REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2817 OF 2008
Shyamrao Maroti Korwate .... Appellant (s)
Versus
Deepak Kisanrao Tekam .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) This appeal, pertaining to the custody of a minor
child, is directed against the final judgment and order
dated 17.10.2007 passed by the High Court of Judicature
at Bombay, Nagpur Bench, Nagpur in First appeal No. 501
of 2007 whereby the High Court reversed the judgment
and order dated 16.04.2007 passed by the District Judge,
Yavatmal, Maharashtra.
12) Brief facts:
(a) On 03.06.2002, the marriage of the respondent was
solemnized with Kaveri, the daughter of the appellant
herein. Out of the said wedlock, on 23.03.2003, a son,
namely, Vishwajeet @ Sangharsh was born. After giving
birth to son, on the same day, the respondent’s wife died
due to excessive bleeding. Vishwajeet is residing with the
appellant–maternal grandfather and his family since his
birth. After the death of his wife, the respondent
contracted second marriage and also has a son from the
second marriage.
(b) On 07.08.2003, the appellant–maternal grandfather
of the minor filed an application in the Court of District
Judge II, Yavatmal, Maharashtra under Section 7 of the
Guardians and Wards Act, 1890 (hereinafter referred to as
‘Act 1890’) being M.J.C. No. 10 of 2003 for appointing him
as guardian of the minor Vishwajeet. The said application
was opposed by the respondent and, on 15.10.2003, he
also filed an application under Section 25 of the Act 1890
2being M.J.C. No. 12 of 2003 for the custody of his son.
The District Judge by a common judgment dated
16.04.2007 in both the proceedings, allowed the
application filed by the appellant herein and appointed
him as a Guardian of Vishwajeet till he attains the age of
12 years and directed him to deposit the amounts
inheritable by the minor due to the demise of his mother,
in any Nationalized Bank in Fixed deposit in the name of
minor, which may be renewed from time to time till he
attains majority and also directed that nobody can
withdraw the principal or interest amount without prior
permission of the Court. The District Judge further
directed the newly appointed guardian to allow the
respondent-father to meet the minor once in a month. The
application filed by the respondent was dismissed by the
District Judge with the liberty to file such application after
completion of the age of 12 years by the minor.
(c) Aggrieved by the said order, the respondent herein
filed First Appeal No. 501 of 2007 in the High Court of
3Bombay, Nagpur Bench, Nagpur. On 17.10.2007, the
learned single Judge of the High Court allowed the appeal
filed by the respondent herein and directed the appellant
herein to hand over the custody of the child to the
respondent. Challenging the said order, the appellant has
preferred this appeal by way of special leave petition
before this Court.
3) Heard Mr. Anantbhushan Kanade, learned senior
counsel for the appellant and Ms. Anagha S. Desai,
learned counsel for the respondent.
4) The appellant herein is the maternal grandfather of
the child and the respondent is the father of the child.
Since we have already narrated the events for filing the
petition for custody/guardian of the child, there is no need
to traverse the same once again. Before considering the
claim of both sides, it is useful to refer the statutory
provisions relevant for our purpose.
5) The Act 1890 consolidates and amends the law
relating to guardians and wards. Section 4 of the Act
4defines “minor” as “a person who has not attained the age
of majority”. “Guardian” means “a person having the care
of the person of a minor or of his property, or of both his
person and property”. “Ward” is defined as “a minor for
whose person or property or both there is a guardian”.
Sections 5 to 19 of the Act relate to appointment and
declaration of guardians. Section 7 thereof deals with
“power of the Court to make order as to guardianship”
which reads as under:
“7. Power of the court to make order as to guardianship.
—(1) Where the court is satisfied that it is for the welfare of a
minor that an order should be made—
(a) appointing a guardian of his person or property, or both,
or
(b) declaring a person to be such a guardian, the court may
make an order accordingly.
(2) An order under this section shall imply the removal of
any guardian who has not been appointed by will or other
instrument or appointed or declared by the court.
(3) Where a guardian has been appointed by will or other
instrument or appointed or declared by the Court, an order
under this section appointing or declaring another person to
be guardian in his stead shall not be made until the powers
of the guardian appointed or declared as aforesaid have
ceased under the provisions of this Act.”
