890 and cancelling the appellant’s guardianship, and consequently granting guardianship of the minor to the respondent-Father.
4. Learned counsel for the appellant submitted that the Trial Court failed to appreciate that the respondent did not prove any of the four grounds pleaded in the application under Section 39(d), (e), (g) and (h) of the Act of 1890. Despite absence of any such proof, the application was erroneously allowed. It is submitted that the respondent, both in the application and in his deposition, levelled unfounded and false allegations against the appellant, which the Trial Court accepted without any justifiable basis.
5. Learned counsel further submitted that the Trial Court ignored the well- settled principle that the burden lies upon the party seeking cancellation of guardianship to establish cogent and convincing grounds for such cancellation. In the present case, the respondent failed to establish any circumstance warranting cancellation of the appellant’s guardianship. In the absence of any proven ground, there was no justification for the Trial Court to cancel the appellant’s guardianship and confer the same upon the respondent. It is argued that the Trial Court did not consider that the child was born out of the wedlock and was in custody of the appellant, and that the welfare of the child is of paramount consideration. On these submissions, it is urged that the impugned judgment dated 27.09.2024 is arbitrary, unjust and contrary to settled legal principles and is therefore liable to be set aside.
6. Per contra, learned counsel for the respondent submitted that earlier the Trial Court had granted a consent decree in favour of the appellant; however, the appellant violated the terms and conditions of the consent decree dated 05.11.2022. The respondent therefore assailed the said decree before the Trial Court. Upon consideration of the material on record and the evidence adduced, the Trial C
