JUDGMENT
Abhay Naik, J.
1. This is an appeal under Section 47 of Guardians and Wards Act, 1890 against the judgment dated 25-2-2004. The appellant has claimed the custody of his daughter Ku. Roshani from her maternal grandfather.
2. The case of the appellant/applicant is that he is the natural father of Ku. Roshani and is in employment of Railways. It is submitted that wife of the applicant Smt. Batto Bai died on 29-11-1994. At that time Ku. Roshani was aged about one year. Looking to the infancy of Ku. Roshani at the time of death of her mother, she was permitted to reside with the non-applicant No. 2, who happened to be the father of Batto Bai. It is stated that Ku. Roshani was aged 8 years at the time of submitting the petition under Section 6 of Hindu Minority and Guardianship Act.
3. The appellant has stated that he is staying at Jabalpur whereas, the respondent No. 2 is residing at Gadarwara. For the welfare of Ku. Roshani, it is contended that the same may be secured if the custody of Ku. Roshani is handed over to the appellant being her natural father. Moreover, it is stated that the appellant has good means for upbringing of his daughter whereas, the respondent No. 2 is aged about 65 years and has no source of income. So, it is contended that the welfare of Ku. Roshani will be more protected if her custody is handed over to the appellant.
4. The defendant/respondent No. 2 opposed the claim of the appellant, he contended that Batto Bai was tortured mentally and physically by the appellant and the ailment was developed in her due to this. It is stated that Batto Bai ultimately died due to torture inflicted by the appellant. It is stated that the appellant did not take care for up-bringing of his daughter and has been directed to pay the maintenance at the rate of Rs. 300/- per month which, too, has not been paid. It was denied that the respondent No. 2 has no income of his own. It is submitted by the respondent No. 2 that he is taking very much care of Ku. Roshani, who is being regularly sent to school to seek education. It is submitted that the welfare of Ku. Roshani can not be secured by handing over to her father.
5. After recording the evidence, the learned Trial Judge dismissed the application under Section 6 of the Hindu Minority and Guardianship Act, 1956 on 25-2-2004, holding that the appellant has not cared to look after Ku. Roshani and has not taken steps to obtain her custody. Relying upon the statement of Ku. Roshani herself recorded by the learned Subordinate Judge, it has been held that her custody can not be directed to be handed over to the appellant, as the same will not be in her welfare. Hence, the present appeal.
6. Shri Sheel Nagu, learned Counsel for the appellant appeared and made submissions in support of the claim for custody of daughter. None appeared for the respondents though served. However, in the absence of learned Counsel for the respondents this Court is fully aware that in the matters relating to custody of the minor, the welfare of the minor is predominant consideration. Hence, even though it is open to the Court to look into the views of a minor, who is capable of forming intelligent opinion, it is not bound to accept the minor’s choice if her welfare may be more secured according to the Court by handing over her custody to a person capable of providing good education, status and protection. The conflicting principle for the custody of minor child are the legal right of the natural guardian and welfare of the minor child. In case of conflict the welfare of minor is of paramount consideration. However, the legal right of the natural guardian may be protected ensuring the welfare of the minor child. This Court is quite competent in the present case to take care of both the things. Obviously, the right of father to the custody of minor child is not absolute but is subservient to the paramount consideration of the welfare of minor child. Applying these parameters, the case in hand is liable to be decided.
7. I have considered the submissions made by the learned Counsel for the appellant. Admittedly, the appellant is a natural father of Ku. Roshani, i.e., respondent No. 1, who is stated to have born on 28-5-1992. Presently, the girl is aged 13 years. The mother of Ku. Roshani, has already died on 29-11-1994. The appellant is a Railway employee posted at Jabalpur. His monthly gross salary is stated to be Rs. 6,728/- and after deductions he is in receipt of Rs. 5,957/-per month as net salary. On the other hand, the respondent No. 2 has failed to establish by giving any cogent evidence that he has a regular income. The respondent No. 2 has stated on oath that he owns a shop and is capable to look after Ku. Roshani. However, the registration under the Shop and Establishment Act is not produced and, no ledger is produced in the Court to show the extent of business and/or earnings. Moreover, Ku. Roshani, has herself stated that her father provides Rs. 400/- per month which are being utilized for her schooling and maintenance. Thus, the appellant is in better financial condition and he is more capable of maintaining his own daughter.
8. It is further stated that the mother of the appellant and the widow sister of the appellant are also staying with him as family members. In view of their presence it can not be said that Ku. Roshani will find any problem in staying at her father’s residence.
9. Before deciding the appeal I shall have to take into consideration the relevant provisions of the Hindu Minority and Guardianship Act, 1956 and of Guardian and Wards Act, 1890. Section 6 of Hindu Minority and Guardianship Act lays down that the natural guardian of minor Hindu unmarried girl in respect of the person as well as the property shall be the father and after him the mother. Since the age of Ku. Roshani is more than 5 years, obviously the appellant being her father is her natural guardian. Proviso to Section 6 is in the nature of disqualification for being natural guardian in case if the father ceases to be Hindu or renounces the world completely or finally by becoming a hermit or ascetic. In the present case, the appellant is an employee of Railway and has not incurred the disqualification under the said provision.
