1. Heard Mr. Manojeshwar Prasad Sinha for the appellant, and Mr. Amarendra Nath Verma for the respondent.
2. The present Miscellaneous appeal has been preferred by the appellant against the order dated 17.5.2011 passed by the Principal Judge, Family Court, Bettiah in Miscellaneous Case No. 40 of 2008. The case was filed by the respondent under Section 7 of the Guardians and Wards Act, 1890 for declaring him as guardian of the minor child Raja Babu. The respondent is the maternal uncle of the said boy namely, Raja Babu and appellant is the father.
3. The brief facts necessary for the disposal of the present appeal are noted hereinbelow.
The appellant was married to the sister of the respondent on 26.11.2005 and as alleged she was burnt to death by the appellant and his family members on 26.2.2008, leading to institution of Shikarpur P.S. Case No. 49 of 2008, under Sections 304 B and 498A of the Indian Penal Code. The cause for making such application was that the appellant was of young age and was going to remarry and was threatening to kill the minor child and was in a position to expose the said minor to a situation in which he would die and in case of second marriage of the appellant, emotional well being and welfare of the minor was in great danger. The minor boy in question was born on 14.12.2006. The Miscellaneous Case No. 40 of 2008 was contested between the parties in which on behalf of the respondent two witnesses were examined whereas on behalf of the appellant seven witnesses were examined. P.W. 1 was the respondent himself and he has reiterated the stand taken in the petition for custody whereas P.W. 2 is the brother of the respondent who has also supported the case of the respondent. Various exhibits and materials were produced before the Court below including the certified copy of the judgment of Sessions Trial No. 278 of 2009 dated 20.9.2010 which arose out of Shikarpur P.S. Case No. 49 of 2008 by which the learned 1st Additional Sessions Judge, Bettiah has found the appellant and his parents guilty of causing death for dowry of the wife of the appellant and had sentenced the appellant to life imprisonment and his parents to rigorous imprisonment for ten years. Seven witnesses were examined on behalf of the appellant including the respondent himself, his unmarried sister, cousin brother of the appellant, tutor of the minor boy and co-villagers. From the order sheet dated 28.4.2010 of the Court below it is apparent that the minor boy was also brought before the Court and the Court had the opportunity to put a few questions to him also. After considering the case of the rival parties, the Principal Judge, Family Court, Bettiah by the order under appeal dated 17.5.2011 allowed the petition for custody of the minor child on contest and directed the appellant, his mother and sister to hand over the child to the respondent.
4. Learned counsel for the appellant has submitted that the Principal Judge, Family Court, Bettiah has passed an order for handing over custody of the child by the grand mother and the paternal aunt (Bua) of the minor child which cannot be sustained since they were not party to the proceedings. He also submits that the maternal uncle does not come in any category of guardian under the Mahomedan law and thus the order under appeal was not sustainable. He has referred to the evidence adduced before the Court concerned to show that all the seven witnesses examined on behalf of the appellant have consistently stated that the minor child was save and happy living with the family of the appellant.
5. Learned counsel for the appellant relies upon the decision of the Hon’ble Apex Court in the case of R. V. Srinath Prasad Vs. Nandamuri Jayakrishna reported in A.I.R. 2001 Supreme Court 1056, the relevant being at paragraphs no. 9, 10 and 11. He points out that as per the said judgment custody of the minor child is a sensitive issue also involving sentimental attachment and such matters should be tackled carefully. A balance has to be struck between the attachment and sentiments of the parties towards the minor child and it is the welfare of the minor which is of paramount importance. He also submits that the facts of that case were more or less similar to the present one. The Hon’ble Apex Court did not grant custody of the minor to the maternal grand parents in that case. He submits that the minor boy is happy and well looked after by the family of the appellant and thus there was no occasion for the Court to grant custody of the boy to the respondent.
6. Learned counsel for the respondent on the other hand has taken us through the records of this case, especially exhibit-8 which is a letter written by the deceased wife of the appellant to her sister-in-law in which there is complain of physical and mental torture by the appellant and his family members. Learned counsel has also taken us to the various provisions of Mahomedan Law, especially Sections 349, 350 and 351 of the same which deal with applications for appointment of Guardians which has to be made under the Guardians and Wards Act, 1890 which provides that the Court shall make an order after being satisfied that it was for the welfare of the minor child and also deals with regard to the matters to be considered by the Court while appointing Guardian. He submits that in view of the aforesaid provisions the Court has rightly granted custody of the minor child in favour of the respondent. Learned counsel for the respondent has also drawn our attention to the provisions of Section 39 of the Guardians and Wards Act, 1890 which deals with removal of Guardians. He has specially relied on sub-section (f) which provides the grounds for removal of guardian and reads as under:-
“39 Removal of Guardian. The Court may, on the application of any person interested or of its own motion, remove a guardian appointed or declared by the court, or a guardian appointed by will or other instrument, for any of the following causes, namely:
(a)………….;
(b)………….;
(c)…………..;
(d)……………;
(e)……………:
(f) for conviction of an offence implying, in the opinion of the court, defect of character which unfits him to be the guardian of his ward.
