@JUDGMENTTAG-ORDER
Irshad Hussaln, J.@mdashThis appeal u/s 47 of the Guardians and Wards Act, 1890 (hereinafter referred to as the Act) is directed against the impugned judgment and order dated 9.8,2000 passed by the then Addl. District Judge, Dehradun in Miscellaneous Case No. 70 of 1996, Bal Kishan Pande v. Sanjeev Bafpai on a petition of the appellant, for his appointment as the guardian of his minor grand-daughter, Kumari Swati (daughter''s daughter) and to allow him to retain the custody of the said minor. Petition was preferred as provided u/s 10 of Chapter II of the Act relating to appointment and declaration of guardian of the minor. By the impugned judgment and order, the petition was dismissed and the appellant was directed to hand over the custody of the minor to her father, the respondent.
2. The relevant dates having bearing on the facts of the case are mentioned first :
8.12.1989--Smt. Sunita daughter of the appellant was married to the respondent, the father of the minor Km. Swati.
16.11.1990--Km. Swati, the first daughter was born out of the said wedlock.
19.3.1994--Km. Surati was born to the said couple.
9.11.1994--Smt. Sunita died in Nagpur on account of post abortion complication,
15.4.1996--Respondent married Smt. Usha. the present second wife in Bombay.
May, 1996--Km. Swati was brought to Dehradun by the appellant and was admitted in a school.
3. The petition was filed on 2.7.1996 with the allegations that the respondent after second marriage had shown a change in his misbehaviour and attitude in treating the minor daughter''s with contempt and even gave them beating many times on petty matters, that on account of this attitude the minor daughter Km. Swati was brought to Dehradun with the consent of the respondent about two months ago so that she may be brought up and educated at Dehradun, that the appellant has retired as a Vice-Principal of a Degree College and has got his own house at Dehradun, that he has no legal heir of his own except the said minor and has a capacity for bringing up the minor nicely, that in the course of time the respondent from his second wife will have children and then they will not be able to give fair treatment, love and affection to the said minor and that her welfare could be safeguarded only if the appellant retains her custody and is appointed the guardian.
4. In written statement the allegations of the appellants were vehemently denied while questioning the right of the appellant to retain the custody of the minor and appointment as guardian. It was pleaded that the minor daughters have always been nicely kept with full love and affection even after the second marriage, that in the month of May, 1996 there was summer vacation in the school where Km. Swati was studying and since the appellant wanted to keep her at Dehradun for a period of 20-25 days the request was accepted, that on 24.6.1996 the respondent along with his wife and other daughter came to Dehradun to take Km. Swati with them to Nagpur but the appellant refused and thereafter filed the petition with false and frivolous allegations. The respondent also made counter-claim for the custody of Km. Swati contending that he being the natural and legal guardian and having not been declared incompetent to remain so has every right for the custody of his minor daughter.
5. In the affidavit of the respondent it had been averred that he is now employed in United States of America getting a very handsome salary and is residing there with the second wife and the other minor daughter Km. Surati and thus has capacity to provide best education and other facilities to bring up both the daughters and, therefore, the welfare of the minor daughter Km. Swati also requires that she be given in his custody for which he has a legal right as legal guardian also.
6. The learned trial court on the basis of its appreciation of the material on record did not find favour with the allegations of the appellant and rather accepted the contentions of the respondent that the future of the minor would be safe and her overall welfare would be ensured only in the custody of the respondent-father and accordingly dismissed the petition while allowing counter-claim by the impugned judgment and order.
7. Heard at length Sri Ashok Kumar Sharma, learned counsel for the appellant and Sri V.K. Kohli, learned counsel for the respondent. From submissions following questions arise for consideration :
(a) Whether the finding of the learned lower court that the respondent, the father of the minor girl Km. Swati, is not unfit to remain the guardian and to claim her custody, is not based on proper and fair appraisal of the material on record and the same is incorrect.
(b) Whether the learned trial court has failed to take into consideration and in proper perspective the facts, circumstances and the material on record that the welfare of the minor Km. Swati lies in her remaining in the custody of the appellant.
8. So far as the first question is concerned, the learned counsel for the appellant, submitted that the court below did not taken into account the fact that Smt. Sunita, the first wife of the respondent had died under highly suspicious circumstances and this aspect tells adversely upon the character, bona fides and behaviour of the respondent. According to him a person of such a dubious background could not be expected to be kind, affectionate and compassionate towards the minor daughter Km. Swati and moreso, when the respondent had taken a second wife, who too could not have any longing for the step-daughter and lovingly mindful of her welfare. The learned counsel referred to paragraph six of the impugned judgment wherein mention of a report dated 26.6.1996 sent to the police has been made. Accordingly, the learned counsel submitted that this report was made by the appellant against the respondent in relation to the death of Smt. Sunita under suspicious circumstances and the import of the serious imputations had not been taken note of by the court below.
