Welfare of the child in custody matters is foremost; Delhi High Court appoints maternal grandparents as ‘guardians’ of minor

delhi high court

Delhi High Court: An appeal was filed under Section 19 of the Family Courts Act, 1984 by the appellants against the impugned Order dated 21-03-2018 vide which the petition filed by the appellants/maternal grandparents of the minor child to be appointed as ‘Guardian’ and to seek permanent custody was dismissed. A division bench of Suresh Kumar Kait and Neena Bansal Krishna, JJ., dismissed the appeal and appointed the appellants as guardians but granted visitation rights to the father until further orders.

A petition was filed under Section 7 read with Section 25 of the Guardians and Wards Act, 1890 by the maternal grandparents/appellants to be appointed as ‘guardian’ seeking permanent custody of their grandson Master Rehan. The daughter of the appellants was married to the respondent and was allegedly killed on account of dowry demand and harassment within 7 years of marriage. The FIR under Sections 304-B/34 IPC was registered against the respondent and his parents who were thereby arrested and sent to judicial custody. A Guardianship Petition was filed by maternal grandparents/appellants seeking custody of the child which was granted. The respondent and his other family members were acquitted in the criminal case and the respondent filed an application seeking interim custody of the child from the appellants under Section 12 of the Guardians and Wards Act, 1890 on the premise that he and his family members have been acquitted in the criminal case.

The Family Court initially directed the custody of the child to be handed over to the respondent from June 2013, however, the order was set aside and remanded back to be decided afresh. The Family Court vide order dated 29-05-2013 directed the custody of the child to remain with the maternal grandparents/appellants. The respondent filed two SLP(s) challenging the adverse orders which were dismissed. The appellants claimed custody of the child on the ground that the acquittal of the respondent in a criminal case is under challenge and the custody of the child has always been with the appellants and it is only after the acquittal that the respondent ever sought the transfer of the custody. Aggrieved by the dismissal of the Guardianship Petition, the present Appeal has been filed.

The Court noted that from the conjoint reading of the Hindu Adoptions and Maintenance Act, 1956 and the Guardians and Wards Act, 1890, it can be concluded that the natural father is the de-facto and de-jure Guardian of a minor but under the Guardian and Wards Act, 1890, if it is considered that it is in the interest and welfare of the child that some other person may be appointed as a Guardian, the Court may do so after considering the interest and welfare of the child and his intelligent preference. To appoint any person as a Guardian, it follows as precursor that the natural father who is the Guardian of a minor in terms of the Hindu Adoptions and Maintenance Act, 1956 shall not be disqualified till such time unless he is found to be unfit to ensure the welfare of the child.

The Court concluded that no circumstances whatsoever have been brought on record to disqualify the respondent from being a Natural Guardian. The Family Court has thus rightly denied the appellants/maternal grandparents to be appointed as the Guardian of the minor. one needs to consider if the respondent has suffered any disqualification for losing the status of a Natural Guardian. Aside from a criminal trial, there is no other disqualification which has been brought on record. The other aspect that has been agitated is that he has since got remarried and has a child from his second marriage, therefore, he cannot be termed as a Natural Guardian. However, mere second marriage of the father in the circumstances when he has lost his first wife, cannot be held per-se a disqualification from his continuing to be a Natural Guardian. No circumstance whatsoever has been brought on record to disqualify the respondent from being a Natural Guardian. The learned Principal Judge, Family Courts has thus rightly denied the appellants/maternal grandparents to be appointed as the Guardian of the minor.

On the aspect of custody of the child, the Court opined that undeniably there can be no substitute for the affection of a natural parent and the maternal grandparents may have immense love and affection towards the child, but it cannot substitute the love and affection of a natural parent. Even the disparity in financial status cannot be a relevant factor for denying the custody of a child to the natural parent. However, in the matters of Guardianship and Custody, the dilemma is that the logic may say that the child must be in the custody of his father, but the circumstances and the intelligent preference of the child point out otherwise. It may not be in the interest and welfare of the child to uproot him from the family where he has been happily entrenched since the age of 1½ years.

The Court directed that the respondent/father shall have a right to meet the child on every first and third Saturday in the Children Room of the Family Courts, Karkardooma Courts, Delhi between 3 to 5 PM. In case the child is unable to come for visitation right on any Saturday, the meeting shall be held on the next working Saturday. The said arrangement shall continue for a period of 3 months from today, thereafter, timings shall be from 03:00 P.M. to 07:00 P.M. till further orders. However, the parties shall be at liberty to adjust the timings dependent upon the suitability of both the parties.

[Irshad v Nadeem, 2023 SCC OnLine Del 5394, decided on 01-09-2023]

Advocates who appeared in this case :

Mr.Jai Bansal, Advocate along with appellants in person.

Respondent in person.

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