(g)………….:
(h)…………..;
7. He submits that in view of the said provision the appellant is unsuited for Guardianship and his parents’ conviction would also be enough for their removal as guardian. With regard to non-joinder of the grand mother and paternal Aunt (Bua) to the proceeding, learned counsel for the respondent submitted that the Paternal Aunt (Bua) was examined alongwith the appellant and thus they cannot object that because they were not made parties no order can be passed against them. He submits that the minor son was in the custody of the appellant and in his absence in the protective custody of the grand mother and the paternal Aunt (Bua) and thus the objection of non-joinder of party is of no help to the appellant. He further submits that the appellant filing the present appeal and his mother not approaching this Court also establishes this fact that they have no grievance against the order under appeal. His further contention is that since both the appellant and his father are behind bars, there is no male member in the house and in that view of the matter also the interest and welfare of the minor son was not safe in the house of the appellant. Learned counsel has also referred to Section 17 of the Guardians and Wards Act, 1890 with regard to matters to be considered by the Court in appointing Guardians and submits that in that view of the matter also the order under appeal is justified. He relies upon the order of the Hon’ble Apex Court in the case of Nil Ratan Kundu Vs. Abhijit Kundu reported in (2008) 9 SCC 413, the relevant paragraphs being 19, 24, 26, 28, 48, 50, 51, 52, 63 and 64. He submits that the Hon’ble Supreme Court has held that while dealing with such cases the Court is neither bound by statute nor by the strict rule of procedure nor by precedent. Since in selecting a guardian, the Court exercises parens patriae jurisdiction, it must give due weightage to child’s ordinary comfort, contentment health, education, intellectual development and favourable surroundings as well as physical comfort and moral values. The Hon’ble Court has also held that proper test to determine the suitability of the father to have the custody of the minor was the positive test of welfare of the minor and not the negative test that the father was not unfit or disqualified to have the custody. He also submits that in the case before the Hon’ble Supreme Court the criminal case was pending under Sections 498A and 304 of the Indian Penal Code against the father charging him with causing death of the mother of the minor which was not considered by the Courts below and the Hon’ble Supreme Court has held that it ought to have been taken into consideration, pointing out the similarity in the present case. He submits that in the present case there has been conviction in the criminal case on identical charges and therefore the appellant unsuited himself for getting custody of the child which was also the case before the Hon’ble Supreme Court where the Supreme Court granted custody of the minor son to the maternal grand father.
8. Upon hearing learned counsel for the parties, this Court feels that in view of the evidence brought on record including the fact that the appellant, his father and mother have been convicted in criminal case for causing death of the mother of the minor boy, the welfare and overall interest of the minor boy shall be compromised if he is allowed to remain at his paternal home with the grand mother and thus it is in the best interest of the minor boy that his custody be given to the respondent. This Court is further convinced about the welfare of the minor boy being better served by being in the custody of the respondent for the fact that he is a T.T.E. with the Railways and thus quite solvent, whereas it is a fact that the appellant as well as his father are in jail custody and there is no other male member in the house. We also find that under similar circumstances, the Hon’ble Supreme Court in the case of Nil Ratan Kundu Vs. Abhijit Kundu (Supra) had granted custody of the minor in favour of the maternal grand parents inspite of the father being alive under more or less similar circumstances. As far as the judgment of the Hon’ble Supreme Court in the case of R.V. Srinath Prasad Vs. Nandamuri Jayakrishna (Supra) which has been relied upon by learned counsel for the appellant we find that in the said case the foundational facts were different in as much as the Court had granted interim custody to the maternal grant parents when the matter was still pending before the Family Court. In the present case the Family Court has come to a definite conclusion that the interest of the minor child would be better protected if he is in the custody of the respondent. Thus the said case does not come to the rescue of the appellants.
9. Upon consideration of the entire facts and circumstances of the case we are in agreement with the order passed by the Principal Judge, Family Court, Bettiah dated 17.5.2011 and confirm the same.
10. Accordingly, the present miscellaneous appeal stands dismissed. However, in the facts and circumstances of the case there shall be no order as to cost.