9. At the outset it need to be mentioned that the submissions in this regard are not warranted from the material on record. Even if in the said complaint to the police some aspersions were cast the same were afterthoughts merely to derive some benefit for the cause to file the petition for the custody of the minor. It is significant that Smt. Sunita, passed away on 9.11.1994, whereas the said complaint was made after a considerable delay on 26.6.1996. This date in fact has relevance to the filing of the petition by the appellant on 2.7.1996. As opined above he wanted to take some leverage for his allegations in the petition by sending a complaint to police only few days before the said move to submit the petition in court below. This apart, there is absolutely nothing convincing on record to even find little solace to the appellant''s cause. In fact there is nothing to rebut the claim of the respondent that Smt. Sunita died due to post-abortion complications despite best available medical facility and treatment provided at Nagpur. Appellant has nowhere in his various affidavits refuted the claim of the respondent and rather in an affidavit dated 28th August, 2000, filed in the High Court, averred that married life of his daughter and the respondent was happy and after the death of the daughter his relations with the respondent remained cordial and normal. Even after the second marriage of the respondent the relations continued to be nice and normal. The conduct of the appellant thus also runs counter to his claim and the contentions raised on his behalf carry no conviction.
10. It is pertinent to record that the appellant is mentally inhibited with a wrong notion based on generalized social stigma attached to a step-mother and thereby gave vent to his feelings by pleading that after second marriage the behaviour and attitude of the respondent and his second wife became harsh with minor daughters and both of them accused the minors and beat them many times on trifling matters. The court below had rejected the contention and apprehension of the appellant on the basis of the material on record and the relevant observations in the impugned judgment may be reproduced here for an advantage. It observed that "A careful reading of the entire petition and the affidavit filed for and on behalf of the petitioner goes to show that the only apprehension in the mind of the petitioner is that in arrival of step-mother the child shall be harassed and after her own children are born, the step-mother could not treat them nicely. The respondent has already stated that he had married with Usha, the second mother, only in the interest of the children and after ascertaining that no child would be born to her. A certificate has been filed on record, which is Paper No. 46 Kha, which certifies in a very clear terms that the second wife of the respondent cannot conceive a child for the internal infirmity. He has also stated this fact in his counter-affidavit. Smt. Usha, the second wife of the respondent has also filed her affidavit and has confirmed the same fact. There is no reason to disbelieve this unchallenged statement of the respondent that Smt. Usha, the second wife of the respondent cannot bear a child. Therefore, in these circumstances the only apprehension in the mind of the petitioner stands removed."
11. Having considered the material facts of the case, I find myself in full agreement with the opinion and also the inference drawn by the court below. It is also relevant to record that parties to the case, the two minor daughters of the respondent, his wife Smt. Usha and their counsel remained present in my chamber before I interviewed the minor Km. Swati and I had observed that the younger daughter Km. Surati aged about eight years remained glued up in a very normal and happy mood and gesture to her step-mother Smt. Usha. She also appeared well fed, brought up and nicely kept. It could have been possible only if the step-mother had been taking due care of her, besides giving her love, affection and compassion which a child owes from the mother. It could, therefore, be safely said that Smt, Usha, had shed the generalized social stigma like an exception to a rule and it would be a fallacy to think or apprehend that she will not provide the same care, love, affection and kindness to the other step-daughter Km. Swati, whose fate is in issue in this litigation. In short, the respondent and his second wife together will be able for bringing up Km. Swati, nicely with full love and affection and will also be fully alive and conscious of her welfare deserving to a daughter. Here it will not be out of place to mention that the appellant has nowhere questioned the bona fides of the respondent and his second wife in the matter of discharge of their duties towards the other younger daughter Km. Surati, residing with them for all these more than seven years. This also shows that the claim of the appellant against them in relation to the other daughter Km. Swati, is baseless and ill-founded.
12. The learned counsel for the appellant pressed into service a decision of Karnataka High Court in the matter of
13. Another reported decision in Deram Seethamahalakshmi alias Dabir Latha v. Kala Seethamaha-lakshmamma 1983 Hin LR 181, cited at the bar also is of no avail to the appellant. The reason is that in the said decision also the stress is on the welfare of the child and which in the instant case will be best served when the respondent is not deprived of the custody of the minor.
14. In the face of the facts of the case, in fact the Apex Court decision In the matter of Chatter Singh v. Usha Rani 2000 40 All LR 794, referred by the learned counsel for the respondent has application to the instant case. In the reported case the minor Km. Surati aged about 10 years was permitted to be kept in the custody of the widowed mother, ignoring the sentimental claim of grandfather. Another decision of Delhi High Court in the case of Jaswant Kaur v. Manjit Singh Marwaha 2 1984 DMC 372, also relied upon for the respondent helps his cause. In the said case it was impressed that merely second marriage of the father is no ground to disentitle him the custody of his minor son and to give the custody to the maternal grandparents.
