Raj Kumar Ray, Son of late Shiv Prasad Ray, Resident of Bauri Para, Police v. 1. Kapildev Gope, son of late Bishundev Gope. 2. Manju Devi, Wife of Kapildev
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI First Appeal No. 17 of 2021 ---- Raj Kumar Ray, Son of late Shiv Prasad Ray, Resident of Bauri Para, Police Line, Near Nepal Kali Mandir, P.O. and P.S. Dhanbad, District-Dhanbad. …..Appellant Versus 1. Kapildev Gope, son of late Bishundev Gope. 2. Manju Devi, Wife of Kapildev Gope, both are resident of Chiragora, Shamshan Road, Hirapur, P.O. and P.S. Dhanbad, District-Dhanbad. ….Respondents Coram: THE HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY THE HON’BLE MR. JUSTICE DEEPAK ROSHAN For the Appellant For the Respondent : Mr. Mrinal Kanti Roy, Advocate : Mrs. J Mazumdar, Advocate -------- -------- -------- 10/20/12/2023
Legal Reasoning
Per R Mukhopadhyay, J Heard Mrs. J Mazumdar, learned counsel for the appellant and Mr. Mrinal Kanti Roy, learned counsel appearing for the respondents. 2. This appeal is directed against the judgement and decree dated 11.2.2021 (decree signed on 23.2.2021) passed by Smt. Sanjeeta Srivastava, learned Additional Principal Judge, Additional Family Court, Dhanbad in Original Suit No. 95 of 2018, whereby and whereunder the suit preferred by the appellant under sections 7, 8 & 9 of the Guardians and Wards Act, 1890 for taking custody of the minors namely Rohan Kumar and Mayank Kumar has been dismissed. 3. judgment as per their status before the learned court below. 4. A suit was preferred by the plaintiff (appellant herein) against the For the sake of convenience, both the parties are referred to in this defendants (respondents herein) under sections 7, 8 & 9 of the Guardians and Wards Act, 1890 in which inter alia it has been stated that the plaintiff had three sons; ( 1) Pravesh Kumar Ray (since deceased) (2) Kamlesh Kumar Yadav and (3) Udesh Kumar. It has been stated that Pravesh Kumar Ray died in the year 2012 leaving behind his wife Kiran Devi and two sons namely Rohan Kumar whose date of birth is 18.4.2008 and Mayank Kumar whose date of birth is 1.8.2011. In the year 2015, the daughter in law of the petitioner namely Kiran Devi, mother of the two minor children died and since then the minor grandsons of the plaintiff are residing with the defendants who are Nana (maternal grandfather) and Nani ( maternal grandmother) respectively. It has been mentioned that the daughter in law of the plaintiff namely Kiran Devi had lodged several cases against the plaintiff and others and most of the cases have ended in acquittal. Pursuant to an order passed in S.T. Case No. 46/2014 the plaintiff 2 First Appeal No. 17 of 2021 had opened accounts in the name of each of his minor grandchildren and had fixed deposited an amount of Rs.10,000/-each for a period of ten years. The plaintiff had recently superannuated from Bihar Police and is residing at his permanent residence and the defendants have no sufficient means to maintain and look after the minor children. Despite repeated requests made by the plaintiff, the defendants have refused to hand over the grandchildren to him and hence the suit preferred by the plaintiff. 5. On being noticed, the defendants have appeared and a written statement was filed by the defendant no. 1, in which the maintainability of the suit has been questioned. It has been stated that the plaintiffs have suppressed material facts to the effect that the plaintiff had solemnized a second marriage as a result of which the entire family was disturbed. The elder son of the plaintiff and his wife Kiran Devi were repeatedly tortured by the plaintiff, his second wife and his step sons for which a criminal case was also instituted against the plaintiff and others being Dhanbad P.S. Case No. 510 of 2010 in which the plaintiff and his second wife were convicted. Since on 8.6.2010, the elder son of the plaintiff and his wife were assaulted by the plaintiff and his second wife for safe custody of the children they were handed over to the defendants. Both the minors were born in the house of the defendants and both the defendants are affectionate to their minor grandchildren. It has been stated that to keep the minor children with the plaintiff would not be conducive for their welfare. After the death of the elder son of the plaintiff on account of the assault committed upon him Kiran Devi also died in suspicious circumstances in December, 2015. 6. for adjudication. Based on the pleadings of the parties, the following issues were framed (i) Whether the suit is maintainable in its present form? (ii) Whether the plaintiff has got a valid cause of action? (iii) Who will be the guardian of the ward? (iv)Who will serve the welfare of the ward? (v)Whether the plaintiff is entitled to claim the relief? 7. The plaintiff in order to prove his case has examined six witnesses namely P.W-1-Raj Kumar Ray (plaintiff), P.W-2-Kulmat Devi (wife of the plaintiff), P.W-3-Girjanand Prasad, P.W-4-Aklu Bauri, P.W-5-Arun Kumar Singh and P.W- 6-Udesh Kumar. Several documentary evidences were also adduced/exhibited by the plaintiff. 8. The defendants have examined three witnesses namely D.W-1- Kapildeo Yadav (defendant no. 1), D.W-2-Manju Devi (Defendant No. 2) and D.W-3-Lajwanti Bakshi. Apart from the oral evidence, several documentary evidences were also exhibited by the defendants. 3 First Appeal No. 17 of 2021 9. Based on the oral and documentary evidence adduced by both the sides, issue nos. (iii) and (iv)which were the pivotal issues for determination of the lis were answered against the plaintiff and in favour of the defendants. 10. Mrs. J. Mazumdar, learned counsel for the plaintiff/appellant, has submitted that the learned court below has failed to take into consideration that for the best interest of the minors, the plaintiff should have been declared the guardian of the ward as the plaintiff is financially well off and can provide a congenial atmosphere at home for the mental and physical development of the minor children. 11. When we expressed our reluctance to interfere in the impugned judgment dated 11.2.2021 since the learned court below had rightly come to a conclusion that for the welfare of the minor children the paramount consideration have been met by the defendants and on interaction by the court the children had preferred to stay with the defendants who are taking proper care of their welfare which has been recorded in the judgment itself, Mrs. Mazumdar has confined her submission only to grant of visitation rights to the plaintiff. This submission has not been seriously opposed by Mr. Mrinal Kanti Roy, learned counsel appearing for the defendants particularly in view of the fact that both the sides reside in close proximity. 12. In view of the curtailment in the original prayer made by the plaintiff/appellant, we allow visitation rights to the plaintiff to the effect that every alternate Sunday, the defendant(s) shall leave both the minor children in the house of the plaintiff at 9.A.M. and shall collect them at 4 P.M. During the aforesaid period, the plaintiff shall ensure the welfare and safety of the children. 13. With the aforementioned modification in the judgment dated 11.2.2021 passed by Smt. Sanjeeta Srivastava, learned Additional Principal Judge, Additional Family Court, Dhanbad in Original Suit No. 95 of 2018, this appeal stands dismissed. 14. Pending I.A.’s, if any, are closed. (Rongon Mukhopadhyay,J) (Deepak Roshan, J) Rakesh/-