Thursday, May 10th, 2007

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2:08p	TODAY'S EDITORIAL: Unholy Wedlock http://timesofindia.indiatimes.com/Unholy_Wedlock/articleshow/2023988.cms TODAY'S EDITORIAL: Unholy Wedlock The Centre is considering amending the Dowry Prohibition Act so that the seven-year limit on registering cases under the Act no longer remains in force. This would effectively mean lifelong extension of the anti-dowry Act. There can be no doubt that the practice of dowry and occurrence of dowry deaths is the most heinous blot on Indian society. Having said that one needs to ask: Is an amendment to the dowry legislation necessary? Let us first look at the existing anti-dowry provisions. At present, the Dowry Prohibition Act is applicable if a married woman dies under mysterious circumstances. Under the Act, the accused ? usually the husband and sometimes in-laws ? is presumed guilty unless he can prove his innocence. The Act is, however, applicable for the first seven years of a couple's married life. If a married woman dies or is harmed under suspicious circumstances after seven years of marriage, Section 498A of the Indian Penal Code kicks in. Under this section, offenders are liable for imprisonment as well as a fine for an offence deemed to be matrimonial cruelty. The offence is non-bailable, non-compoundable and cognisable on a complaint made to the police by the victim or her relatives. These are fairly harsh measures by any standard. Going beyond the present anti-dowry provisions would be draconian, and would undermine the cardinal principle of law: a person is presumed innocent unless proven guilty. Since it came into force, there have been complaints about the misuse of Section 498A. The Malimath committee, set up to reform the criminal justice system, had found fault with Section 498A and recommended making the offence bailable. However, those in favour of these harsh measures, particularly women's organisations, have argued that there are few cases registered under the anti-dowry provisions and that it is taken recourse to only in extreme circumstances. If this is true, there is really no need to further tighten the law on dowry. The present proposal to extend anti-dowry provisions for a lifetime also risks making marriage an overtly legalistic affair. Marriage as an institution is a bedrock of society, and state intrusion into the privacy of couples is unwelcome. There is no doubt that the state must step in if there is a dowry death or harassment. However, adequate legal provisions for that already exist. These need to be enforced to the best abilities of the police and courts. Further measures will only undermine the law and risk its misuse. (Comment on this)
6:22p	Manchala Rushikesh v. Terala Pradeep Kumar and others [2001] INHCAP 80 (6 April 2001) THE HON'BLE SRI JUSTICE B. SUBHASHAN REDDY THE HON'BLE SRI JUSTICE GHULAM MOHAMMED CMA No. 1548 of 1998 06-04-2001 Manchala Rushikesh Terala Pradeep Kumar and others HELD: From a perusal of Section 25 of the Act, it is clear that it is attracted only if a ward leaves or is removed from the custody of a guardian....The guardian contemplated by this section includes every kind of guardian known to law.... From the above, it is clear that the father is the guardian of the minor until he is found unfit to be the guardian of the minor. The welfare of the minor is paramount consideration while ordering their custody. In view of the section 25 of the Act, the onus is on the person who opposes the application by a guardian for the custody of a ward under this section to make out that the welfare of the wards be better served by its being kept out of the custody of its guardian and retained in the custody of the person against whom the application is made. This onus is particularly heavy when the guardian is the father of the child. Likewise, under section 19 the burden of proof to deny the natural father the custody of his child would be very heavy to establish his unfitness and the court will require very strong reasons for interference with the father's right to custody. Counsel for the Petitioners : M/s. C. Poornaiah & Co. Counsel for respondents : Mr.Vijay Kumar Heroor. :Order: Judgment: (Per GHULAM MOHAMMED, J ) The unsuccessful petitioner-appellant preferred this appeal against the order dated 22.4.1998 in O.P.No.801 of 1994 on the file of the Principal District Judge, Ranga Reddy. The above O.P.No.801 of 1994 was preferred by the appellant-natural father of the wards, under section 25 of the Guardian and Wards Act, ( for short "the Act" ), for custody of minor children by name Shravani and Shravanti. For the purpose of convenience, the parties are addressed as petitioner and respondents as per their array in O.P.No.801 of 1994. The petitioner married the deceased on 12.9.1983 as per the Hindu rites and customs at Kanchibhavan, Ramkote, Hyderabad. Smt. Geetha joined the petitioner for marital life at petitioner's house. Smt. Geetha gave birth to twins namely Shravani and Shravanthi on 6.9.1986 at Swapna Nursing Home, Hyderabad. The cradle ceremony of the twins was performed at her mother's house and subsequently Smt. Geetha came to the petitioner's house. It is stated that petitioner's family is a joint family headed by their father Manchala Shankaraiah who, however, died on 23.5.1991. Smt. Geetha lived with the petitioner happily till 23.7.1987. On 21.7.1987 Smt. Geetha and the petitioner visited the house of the respondents for attending annual ceremony of father of Smt. Geetha and they returned to Bhongir. It is further stated that on 23.7.1987 on the midnight Smt. Geetha committed suicide. It is stated that a partnership business in the name of Shi Radhakrishna Tiles factory consisting of the brother of the petitioner, her sister's husband, namely Uppalanchi Muralidhar Rao and V. Lingam ran into losses and came to be closed. Smt. Geetha demanded her sister's husband Muralidhar Rao and her sister to settle the affairs of the said factory for which they did not respond and her brothers and mother did not extent the support of her demand. Having disgusted with the attitude of the respondents she committed suicide. It is further stated that the minor children were ten months old as on the date of the death of Smt. Geetha. On the morning of 24.7.1987 all the respondents came to Bhongir and without proper enquiries with the petitioner and other members of his family, the 1st respondent lodged a complaint in Bhongir Police Station. The Police registered a case against the petitioner and other members of his family under section 304-B