15. Bearing in mind the above decisions, legal aspect of the matter in controversy and on examining the judgment of the court below, I have no doubt in mind that the conclusion of the court below that the respondent is not unfit to remain the guardian and to claim the custody of his minor daughter Km. Swati, being based on fair appraisal of the material on record as well as the attending circumstances, is perfectly just and proper and the finding to this effect is affirmed.
16. Coming to the second question, learned counsel for the appellant urged that the minor Km. Swati is residing happily and prosecuting her studies while staying with the appellant and his wife (maternal grandparents) for the last six years and, therefore, the welfare of the minor requires that the arrangement is not disturbed. He also laid stress on the free will and wish of the minor as the guiding factor in resolving the controversy. No doubt Km. Swati on being interviewed by me in the chamber on 28th June, 2002 gave out that she is happy in the company and custody of maternal grandparents and is not willing to be given in the custody of her father, the respondent, but this wish cannot be taken to conclusively settle or answer the question, relating to her welfare. The reason is that as also argued on behalf of the respondent, Km. Swati had during her stay with appellant and his wife developed, sense of belonging and reciprocating devotion out of affection towards them and, therefore, did not hesitate to show her liking for further stay with them. At this stage on account of immaturity of mental faculties, which is not unusual with a minor girl of less than 12 years, she could not foresee and anticipate for things for her future. Appellant is more than 65 years of age and so may be his wife, Smt. Sunita. The mother of the minor was their only issue. There can be no doubt that they could not provide adequate attention and care to the minor Km. Swati, whereas the respondent and his present wife could, in all the probabilities, give more and proper care with best available comforts and of course best of education.
17. The learned court below has, on the basis of the material on record, drawn the inference that "the respondent is serving in U.S.A. and earning a very handsome salary. The younger daughter has been admitted in a good school. In no circumstances the first child (Km. Swati) could be deprived of the facility of high education, good bringing up and lavish living in a foreign country in the company of her father and loving step-mother." Nothing could be shown to me to challenge the said inference and opinion based on evidence and, therefore, there is no alternative but to find favour with it also. There cannot be any substitute to the love, affection and sense of belonging which parents of a child possess. The appellant could not thus successfully urge that this compassion, kindness and love towards the minor outweighs that of the respondent. Therefore, in the face of this stark reality, inference drawn, conclusion arrived at on the first question in issue it has, without the least hesitation, to be held that the welfare of the minor Km. Swati will be served only when she is not kept in the custody of the appellant but her custody is restored to her loving father, the respondent.
18. In the end it also need to be stated that the averment of the affidavits of respondent that Km. Swati was permitted to be taken to Dehradun by the appellant in the month of May, 1996 for a stay for quite some time in the summer vacations of her school, also appears true. The relation between the parties at that time were undisputedly cordial and the above arrangement was as such quite normal. When Km. Swati was brought to Dehradun by the appellant, he had, out of false notion and apprehension that the second wife of the respondent would treat the minor indecently, made up mind to devise ways to keep the said minor away from the company and custody of the respondent and his newly wedded second wife. The appellant thus made a false complaint on 26.6.1996 to the police and soon after on 2.7.1996 filed the petition in the Court. The respondent has not lost time but went out to contest the same and his conduct and attitude, as is also evident from the proceedings before the court below, has all along been positive in order to regain the custody of his minor daughter, to which he had legal right as guardian also.
19. While parting with the judgment, I hope and trust that the respondent and his present wife Smt. Usha shall honour and observe in letter and spirit the assurance given per paragraph 7 of the affidavit of attorney Rajesh Sharma filed on 2.9.2000. The deponent on behalf of the respondent had averred that the respondent for the betterment of two children and also for the betterment of his and other family members, i.e., his wife does not want to bear bad feeling for the petitioner (appellant) and his wife and wants to maintain good relationship with them. As a gesture of this relationship, the respondent will either almost every year send both the daughters, Km. Swati and Km. Surati to Dehradun to stay with their grandparents during the summer vacation in U.S.A. schools between June, July and August or in case it is not done then invite the petitioner and his wife to U.S.A. by paying for their expenses to and fro and stay with these children in U.S.A.
20. In the aforesaid premises, the judgment and order of the court below, has to be maintained. In other words this appeal has no force and is hereby dismissed. The judgment and order dated 9.8.2000 are confirmed. Since the counter-claim for return of the minor Km. Swati to the custody of her guardian, the respondent, was also allowed by the court below, the respondent shall be entitled to enforce the order as contemplated under the provisions of Section 25 of the Guardians and Wards Act, 1890, in case the custody of the said minor is not amicably restored to him. The parties were directed to remain present in the court along with the minor Km. Swati and it is expected that the custody of the said minor shall be restored to the respondent today itself.
