23 Dec 2022 7:30 AM GMT
The Chhattisgarh High Court has recently observed that merely because the father is the natural guardian of his minor son, the issue of custody cannot automatically be decided in his favour.A Division Bench of Justice Goutam Bhaduri and Justice Radhakishan Agrawal reiterated that the welfare of the child is what takes precedence in such matters and that parents should have a real-life...
The Chhattisgarh High Court has recently observed that merely because the father is the natural guardian of his minor son, the issue of custody cannot automatically be decided in his favour.
A Division Bench of Justice Goutam Bhaduri and Justice Radhakishan Agrawal reiterated that the welfare of the child is what takes precedence in such matters and that parents should have a real-life attachment with their minor child to seek custody.
"The welfare of the minor is a proposition, which depends on a host of factors. Sufficient means to raise the minor is one of the factors, which governs the issue of welfare of minor, but that cannot always be the sole determining factor. If the mother or father, who is seeking custody of the minor does not have attachment with the child in real sense, it will discourage the Court to direct handing over custody to such appellant."
The Court was adjudicating upon an appeal filed by the father of a minor boy under Section 19(1) of the Family Courts Act against the dismissal of his application under Section 6 of the Hindu Minority and Guardianship Act for grant of guardianship of his son from the child's maternal grandfather.
The appellant-father submitted that he married one Mohini Bai 15 years ago and that a son was born in the wedlock. He argued that his wife later suffered from a fractured spine after which he used to take care of her treatment. According to him, his wife left his residence and moved back to her maternal residence in 2014 with no notice, and refused to return despite his requests.
Subsequently, the wife filed an application under Section 125 of CrPC before the Family Court for maintenance but she passed away during the proceedings. The application was however allowed and a maintenance of Rs.2,000 was awarded. Meanwhile, the child remained in the lawful custody of the child's maternal grandfather (respondent).
Thereafter, the appellant filed an application claiming custody of the child on the ground that he being the natural guardian of the child is legally entitled for the custody. It was further pleaded that he was financial well-off and it would not be proper to deprive the child from love and affection of his father.
However, the respondent presented a different set of facts according to which the wife died due to the physical cruelty meted out on her by the appellant. The grandfather submitted that the appellant had never visited his son after his birth and that he had also contracted a second marriage. It was added that the respondent was maintaining the child with all due caution and care.
The Family Court thereby dismissed the appellant's application for custody.
Advocate Hemant Kesharwani appearing for the appellant submitted that the Family Court ought to have considered the paramount interest of the minor child, and that it had failed to appreciate that father is a natural guardian and is entitled to get the custody of minor child.
However, Advocate Abhishek Sharma representing the respondents submitted that the appellant has no sufficient means of income to provide better education for the minor child and argued that the decision of the Family Court did not call for any interference.
The Court recalled that in the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration. Under Section 17 of the Guardians and Wards Act, the Court is under a duty to appoint the most suitable person amongst the rival claimants for guardianship, although a person who under the personal law would be entitled to the custody of the child in preference to any one else, while guided by the sole consideration of the minor's welfare.
The Division Bench also found that several Supreme Court decisions had reiterated that the welfare of the child takes precedence over the rights of the parents under a statute un matters relating to custody of a minor child. Further, the Supreme Court in Athar Hussain v. Syed Siraj Ahmed & Ors [(2010) 2 SCC 654] held that the second marriage of the appellant, though a factor that cannot disentitle him to the custody of the children, yet is an important factor to be taken into account.
While dismissing the appellant's prayer for custody, the Family Court had observed that neither the appellant nor his parents had ever enquired about the child nor visited him on any occasion, and therefore, merely because father (appellant) is the natural guardian, the custody of minor child cannot be handed over to him.
The Court verified if the appellant had in fact ever met his child since his birth and the appellant replied in the negative. The Bench thus concluded that the appellant had not taken any effort all along to meet his child or tend to his needs.
"Thus, it really becomes important that when the appellant had no love and affection for his newly born son, nor any effort was made by him seeking his custody soon after his birth, it does not impress our judicial conscience that the appellant is really interested in the well being of his child."
The Court also noted that there was no material to show that the welfare of the minor child was at peril or that he was not happy with his maternal grandparents. Therefore, it was found that the Family Court was justified in passing its order.
At this stage, the appellant sought for visitation rights to meet his minor child. The Court took the view that the appellant being the father and natural guardian was entitled to visit his minor child.
As such, the appeal was dismissed. However, the father was granted visitation rights once a month before the Family Court and fortnightly contact rights.
Case Title: Prabhat v. XXX & Anr.
Citation: 2022 LiveLaw (Chh) 82
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