F. A. No.43 of 2003

16th October, 2008

Petitioner Counsel: DHARMENDRA BARTHWAL
Respondent Counsel: B. P. NAUTIYAL

Cases Cited:
Nil Ratan Kundu Vs. Abhijit Kundu, 2008 ALL SCR 2016 : 2008 AIR SCW 5769 [Para PARA7]

JUDGMENT

-PRAFULLA C. PANT, J.:- This appeal, preferred under Section 19 of Family Courts Act, 1984, is directed against the judgment and order dated 16-9-2003, passed by Principal Judge, Family Court, Dehradun, in Guardians and Wards case No.5 of 2002 and 8 of 2002, filed by the present appellant and respondent No.1 respectively, whereby the respondent's petition for custody of his children is allowed and the petition of the maternal grand father of the children has been dismissed.

2. Brief facts of the case are that respondent M. K. Agarwal, got married to Neerja Agarwal (since deceased) on 22-11-1991. Out of the wedlock, two children namely Aniruddh (son) and Saumya (daughter) were born on 5-9-1992 and 5-4-1995 respectively. On 23-8-1998, Neerja Agarwal died. On the complaint of her parents, a crime No.575 of 1998, was registered relating to offences punishable under Sections 498-A/304-B, I.P.C. with police Station Kotwali, Dehradun. It appears that M. K. Agarwal (respondent No.1) stood trial and finally acquitted of the charge on 23-5-2001 by Additional District and Sessions Judge, Vth Fast Track Court, Dehradun. Meanwhile, the children lived with their maternal grand parents. Shri. Yogesh Kumar Gupta (appellant) is maternal grand father of the children. Before acquittal of M. K. Agarwal of the charge framed against him in Sessions Trial No.27 of 2000, Yogesh Kumar Gupta (present appellant) instituted a case before the District Judge, Dehradun, as Guardianship case No.14 of 1998, for his appointment as guardian of the children. Also, the respondent filed a case for custody of the children. Both the cases were later transferred to the Court of Judge Family Court, Dehradun, where the cases were renumbered as Guardian and Wards cases No.5 of 2002 and 8 of 2002, which were disposed of vide common impugned order dated 16-9-2003.

3. We have heard learned counsel for the parties and also enquired from the children as to their willingness, and also perused the lower Court record.

4. The trial Court has allowed the petition of respondent No.1 on the ground that he is natural guardian and that he has been acquitted during the pendency of the case of charge of offences punishable under Sections 498-A and 304-B, I.P.C.

5. It is settled principle of law that what is important in the matters of custody of the children is their interest and welfare. That is the paramount consideration while giving custody of a child or appointing a person as guardian. In the present case no doubt respondent No.1 M. K. Agarwal being father is natural guardian of the children but the circumstance of the case are such, which disentitle him of the custody of the children. Particularly for the reason that the mother of the children has died while in the company of respondent No.1 who had to face trial relating to offences punishable under Sections 498-A and 304-B, I.P.C. Though he has been acquitted of the charge, we are of the view that merely for that reason the custody need not necessarily be given to him.

6. During the pendency of this appeal, we directed the appellant to produce both the children in the Court. Ms. Saumya was produced in the Court on 17-7-2008. This Court made enquiries from her. She categorically stated that she wants to live with her maternal grand parents and does not want to go with her father. Master Aniruddh Agarwal was produced in the Court today and he also specifically stated that he is happy with his maternal grand parents and maternal uncle and does not want to go with his father. On none of the dates, the father appeared in person and he was represented through his counsel. Both the children, as told by them are studying in prestigious schools of Dehradun. Though minors, they are grown up children. In the special circumstances of this case, having considered submissions of learned counsel for the parties, we found that the trial Court has erred in law in dismissing the application moved by the appellants and allowing the application of respondent No.1.

7. In a similar case, the Apex Court in Nil Ratan Kundu Vs. Abhijit Kundu, 2008 AIR SCW 5769 : [2008 ALL SCR 2016], while considering the matter relating to the custody of the children, has expressed the view that in such cases, where the father has stood trial relating to a case of dowry harassment, normally wishes of minor children must be ascertained before deciding as to whom the custody should be given. The facts of the present case are similar to the said case.

8. Therefore, considering the paramount interest of the children, their willingness and facts and the circumstances that the children have lost their mother and their father had to stand a trial relating to offences punishable under Sections 498-A and 304-B, I.P.C., we are of the view that in the interest of the justice, it will be just and proper to allow the custody of the children with their maternal grant parents and by appointing them as natural guardian. This Court is also conscious of the fact that the children are being given education in good schools by their maternal grand parents.

9. For the reasons, as discussed above, we allow this appeal and set aside the impugned judgment and order dated 16-9-2003, passed by Judge, Family Court, Dehradun. Application of the appellant Yogesh Kumar Gupta, moved before the trial Court is hereby allowed and the one instituted by respondent No.1, is hereby dismissed. However, no order as to costs.

Appeal allowed.