Miscellaneous Appeal No. 124 of 2010 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.124 of 2010 ====================================================== Ram Lagan Malakar S/O Late Rasdhari Malakar R/O Vill.- Gorgama Begusarai, P.S. Nayagaon, Distt.- Begusarai, At Present Residing At Qrt. No. Ng 228, Shah Colony, Gandhi Nagar, P.T.P.S. Patratu, Distt.- Ramgarh .... .... Opposite Party/Appellant Versus Mandhata Prasad S/O Sri Chandra Prasad R/O Mohalla- Bari Keshopur, Post And P.S. Jamalpur, Distt.- Munger .... .... Petitioner/Respondent ====================================================== Appearance : For the Appellant/s : Mr. Jai Prakash Verma Mr. Santosh Kumar Chauhan For the Respondent/s : Mr. Rajesh Ranjan-1 ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA and HONOURABLE MR. JUSTICE VIKASH JAIN ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 7 03-10-2013 We have heard learned counsel for the appellant and the respondent. The former is the Maternal Grant Father of the minor child. The latter is the father. The Principal Judge, Family Court, Munger in Guardianship Case No. 02 of 2007 preferred by the latter for custody of the minor child has allowed the claim by judgment and order dated 23.12.2009 which is presently assailed. Learned counsel for the appellant submitted that the respondent has solemnized a second marriage and it shall not be conducive for the minor children to stay with him. It was next submitted that the appellant is in a better position to look after the minor child. The respondent is an accused under Section 304B of the Indian Penal Code for the unnatural death
Legal Reasoning
Patna High Court MA No.124 of 2010 (7) dt.03-10-2013 2 of his wife. It is therefore not in the welfare of the minor child to give him custody. It was lastly submitted that since the child resided with the appellant at Patratu, the Family Judge, Munger did not have jurisdiction in the matter. Reliance was placed on 1996 (2) PLJR 713 (Awadhesh Kumar Vrs. Rajendra Prasad Sharma) to submit that the order is completely without jurisdiction. Objection has been raised on that account in the written statement. Reliance was further been placed on 2007
Legal Reasoning
(3) PLJR 332 (Srilal Mahto Vrs. Amar Singh Rathaur) to submit that the minor child who was motherless would get more affection from the Grand parents. Counsel for the respondent opposed the application urging that the order under appeal requires no interference. Referring to the plaint filed for custody, it was submitted that after the death of his wife the minor son was for sometime also with the respondent and therefore the question of jurisdiction is a mixed question of law and fact. It does not appear from the order under appeal that this ground was pressed and any evidence led in support of the claim that after the death of his wife, the minor child at no point of time resided with the respondent at Munger. It was next submitted that the Complaint Case under Section 304B of the Indian Penal Code has been dismissed. The deceased died a natural death. The child was born from the wedlock on 16.08.2003. He is approximately 13 years of age today. It does Patna High Court MA No.124 of 2010 (7) dt.03-10-2013 3 not appear from the order under appeal that the Court interacted with the child to know his wish. He was approximately a little over six years of age when the Guardianship Case has been disposed. In (2008) 7 SCC 673 (Mausami Moitra Ganguli Vrs. Jayant Ganguli) it has been observed that the welfare of the child is the paramount consideration holding as follows: father is, no doubt, true that “20. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration. 21. In Rosy Jacob V. Jacob A. Chakramakkal a three-Judge Bench of this Court in a rather curt language had observed that : (SCC p.855, para 15) “15. …. The children are not mere chattels: nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human Patna High Court MA No.124 of 2010 (7) dt.03-10-2013 4 beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.” 22. In halsbury’s Laws of law (4th Edn., Vol.13), England pertaining to the custody and maintenance of children has been succinctly stated in the following terms: the “809. Principles as to custody and upbringing of minors.-Where in any proceedings before any court, the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, land the rights and authority of mother and father are equal and are exercisable by either without the other.” The wife of the respondent was deceased on 19.05.2005. The case for custody was filed by him on 20.02.2007. The complaint under Section 304B of the Indian Penal Code by the appellant was filed subsequently on 15.03.2007 and the written statement in the custody case filed on 30.03.2007. We indeed find it strange that the appellant did not consider it necessary to launch any prosecution under Section 304B of the Indian Penal Code after the death on Patna High Court MA No.124 of 2010 (7) dt.03-10-2013 5 19.05.2007 but opted for the same only after the respondent filed the Custody Case on 20.02.2007. No material has been placed before us by either party with regard to the status of the complaint. The appellant in his written statement has himself accepted that the deceased was suffering from ailment and was treated inter alia at the AIIMS, New Delhi, the Rajendra Medical College, Ranchi and died in course of treatment. No evidence has been led by the appellant how the respondent did not have the capacity to look after the minor child and for reasons explained along with the evidence that the appellant was better suited to do so. Under Section 9 of the Hindu Minority and Guardianship Act, the father was the natural guardian of the legitimate minor child. It does not appear from the order under appeal that any serious argument was made and evidence led by the appellant that it was detrimental in the interest of the minor child from all aspects to stay with the respondent. The respondent was acknowledged to be an income tax payee also leading to the presumption that he has proper capacity to look after the child. The fact that the respondent may have remarried cannot be seen in isolation as a disqualifying factor separate from other facts of the case to hold in following Srilal Mahto (supra) that under all circumstances notwithstanding other issues merely because the respondent had remarried it had to Patna High Court MA No.124 of 2010 (7) dt.03-10-2013 6 be detrimental to the interest of the minor child to stay with him. The judgment relied upon is clearly distinguishable as the child had himself stated in Srilal Mahto (supra) that he did not wish to stay with the father because of the step mother. The boy stated that he had never met with his father after specified date and that he had been living continuously with the grand parents. The minor child was stated to scared of his step mother. It was in these circumstances that the custody of the minor child was given to the grand father in preference to the father. The question of jurisdiction is a mixed question of law and fact. No material has been placed before us or even before the Family Judge that the minor child never resided with the father at any time after the death of his wife. It also does not appear from the order under appeal that any argument was made or evidence led with regard to the question of jurisdiction. In the entirety of the discussion for by us , we find no reason to interfere with the order under appeal.
Decision
The appeal is dismissed. P.K./- (Navin Sinha, J) (Vikash Jain, J)