10. Section 13 of the said Act prescribes the appointment or declaration of any person as guardian of Hindu minor by Court. The welfare of minor should be the paramount consideration. It further lays down that no person shall be entitled to the guardianship by virtue of provisions of the Act (supra) or of any law relating to guardianship among Hindus, if the Court is of the opinion, the guardianship will not be for the welfare of the minor. Little more and definitely more exhaustive provisions are made in Section 17 of Guardians and Wards Act, which is reproduced below :–
“17. Matters to be considered by the Court in appointing guardian.– (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent and any existing or previous relations of the proposed guardian with the minor of his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
(4) (Omitted by Act III of 1951, Section 3 and Schedule).
(5) This Court shall not appoint or declare any person to be a guardian against his will.”
11. Although the respondent No. 2, has accused the appellant that the later had tortured his wife, but there is no cogent proof in support of his statement. No police report was lodged against the appellant and no action seems to have been taken against him in the matter. In view of this, it can not be said that the appellant has incurred any kind of disentitlement and/or disqualification from seeking custody of his daughter under any law.
12. It is true that Ku. Roshani has been staying with her maternal grand-parents since she was infant or at the most a toddler. The explanation offered by the appellant is that Ku. Roshani was aged about one year and, therefore, it was thought proper to allow her to reside with her maternal grand-parent. This explanation is not unnatural. However, Ku. Roshani, has now attained the age when she can take her own care more so, while residing with her paternal grand-mother and sister of his father. The appellant being the natural father of Ku. Roshani has obviously more affection and more concern about her welfare. Although, Ku. Roshani, has stated on oath that she does not want to see her father, her this version seems to be a tutored one because in the preceding paragraph she has clearly stated that her father is employed in Railways and she is prepared to acquire education by staying with her father. She has also stated on oath in Paragraph 3 that her maintenance would not have been possible if her father had not paid the maintenance amount. She admitted in Paragraph 4 that her maternal grand-father has no property or employment. She has stated in Paragraph 5 that maintenance of herself and her maternal parents is being managed by Rs. 400/- which are being paid by her father. Taking the entire statement of Ku. Roshani into consideration a single sentence appearing in Paragraph 7 of her statement that she does not want to see her father seems to be a tutored one and the learned Trial Judge has committed a grave error in ignoring the aforesaid other relevant versions made by Ku. Roshani in Court in her statement. The learned Trial Judge has not properly appreciated the statement of Ku. Roshani and has given undue significance to a single sentence against her father which in the light of the entire statement did not reflect her wishes or intention at all. Moreover, Ku. Roshani was aged about 11 years when the statement was recorded and was not capable of forming an intelligent opinion about her custody and/or welfare. Since Ku. Roshani has been staying with her maternal grand-parents since her infancy she must have developed affinity and affection for them. However, same can not be given undue weightage or importance so as to deprive her natural father from seeking restoration of the custody of his daughter.
13. Coming to the question of welfare of Ku. Roshani, it is clearly established that the petitioner being an employee of Railways has a sound financial position. His mother and widow sister are also staying with him who will definitely take care of Ku. Roshani. The applicant has also examined his widow sister Janki Bai as P.W. 2, who has expressed her concern for the welfare of the daughter of her brother. Thus, due care of Ku. Roshani is liable to be taken at her father’s residence and thus the welfare of Ku. Roshani will be more secured if the custody is handed over to the appellant.
14. In view of the aforesaid discussion, it is finally found that the appellant being the father and natural guardian of Ku. Roshani is entitled to the custody of his daughter Ku. Roshani whose welfare will be more secured and protected socially and financially if her custody is handed over to the appellant. Moreover, Ku. Roshani will be approaching in few years to the age of marriage and the appellant being father will definitely take care of her education and marriage etc. which obviously would ensure her welfare.
15. The appellant being the natural father of Ku. Roshani has a natural affection for his daughter. In the instant case he had to part with the company of his minor daughter on account of the death of his wife during infancy of his daughter. Where the father had to part with the company of the child since her infancy on account of death of his wife and the child was looked after by her maternal grand-parents, the father being natural guardian is entitled to the custody of his minor daughter and the maternal grand parents of the minor daughter not being natural guardian have no right to keep Ku. Roshani with them, moreso, when she herself expresses her willingness to reside with her father and acquire good education. I may successfully refer to the case of Ankur Tripathi alias Tinnu v. Radhey Shyam Pandey and Ors. .
16. Accordingly, the appeal is allowed. The judgment of the learned Trial Judge is hereby set aside. It is directed that the respondent No. 2 shall handover the custody of Ku. Roshani to the appellant within one month which may enable the appellant to seek admission in a proper school at Jabalpur. Since Ku. Roshani, has been residing with her maternal grand-father for the last more than 11 years, it is directed that the respondent No. 2 may visit the residence of the appellant periodically and may also take Ku. Roshani with him for 3 to 4 days during the school holidays. This arrangement shall remain in force for a period of only one year commencing from the date of judgment. No order as to costs.