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  • Ashok Kumar Sharma
  • V.K.Kohli
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  • Hon'ble Mr. Justice Irshad Hussain
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  • Ashok Kumar Sharma
  • V.K.Kohli
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  • Hon'ble Mr. Justice Irshad Hussain
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Smart Summary

Case Summary — Appeal under Section 47, Guardians and Wards Act, 1890

Factual and Procedural Background

This appeal under Section 47 of the Guardians and Wards Act, 1890 challenges the judgment and order dated 9-8-2000 of the Addl. District Judge, Dehradun in Miscellaneous Case No. 70 of 1996 (Bal Kishan Pande v. Sanjeev Bajpai). The appellant (maternal grandfather) filed a petition under Section 10, Chapter II of the Act on 2-7-1996 seeking appointment as guardian and custody of his minor granddaughter, Kumari Swati (the daughter of his deceased daughter, Smt. Sunita), and to retain her in his custody.

Key factual timeline contained in the opinion:

  • 8-12-1989 — Smt. Sunita (daughter of appellant) married the respondent (father of the minor).
  • 16-11-1990 — Birth of Km. Swati (first daughter).
  • 19-3-1994 — Birth of Km. Surati (second daughter).
  • 9-11-1994 — Death of Smt. Sunita in Nagpur (allegedly due to post-abortion complications; appellant later made a complaint about suspicious circumstances).
  • 15-4-1996 — Respondent married Smt. Usha (second wife) in Bombay.
  • May 1996 — Km. Swati was brought to Dehradun by the appellant and admitted to school there.
  • 2-7-1996 — Petition filed by appellant for custody and guardianship.
  • 9-8-2000 — Trial court dismissed the appellant's petition and directed custody to be given to the respondent (father); respondent's counter-claim for custody was allowed.
  • Appeal was heard in the High Court; the High Court dismissed the appeal and confirmed the trial court's order.

Legal Issues Presented

  1. Whether the trial court's finding that the respondent (father) is not unfit to be guardian and to claim custody of Km. Swati was based on a proper and fair appraisal of the material on record.
  2. Whether the trial court failed to consider facts and material which would show that the welfare of Km. Swati lies in remaining in the custody of the appellant (maternal grandfather).

Arguments of the Parties

Appellant's Arguments

  • The respondent's character, bona fides and behaviour are suspect because the appellant alleged that Smt. Sunita died under highly suspicious circumstances; this adverse background renders the respondent unfit to be guardian.
  • After the respondent's second marriage, his behaviour toward the minor changed and the minor was beaten on petty matters; the second wife would likely not treat the step-daughter kindly, especially if she had biological children later.
  • The appellant (a retired Vice-Principal with a house in Dehradun) has the capacity to bring up and educate the minor; he has no other legal heir and custody with him would better secure the child's welfare.
  • The minor had become happy and accustomed to living with the maternal grandparents; the child's expressed wish to remain with them was urged as a guiding factor.
  • The appellant filed a police report (dated 26-6-1996) about the suspicious death of Smt. Sunita and relied on that to impugn the respondent's fitness.

Respondent's Arguments

  • The respondent vehemently denied the appellant's allegations and questioned the appellant's right to retain custody or be appointed guardian.
  • It was pleaded that the children had been treated with love and affection even after the second marriage; the May 1996 transfer to Dehradun was for a 20–25 day period during summer vacation at the appellant's request, and when the respondent came to collect the child on 24-6-1996 the appellant refused.
  • The respondent filed a counter-claim asserting his rights as the natural and legal guardian and that he had not been declared incompetent.
  • In an affidavit the respondent averred he was employed in the United States earning a very good salary and residing there with his second wife and the younger daughter (Km. Surati), and that he was able to provide the best education and facilities for both daughters; accordingly the child's welfare required custody to be with him.
  • The respondent produced evidence (certificate and affidavit) that his second wife could not conceive, which was used to counter the appellant's apprehension about future children displacing the step-daughter.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
A.G. Venkatakrishnaiah v. S.A. Sathyakumar, AIR 1978 Kant 220 Cited for the proposition that a father's right to custody is circumscribed by the consideration of the welfare of the minor; father may be held unfit in peculiar circumstances. The Court held the decision had no application to the facts of the instant case and rejected the appellant's attempt to rely on it to show the father was unfit.
Deram Seethamahalakshmi alias Dabir Latha v. Kala Seethamahalakshmamma, 1983 Hindu LR 181 Cited to emphasise that the welfare of the child is the paramount consideration. The Court held this precedent did not assist the appellant because in the instant case the welfare of the child was served by restoring custody to the father.
Chatter Singh v. Usha Rani, (2000) 40 All LR 794 Example where a minor was permitted to remain with the widowed mother over the sentimental claim of a grandfather; cited in relation to comparative welfare assessments. The Court found this decision applicable as illustrating welfare-based decisions; it was relied upon by the respondent and the Court found it supportive of allowing custody with a parent rather than a grandparent in appropriate circumstances.
Jaswant Kaur v. Manjit Singh Marwaha, (1984) 2 DMC 372 : AIR 1985 Delhi 159 Holds that the mere fact of a father's second marriage is not a ground to disentitle him from custody of his child. The Court relied on this precedent in favour of the respondent, noting that second marriage alone does not justify depriving the father of custody.

