IN THE HIGH COURT OF JHARKHAND AT RANCHI F.A. No. 227 of 2012 With I.A. No. 1577 of 2014 With I.A. No. 1578 of 2014 With I.A. No.6102 of 2014 ------- 1. Mrs. Khursheeda Khatoon, widow of Late Motiur Rahman 2. Rahmatur Rahman, son of Late Motiur Rahman 3. Nausadur Rahman, son of Late Motiur Rahman 4. Irshadur Rahman, son of Late Motiur Rahman 5. Sadaur Rahman son of Late Motiur Rahman, All resident of C/o. M/s. Perfect Engg. Works, Maulana Azad Lane, Near Mehdi Hassan Chowk Barhampura, P.O. & P.S. Barhampura, District-Muzaffarpur, Bihar. ... Appellants/opp. parties Versus Md. Shaid Aktar, son of Md. Akhtarul Hussan resident of Arbind Nagar, P.O. & P.S. Doranda, District-Ranchi. ... Respondent/Petitioner ------ CORAM: HON’BLE MR. JUSTICE D.N. PATEL HON’BLE MR. JUSTICE PRAMATH PATNAIK ------ For the Appellants : Mr. Kalyan Banerjee, Advocate For the Respondent : M/s. Sohail Anwar, Senior Advocate, Afaque Ahmad, Shivani Verma & Altaf Hussain, Advocates ------ 05/Dated:
11. h February, 2015 Oral Order Per D.N. Patel, J.: I.A. No. 1577 of 2014:
1. This interlocutory application has been preferred by the appellants for condoning the delay of 28 days in preferring the First Appeal. .
2. Having heard learned counsel for both the sides and looking to the reasons, given in paragraph nos. 4, 5 and 6 of the interlocutory application, there are sufficient reasons to condone the delay of 28 days in preferring the instant Appeal.
2. 3. Accordingly, delay in filing the instant First Appeal is hereby condoned. I.A. No. 1577 of 2014 stands disposed of. F.A. No. 227 of 2012:
4. The instant First Appeal has been preferred by the appellants (original opposite parties in Guardianship Case No.50 of 2007) against the judgment and order, passed in Guardianship Case No. 50 of 2007 dated 10 th September, 2012, whereby the application preferred by the husband (respondent here) under Section 25 and 10 of the Guardians and Wards Act, 1890, has been allowed by the Principal Judge, Family Court, Ranchi and the custody of minor son of the respondent, namely, Ehab Shahid has been directed to be handed over to the respondent and, therefore, the original opposite parties have preferred this First Appeal.
5. Learned counsel appearing for the appellants has submitted that appellant no.1 is maternal-grand-mother of the child, namely, Ehab Shahid and rest of the appellants i.e. appellant nos. 2 to 5 are the maternal uncles of Ehab Shahid. These appellants are having custody of the minor boy Ehab Shahid, since long i.e. since the death of his mother, who was wife of the respondent (applicant in Guardianship Case No.50/2007).
6. It is submitted by the learned counsel for the appellants that minor boy Ehab Shahid is staying nicely with these appellants are he is also studying in the school at Muzaffarpur, Bihar. The welfare of the minor is with these appellants and 3. proper education is also being provided to the minor. All the needs of the minor are being fulfilled or supplied by these appellants whereas if the custody is to be given to the respondent (original applicant), the minor boy, namely, Ehab Shahid will not get proper education and the welfare of the minor boy will not be with the respondent, if the custody is given to him.
7. Learned counsel for the appellants has also relied upon a decision, rendered by the Hon’ble Supreme Court in the case of Shyamrao Maroti Korwate v. Deepak Kisanrao Tekam, as reported in 2011(1) JCR264(SC). Relying upon the aforesaid decision, it is submitted by the learned counsel for the appellants that in the aforesaid decided case of the Hon'ble Supreme Court even though father of the minor boy applied for the custody of his son, it was not given and it was retained by the in-laws of the husband. It it further submitted that the facts of the present case are similar to the aforesaid decided case and, therefore, instead of giving custody of the minor boy, namely, Ehab Shahid, to the respondent/appellant, it may be allowed to be retained by these appellants. It is also submitted by the learned counsel for the appellants that the city of Muzaffarpur is the Head-quarter of the district within the State of Bihar and within the city of Muzaffarpur, there are good facilities of education. There is an Engineering College as well as Medical College at Muzaffarpur. It is further submitted by the learned counsel for the appellants that appellant nos. 2 to 5 are married maternal-uncles of the 4. minor boy, but, these appellant, namely, appellant nos. 2 to 5 have no issue and, therefore, the welfare of the child is with the appellants, because appellant nos. 2 to 5 along with appellant no.1 are providing sufficient means to the minor boy for his livelihood, including luxury etc. and, therefore, custody of this minor boy may be allowed to be retained by these appellants. These aspects of the matter have not been properly appreciated by the learned trial court and, hence, the judgment and order delivered by the learned Principle Judge, Family Court, Ranchi, in Guardianship Case No.50/2007 dated 10 th September, 2012 may be quashed and set aside.
8. Learned counsel appearing for the respondent has vehemently submitted that no error has been committed by the learned Trial Court in allowing the application, preferred by the respondent for getting custody of his minor son, under Section 25 and 10 of the Guardians and Wards Act, 1890.
