JUDGMENT
A.P. Shrivastava, J.
1. This appeal is filed by the appellant under Section 19 of Family Court against the order dated 15-7-2004 passed by Presiding Officer of the Family Court, Smt. Prabha Khare in Case No. 2/02, by which the petition filed by the respondent No. 1 under Section 25 of the Guardian and Wards Act and allowed the petition by ordering to give the custody of minor to respondent No. 1.
2. In short, the facts of the case are that the respondent No. 1 married with the son of the appellant in the year 1995. After marriage one son and one daughter were also born. On 30-10-2002, the husband of respondent committed suicide and after his death appellant taken away his minor son Anup forcefully and kept in his custody. As respondent No. 1 is natural guardian so she is entitled to have the custody of the minor.
3. The case of the appellant is that he has filed complaint against the respondent No. 1 regarding murder of his son (husband of respondent No. 1) and the investigation is going on. Respondent No. 1 is responsible for murder of his son and the minor son Anup was the only eye witness in the incident. Therefore, respondent No. 1 wants to take custody of the minor son. After the death of husband of the respondent No. 1, she herself left the son, therefore looking to the welfare of the minor it is necessary that he should be kept in the custody of the appellant.
4. The Family Court after framing issues and recording the evidence of both the sides held that the minor is in custody of appellant, but he was not taken away forcefully. But the Court held that being natural guardian, respondent No. 1 is entitled for custody of the minor.
5. The impugned order has been challenged on the ground that the learned Court passed the order against law. The minor was examined in the Family Court and he deposed that he wants to stay with the appellant. The Trial Court ignored the wishes and welfare of the minor. Therefore, the order deserves to be set aside.
6. During the course of argument, rival contentions have been raised by the Counsel for the parties.
7. In the Family Court respondent No. 1 Nirmala was examined as A.W. 1 and she stated that her husband died on 30-10-2002 by committing suicide. Her daughter is residing with her, but her son Anup was in the custody of her in-laws and the appellant was not permitting to meet him. Her son was reading in Class 3 at Gwalior but she has no knowledge in which class he is studying in the village now. In Para 8 of the cross-examination she deposed that case of her husband was under consideration in Police Station, Gole-ka-Mandir and there was acquisition of murder of her husband alongwith some other persons. She denied that her son is the only eye witness of this incident therefore, she wants to take him in her custody. Sunita (A.W. 2) corroborated the version of Nirmala (A.W. 1). She is sister-in-law of Nirmala.
8. From the side of the appellant, Deshraj Singh (N.A.W. 1), Ramkishore Singh (N.A.W. 2) and minor Anup (N.A.W. 3) were examined. Ramkishore Singh deposed that after the death of his son, Anup was not taken forcefully. Nirmala herself left him to his place. In this regard Panchnama (Ex. P-1) was prepared in which Nirmala and her sister-in-law have also signed. It is stated that Anup was studying at Class 3 in Gwalior but as no papers were given by respondent No. 1 therefore, he was admitted in Class 1. Deshraj Singh (N.A.W. 1) supported the version of Ramkishore Singh (N.A.W. 2).
9. Anup was examined as N.A.W. 3. He was examined on 23-12-2003 and his age was written in the deposition sheet as 11 years. After preliminary questions he was examined by the Court and deposed that his grand father, the present appellant, has not taken him forcefully and he wants to remain with his grand-father. He also deposed that his mother is responsible for the death of his father. Therefore, he has no confidence on her. In cross-examination also he expressed his willingness to go with his grand father.
10. During the course of proceeding vide order dated 18-8-2005, the Court has ordered that it is proper to keep him at a different place in a different atmosphere. With the consent of parties, minor was admitted in the hostel run by Ramkrishna Shiksha Mission, Gwalior. He was again produced in the Court on 20-9-2005 and it is further directed that the child should be continued in the same hostel and he will be admitted in appropriate class according to his academic standard and age for this academic session. During this period mother and grand father of child will only deposit the fees and other expenses for the school. But parties are directed that they will not meet the child in the said school till the next date of hearing and it was directed that the case be listed in the month of April, 2006.
11. The case was listed for hearing on 25-4-2006. The child was produced in the Court from the custody of the teacher of the school and in the presence of both the Counsel he has expressed in the Court that he wants to reside with his grand father, that is, the present appellant.