6) Section 8 of the Act 1890 enumerates persons
entitled to apply for an order as to guardianship. Section
59 empowers the Court having jurisdiction to entertain
application for guardianship. Sections 10 to 16 deal with
procedure and powers of Court. Section 17 is another
material provision and may be reproduced hereunder:
“17. Matters to be considered by the court in appointing
guardian.—(1) In appointing or declaring the guardian of a
minor, the court shall, subject to the provisions of this
section, be guided by what, consistently with the law to
which the minor is subject, appears in the circumstances to
be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor,
the Court shall have regard to the age, sex and religion of the
minor, the character and capacity of the proposed guardian
and his nearness of kin to the minor, the wishes, if any, of a
deceased parent, and any existing or previous relations of
the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent
preference, the court may consider that preference.
Xxx xxx xxx
(5) The Court shall not appoint or declare any person to be a
guardian against his will.”
7) The Hindu Minority and Guardianship Act, 1956
(hereinafter referred to as ‘Act 1956’) is another important
statute relating to minority and guardianship among the
Hindus. Section 4 defines “minor” as “a person who has
not completed the age of eighteen years”. “Guardian”
means “a person having the care of the person of a minor
or of his property or of both his person and property”, and
6includes a “Natural guardian”. “Natural guardian” means
any of the guardians mentioned in Section 6 of the Act
1956.
8) Section 6 enacts as to who can be said to be a
“Natural guardian”. It reads thus:
“6. Natural guardians of a Hindu minor.—The natural
guardians of a Hindu minor, in respect of the minor’s
person as well as in respect of the minor’s property
(excluding his or her undivided interest in joint family
property), are—
(a) in the case of a boy or an unmarried girl — the
father, and after him, the mother: Provided that the
custody of a minor who has not completed the age of
five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate
unmarried girl — the mother, and after her, the
father;
(c) in the case of a married girl — the husband:
Provided that no person shall be entitled to act as the
natural guardian of a minor under the provisions of
this section—
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the
world by becoming a hermit (vanaprastha) or an
ascetic (yati or sanyasi).
Explanation.—In this section, the expressions ‘father’
and ‘mother’ do not include a stepfather and a
stepmother.”
79) Section 8 thereof enumerates powers of natural
guardian and Section 13 deals with welfare of minor
which reads thus:
“13. Welfare of minor to be paramount
consideration.—
(1) In the appointment or declaration of any person as
guardian of a Hindu minor by a court, the welfare of the
minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by
virtue of the provisions of this Act or of any law relating
to guardianship in marriage among Hindus, if the court
is of opinion that his or her guardianship will not be for
the welfare of the minor.”
10) If we analyze the above provisions, one thing is clear
that in a matter of custody of a minor child, the
paramount consideration is the “welfare of the minor” and
not rights of the parents or relatives under a statute which
are in force. The word “welfare” used in Section 13 of the
Act 1956 has to be construed literally and must be taken
in its widest sense.
11) In Gaurav Nagpal vs. Sumedha Nagpal, (2009) 1
SCC 42, this Court held:
“51. The word “welfare” used in Section 13 of the Act has to
be construed literally and must be taken in its widest sense.
The moral and ethical welfare of the child must also weigh
with the court as well as its physical well-being. Though the
provisions of the special statutes which govern the rights of
8the parents or guardians may be taken into consideration,
there is nothing which can stand in the way of the court
exercising its parens patriae jurisdiction arising in such
cases.”
12) In the light of the above background, let us consider
whether the custody of the minor is to be entrusted with
the maternal grandfather as ordered by the District Court
or with the father as directed by the High Court. We have
already referred to the fact that on 23.03.2003, after
giving birth to the child, the mother died and the child
was taken by the maternal grandfather. The maternal
grand-father filed a petition for custody on 07.08.2003
and father also made a similar petition for custody on
15.10.2003. Before the District Judge, it was highlighted
that immediately after the death of his wife, the
respondent-husband married another woman and also
has a son from his second marriage. Though the exact
date of marriage is not mentioned anywhere, the fact
remains that within a period of one year after the death of
Kaveri, daughter of the appellant herein, the respondent-
husband married another woman. It is also highlighted
9by the appellant that the respondent is working as an
Operator in the Maharashtra State Electricity Board at a
distance of 90 kms from his residence. It is further stated
that the place where respondent is residing is a rural
village and there is lack of better educational facilities. It
is the claim of the maternal grandfather that he is a
pensioner getting sizeable income by way of pension and
other retiral benefits and also own agricultural properties.