Court's Reasoning and Analysis

The Court undertook a step-by-step appraisal of the material on record and the submissions:

  1. On the allegation that the respondent was implicated in the suspicious death of Smt. Sunita, the Court noted the timing: Smt. Sunita died on 9-11-1994 but the police complaint was made on 26-6-1996, shortly before the petition was filed on 2-7-1996. The Court treated this as an afterthought aimed at strengthening the custody petition and observed there was nothing convincing on record to rebut the respondent's claim that the death was due to post-abortion complications despite medical treatment in Nagpur.
  2. The Court observed that the appellant himself had, in an affidavit dated 28-8-2000 in the High Court, stated that the married life of his daughter and the respondent was happy and that relations remained cordial after her death; this undermined the appellant's later allegations.
  3. The Court accepted the trial court's finding that the appellant's primary apprehension was a generalized social stigma against step-mothers and that the respondent and his second wife had specifically denied that the second wife could bear children (a certificate and affidavit were on record asserting infertility). The trial court had concluded, and the High Court agreed, that this removed the appellant's apprehension about future children causing neglect.
  4. The High Court relied on its own observation from a chamber interview with Km. Swati and from the presence of the respondent's family in court: Km. Swati appeared normal, happy, well-fed and affectionate toward her step-mother, Smt. Usha. The Court took these observations as evidence that Smt. Usha had been providing care, affection and compassion to Km. Swati.
  5. The Court noted that the appellant had not impugned the bona fides and care provided by the respondent and his second wife to their younger daughter, Km. Surati, during the seven-plus years she had been with them; this supported the conclusion that they were capable caregivers.
  6. In assessing the child's expressed wish to remain with the grandparents, the Court held that although Km. Swati told the judge she wished to stay with the grandparents, that wish was not determinative. The Court explained that a child of less than 12 years might be influenced by attachment developed during her stay with the grandparents and lacked the maturity to foresee future consequences. The Court also noted the appellant's advanced age and concluded that grandparents might be less able to provide the same level of long-term care and opportunities as the father and his wife.
  7. The Court took into account the respondent's capacity to provide materially and educationally for the child: the respondent was serving in the U.S.A., earning a substantial salary and had admitted the younger daughter to a good school. The Court accepted the trial court's inference that the first child should not be deprived of high education and better facilities available in the respondent's foreign residence.
  8. The Court considered the precedents cited by both sides. It found that those precedents emphasised the welfare of the child as the paramount consideration, but that their facts were not on all fours with the present case; applying them, the Court concluded that the welfare considerations pointed in favour of restoring custody to the father.
  9. Finally, the Court observed that the appellant had taken steps—bringing the child to Dehradun in May 1996 ostensibly for summer vacation and later making a police complaint on 26-6-1996 followed by filing the custody petition on 2-7-1996—and concluded that the appellant's conduct indicated a deliberate attempt to keep the child away from the respondent rather than a genuine, long-term custody claim.

Holding and Implications

Core Ruling: Appeal dismissed; the judgment and order dated 9-8-2000 of the trial court are confirmed; the custody of the minor Km. Swati is to be restored to the respondent (the father).

Implications and Consequences

  • The trial court's dismissal of the appellant's petition and allowance of the respondent's counter-claim for return of the minor was affirmed.
  • The respondent (father) is entitled to enforce the trial court's order under the provisions of Section 25 of the Guardians and Wards Act, 1890, if custody is not amicably restored to him.
  • The High Court recorded an expectation and hope that the respondent and his wife would honour assurances (given in paragraph 7 of an affidavit dated 2-9-2000) to maintain a good relationship with the appellant and his wife; specifically, the respondent undertook either to send both daughters to Dehradun during summer vacations in the U.S.A. school year or, if that did not happen, to invite the petitioner and his wife to the U.S.A. and pay their travel expenses so they could stay with the children.
  • No new legal precedent was announced; the decision applies settled principles giving paramount importance to the welfare of the child and confirms that a father's legal right to custody will not be displaced without convincing evidence that his custody would be detrimental to the child's welfare.

Outcome: Appeal dismissed; custody to be restored to father; trial court order dated 9-8-2000 confirmed; respondent may enforce custody under Section 25 if necessary.

Show full summary ...

    Bal Krishna Pandey, v. Sanjeev Bajpayee,

    1. This 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 Bajpai 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 Page: 2custody of the said minor. Petition was preferred as provided under Section 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 with the 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 retain 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 brought up both the daughters and therefore, the welfare of the minor daughter Km. Swati also require 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 Page: 3remain 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 lie 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 take 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 steps-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 afterthought 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 run 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 Page: 4internal 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. Swati aged about eight years remained clued 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 owe 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 A.G Venkatakrishnaiah v. S.A Sathyakumar, AIR 1978 Kant 220, in support of the contention that the father's right to the custody of his minor child is circumscribed by the consideration of the welfare of the minor. No doubt in a peculiar circumstance and on a particular fact the father may be held unfit to claim the custody of his minor child as a guardian, but the facts of the instant case tell a different story. On consideration of the earlier discussion the reported decision has no application here and the respondent, the father of the minor Km. Swati could not have been found unfit to claim the custody of the said minor.

    13. Another reported decision, 1983 Hindu LR 181 (Deram Seethamahalakshmi alias Dabir Latha v. Kala Seethamahalakshmamma) 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 the grandfather. Another decision of Delhi High Court in the case of Jaswant Kaur v. Manjit Singh Marwaha, (1984) 2 DMC 372 : (AIR 1985 Delhi 159) 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 Page: 5Km. 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 require 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 stepmother.” 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 his 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 appear 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 No. 7 of the affidavit of Page: 6attorney 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 do not want to bear bad feeling for the petitioner (appellant) and his wife and want 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.

    Appeal dismissed.

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    Comments

    Bal Krishna Pandey, v. Sanjeev Bajpayee,
    (Jul 1, 2002)