12. A person applying for custody must, according to this section, be a guardian. Claim to custody is not a claim to property but is in the nature of trust for the benefit of the child. An order under Section 25 for returning of the minor to the guardian, cannot be passed unless it is established that he was taken away from the custody of the guardian. But the legal right of the guardian is always subordinate to the question of welfare of the minor.
13. The Trial Court assigned reason in the order that respondent No. 1 is a natural guardian of the minor and what is stated by the minor in his statement before the Court is not by his free will and held that due to pressure the minor was left with the grand father. From the statement of Nirmala (AW. 1) it is deposed that after the death of her husband she did not meet his son and never gone to village to meet her son. The Court also found that normally that a criminal complaint was lodged against respondent No. 1 is not sufficient ground to refuse the custody of the minor. Therefore, looking to the circumstances of the case, the Court has given verdict in favour of respondent No. 1 for the custody of the minor.
14. It is well settled that in matters concerning custody of minor children, welfare of the minor and not the legal right of this or that particular party is paramount consideration. Regarding custody of minor the following genuine facts arc to be kept in mind:
(a) Ascertainable wishes and feelings of the child concerned, considered in the light of his age and understanding.
(b) His physical, emotional and educational needs.
(c) The likely effect on him on any change in the circumstances.
(d) His age, sex, ground and any characteristics, which the Court considered relevant and lastly.
(e) Any harm which he has suffered or is at risk on suffering. Therefore, the Court should lake into consideration duly weightage to the relevant considerations and facts which appears to be just in the custody of the child welfare.
15. On the same guidelines about welfare of the child in Jayant Barar v. Deepak Barar AIR 1994 NOC 269 MP, the Court has expressed their opinion.
16. In this case, in the statement before the Court, the minor expressed his desire to live with his grand father. During the course of proceedings in appeal, by order of the Court, he was kept in hostel and both the parties were kept away so that he should not be influenced by either side. He has appeared before this Court on the date of final hearing of this appeal and in the Court he has again expressed that he wants to reside with his grand father, who is the present appellant.
17. The Apex Court has laid down some guidelines in similar circumstances in the case of Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi , in which it is laid down that,-
Pursuant to our order dated March 27,1992 the children namely, Vishal and Rikta are present before us in these chamber proceedings. Their maternal uncle Kirtikumar and their father Pradipkumar are also present, Vishal and Rikta both are intelligent children. They are more matured than their age. We. talked to the children exclusively for about 20/25 minutes in the chamber. Both of them are bitter about their father and narrated various episodes showing ill-treatment of their mother at the hands of their father. The categorically stated that they are not willing to live with their father. They further stated that they are very happy with their maternal uncle Kirtikumar who is looking after them very well. We tried to persuade the children to go and live with their father for some time but they refused to do so as at present. After talking to the children, and assessing their state of mind, we are of the view that it would not be in the interest and welfare of the children to hand over their custody to their father Pradipkumar. We are conscious that the father, being a natural guardian, has a preferential right to the custody of his minor children but keeping in view the facts and circumstances of this case and the wishes of the children, who according to us are intelligent enough to understand their will-being, we are not inclined to hand over the custody of Vishal and Rikta to their father at this stage.
18. In this case also the minor child is not willing to go with his mother. This he repeatedly expressed before the Court during his statement in the Trial Court and also at the lime of final hearing of this case before us. Therefore, the view taken by the Court is erroneous to send the child in the custody of the natural guardian, who is mother (respondent No. 1). There is no evidence on record that the grand father, who is appellant had kept the child forcefully or the child is also not willing to go with his grand father. In his statement in the Lower Court he categorically stated that he is not willing to go with his mother. He suspects that his father was murdered by his mother. He also apprehends that his mother will kill him. It may be that his apprehension may not be on a sound footing or even baseless but a child of 10-11 years cannot be permitted to live under such apprehension which may hamper his mental growth.
19. Therefore, keeping in view, the above decisions and looking to the facts and circumstances of the case, we are of the opinion that the Trial Court has committed error in permitting the custody of the child to respondent No. 1. Therefore, the finding recorded by the Court below is set aside. We, therefore, dispose of the appeal by issuing the following directions:
(1) The custody of the child after the present academic session be handed over to the appellant, who is grand father of the child.
(2) Appellant is also directed to provide best requisite facilities to the minor child for the sake of his future.
(3) Respondent No. 1 shall be permitted by the appellant to meet the child on holidays and other occasions with prior notice to the appellant.
20. Accordingly, the order of the Family Court dated 15-7-2004 is set aside. The appeal stands disposed of as per the above directions with no order as to costs.