It is his further claim that he is living with his wife i.e.
maternal grandmother of the child and other relatives
such as sons and a daughter. It is also his claim that he
is residing in a Taluk Centre where good educational
facilities are available.
13) Though several allegations have been made by the
parties against each other, we feel that in the absence of
any specific finding by the Courts below on either of them,
it is unnecessary to refer to the same. It is true that
under the Act 1890, the father is the guardian of the
minor child until he is found unfit to be a guardian of the
10minor. In deciding such question, this Court consistently
held that the welfare of the minor child is the paramount
consideration and such a question cannot be decided
merely on the basis of the rights of the parties under the
law. This principle is reiterated in Anjali Kapoor (Smt.)
vs. Rajiv Baijal, (2009) 7 SCC 322.
14) Though father is the natural guardian in respect of a
minor child, taking note of the fact that welfare of the
minor to be of paramount consideration inasmuch as the
respondent-father got married within a year after the
death of his first wife-Kaveri and also having a son
through the second marriage, residing in a rural village,
working at a distance of 90 kms and of the fact that the
child was all along with the maternal grand-father and his
family since birth, residing in a Taluka Centre where the
child is getting good education, we feel that the District
Judge was justified in appointing the appellant maternal
grandfather as guardian of the minor child till the age of
12 years.
1115) The High Court reversed the said conclusion and
appointed father of the child as his guardian. It is true
that the learned single Judge interacted with both the
parties and the child separately and noted that “the child
could not be unhappy, uncomfortable and unsafe in the
custody of the father”. However, there is no material to
show that at any point of time the respondent-father had
attempted to meet the child when he was in the custody of
maternal grandfather. No doubt, it is true that on
attaining the age of 12 years by the minor, the father is
free to make a fresh application and depending on the
welfare and wish of the child, further order has to be
passed in the matter of custody. It is said that as on date,
the child is aged about 8 years. Our anxiety is that after
four years, i.e., after attaining the age of 12 years whether
the child would show any inclination to join with his
father. It is relevant to note that the maternal grandfather
is aged about 63 years and if his sons are married,
12undoubtedly the child cannot get the same love and
affection from him and his family.
16) Inasmuch as the child has continuously been living
with the maternal grandfather and his family from the
date of his birth i.e. 23.03.2003 and getting good
education at their hands, taking note of the position of the
father of the child who is working 90 kms. away from his
house in a rural village, we modify the order of the High
Court and permit the appellant grandfather to have the
custody of the child Vishwajeet @ Sangharsh till the age of
12 years as ordered by the District Judge. The above
conclusion is based on welfare of the minor as provided in
Section 13 of the Act 1956. Since on completion of 12
years, a fresh decision is to be taken about entrusting the
custody of the minor child, while modifying the order of
the High Court as mentioned above, we issue the following
directions about the visitation rights of the father:
1) During long holidays/vacations covering more
than two weeks the child will be allowed to be in
13the company of the father for a period of seven
days.
(2) The period shall be fixed by the father after
due intimation to the maternal grandfather who
shall permit the child to go with the father for
the aforesaid period.
(3) In addition to the same, twice in a month
preferably on Saturday or Sunday or a festival
day, maternal grand-father shall allow the child
to visit the father from morning to evening.
Father shall take the child and leave him back
at the maternal grand-father’s place on such
days.’
(4) The father is free to provide facilities such as
payment of school fees, books, dress materials,
eatables etc. during this period to develop a
conducive relationship with the child.
1417) With the above direction, the impugned order of the
High Court is modified. The appellant-maternal
grandfather is permitted to continue the custody of the
child till the age of 12 years as ordered by the District
Judge. The decision regarding investment in the name of
minor child is also restored. To the extent mentioned
above, the appeal is allowed. No costs.
...…………………………………J.
(P. SATHASIVAM)
...…………………………………J.
(DR. B.S. CHAUHAN)
NEW DELHI;
SEPTEMBER 14, 2010.
15
Tuesday, September 14, 2010
Welfare of child is of utmost importance in giving custody: SC – custody denied to Father but given to maternal grandparents
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