9. It is further submitted by the learned counsel for the respondent (original applicant) that the respondent is a government employee and is working as Jan Sewak (Village Level Worker). He is staying with his mother and unmarried sister. After the death of his wife, this respondent has not married at all. One son is already with this respondent, who is now aged about 13 years and is studying in one of the finest schools of the city of Ranchi (capital of Jharkhand), namely, St. Thomas School, whereas illegally the custody of another son, namely, Ehab Shahid, has been retained by these appellants (original opposite 5. parties), since long. It is further submitted by the leaned counsel for the respondent (original applicant) that looking to the evidences, given by PW1and PW2 who are original applicant and his mother respectively, they have stated that after the death of the wife of the respondent, when the respondent had gone at the house of these appellants for getting custody of his minor son, namely, Ehab Shahid, these appellants had never given the custody of the said minor boy. This is a consistent evidence of the witnesses from the side of the original applicant and, therefore, an application was preferred by the respondent which was numbered as Guardianship Case No.50/2007 under the Guardians and Wards Act, 1890. The welfare of the minor son has been properly appreciated by the learned Trial Court by giving custody of this minor boy to the respondent, whereas the appellants are residing at Muzaffarpur, where there is no proper and adequate educational facilities. Moreover, comparatively the respondents has better environment at his house. The respondent is already having custody of one of his sons and, therefore, this minor boy, namely, Ehab Shahid, will also have the company of his elder brother. Thus, looking to the totality of the evidences before the learned Trial Court, the welfare of the minor son of the respondent is always with the respondent, if the custody is given to the respondent whereas these appellants have no love, labour and lust for the minor boy, namely, Ehab Shahid. The respondent is a natural guardian-father of the minor son. These aspects of the matter have been properly appreciated 6. by the learned Trial Court and hence, this First Appeal may not be entertained by this Court.
10. Having heard learned counsels for both the sides and looking to the facts and circumstances of the case and the evidences on record, we see no reason to entertain the First Appeal for the following facts and reasons: (i) The respondent is the original applicant, who preferred application for getting of custody of his minor son, namely, Ehab Shahid (approximately 11 years of age). His application has been numbered as Guardianship Case No.50/2007 before the Principal Judge, Family Court, Ranchi. (ii) The appellants are relatives of the deceased wife of respondent. Wife of the respondent has expired and out of two children, these appellants have retained the custody of one of the sons, who is Ehab Shahid. (iii) Looking to the deposition given by the PW1and PW2 who are original applicant and mother of the original applicant respectively, they have stated before the learned Trial Court, in no uncertain terms, that after the death of the wife of respondent (original applicant) when PW1and PW2had gone at the residence of these appellants for getting custody of the minor boy Ehab Shahid, these appellants have refused to give custody of the said minor boy. On the basis of this evidences, it appears that the appellants have 7. retained forcefully the custody of minor boy, Ehab Shahid. (iv) It further appears from the evidences before the learned Trial Court that the respondent (original applicant) is a Government employee, who is working on the post of Jan Sewak (Village Level Worker). The respondent is staying with his mother and unmarried sister. The respondents is already having custody of his elder son, aged about 13 years. It further appears from the facts of the case that the elder son of the respondent is studying in a school, namely, St. Thomas School at the city of Ranchi-capital of Jharkhand. Thus, looking to the family environment at the house of this respondent and also looking to the fact that the respondent is a Government employee, the welfare of his minor second son, Ehab Shahid, will always be with the respondent, if the custody is given to him. This aspect of the matter has been properly appreciated by the learned Trial Court. We, therefore, see no reason take any other view than what is taken by the learned Principal Judge, Family Court, Ranchi. (v) It further appears from the evidences, given by PW1and PW2that the second son of the respondent who is minor, namely, Ehab Shahid, will stay at Ranchi- capital of Jharkhand, where there are very good facilities of education and medical. At house also, this 8. minor boy will have the company of his father and his elder brother and also the mother of the sister of the respondent. (vi) Learned counsel for the appellants has relied upon the decision, rendered by the Hon'ble Supreme Court in the case of Shyamrao Maroti Korwate v. Deepak Kisanrao Tekam (supra). (vii) The facts of the present case are entirely different from the facts of the case, cited by the counsel for the appellants. Here the respondent-father has not married again. He has no son or daughter arising out of the second marriage. Here the maternal- grand- father of the minor boy was never appointed as a guardian. Unlike the reported case, cited by the learned counsel for the appellants, here the respondent and his mother both tried to get the custody of minor boy, namely, Ehab Shahid, after the death of the wife of respondent, but, these appellants had refused to give his custody, whereas in paragraph no. 15 of the aforesaid reported, it has been stated by the Hon'ble Supreme Court that the father had never visited the minor child. These are the glaring different facts of the present case and hence, the said decision is not useful to these appellants.
11. As a cumulative effect of the aforesaid facts, reasons and evidences on record, no error has been committed by the learned 9. Trial Court in appreciating the fact that the welfare of the minor boy-Ehab Shahid is with the respondent and, therefore, rightly the custody of the minor boy has given to the respondent from these appellants. We, therefore, uphold the decision rendered by the learned Principle Judge, Family Court, Ranchi in Guardianship Case No.50/2007 dated 10th September, 2012. Thus, there being no substance, this First Appeal is hereby dismissed.
12. Interim stay granted by this Court vide order dated 24 th March, 2014 hereby stands vacated.
13. Consequent to dismissal of this appeal, I.A. Nos. 1578 of 2014 and 6102 of 2014 also stand disposed of. (D.N. Patel, J.) (Pramath Patnaik, J.) A.K.Verma/RKM