IPC. After competition of the investigation the police filed a final report stating that it is a mistake of fact. The respondents have taken the children to their house at Hyderabad and brought them back to Bhongir on the next day and they requested the petitioner to show extra care on the children. The children were with them for six months and an amount of Rs.1,00,000/- each in the name of the children was deposited by the petitioner in UTI Children Growth Fund. Having noticed this deposit, the respondents approached the petitioner and requested him to send the children to their house for some time on the ground that the petitioner did not recover from mental shock due to sudden demise of his wife. They promised the petitioner to send the children once or twice in a week to be with him for a day or two. The petitioner reluctantly conceded to the request of the respondents. The respondents have kept up their promise for one year and later changed their mind and did not permit the petitioner to visit their house to see the children. The petitioner demanded the respondents to send back his children. But the respondents postponed the matter on one pretext or the other and got them admitted in Princeton Public School, Hyderabad. The petitioner used to visit the school to see the children but the respondents did not even like his visits and informed the school authorities not to permit the petitioner to see the children. Thus, it is stated that the respondents have kept the children away from the petitioner in a planned manner. It is further stated by the petitioner that during his visits to school he came to know that the respondents 1 and 3 admitted the children by changing their surnames and styling the children as their own daughters. When the petitioner tried to take copies of the school records such as admission register, the respondent filed a petition on 10.4.1993 with false allegations that the petitioner is trying to harass them and that he committed murder of their sister. The petitioner got issued a legal notice on 17.6.1993 to the respondents directing them to send back the Wards to him, for which the respondent got issued a reply denying the right of the petitioner for custody of the children. Hence, the present O.P. was filed by the natural father of the Wards for return of the custody of the wards from the respondents. The respondents filed a counter opposing the application of the petitioner. It is pertinent to note that the respondents have not disputed that the petitioner is natural father of the minor children. It is stated that the wards were resided at Bhongir with the petitioner till 24.7.1987 on which day their mother was killed by the petitioner and members of his family. The children were aged about 10 months as on the date of death of their mother and they never stayed at Bhongir after 24.7.1987. The contention of the petitioner that Smt. Geetha lived happily with the petitioner till the mid-night of 23.07.1987 is utterly false. The petitioner and the member of his family harassed Geetha for more dowry and subjected her to un-toleratable mental agony and cruelty. On 21-7-1987, when the deceased Geetha visited Saroornagar, Hyderabad for attending funeral ceremony of her father Ramnath Guptha, the deceased disclosed her mother about the cruel attitude and treatment of the petitioner and members of his family. It is further stated that in order to escape from the clutches of law, the petitioner started pasteurizing the brutal murder of Geetha as suicide and that the respondent No.1 has filed a complaint with S.H.O. Bhongir Police Station who registered the case in Crime No.88 of 1987 under section 304B IPC against the petitioner and members of his family. It is the case of the respondents that the police did not conduct any further investigation and did not record statements of any witnesses, and since there was no progress in the case, the respondent no.1 filed a petition before the police Bhongir and also in the Court of Judicial First Class Magistrate, Bhongir for necessary action and that application was rejected. Since the date of death of Geetha the minor children have been staying under custody of respondent No.1 and they were neither sent by the respondents on any occasion nor taken to Bhongir by the petitioner. It is stated in the counter that the petitioner and his family members decided to get rid of burden of the children and them gave minor children to the respondent 1 and 3 in adoption for which the respondents have agreed by receiving the wards in the presence of well wishers and the petitioner also gave a written declaration Ex.B.1 dated 2.2.1988 ratifying the earlier adoption. It is further stated that the respondents have sent elaborate reply to the petitioner's notice stating that the petitioner has no right to demand the custody of the children. The petitioner having not taken any steps at any point of time is claiming custody of the wards with a view to swallow the money invested in the welfare of the children and he has no locus standi to claim the same. On the above pleadings, the parties have adduced the evidence. On behalf of the petitioner P.Ws.1 to 4 were examined and Exs.A.1 to A.40 were marked. P.W.1 is the petitioner-natural father of the wards, P.W.2 is the younger brother of P.W.1, P.W.3 is sister-in-law of P.W.1 and P.W.4 is friend of P.W.1 who deposed that no proposal for adoption of minor girls was discussed and dispute the last three sentences regarding adoption of minors in Ex.B.1. The respondents examined RWs.1 to 3 and marked Exs.B.1 to B.68. R.W.1 who is maternal uncle, R.W.2 friend of R.W.1 who is also attestor of Ex.B.1, and R.W.3 friend of R.W.1 and also attestor of Ex.B.1, and marked Exs.B.1 to B.68. On the above pleadings, the trial Court framed an issue as under: " The point for consideration is : Whether the petitioner is entitled to custody of minor children Shravani and Shravanthi ? " The lower Court on consideration of the evidence, declined to grant custody of the wards to the petitioner. Hence, the present appeal by the petitioner. Learned counsel for the appellant contended that the learned Judge has not considered the matter in proper perspective and without noticing the fact that the father being the natural and lawful guardian having a preferential right to the custody of the minor children, the lower Court has erred in observing that the petitioner has not taken any interest of the wards. It is further contended that the observation of the learned Judge that the petitioner has not evinced any interest is based on surmises and conjectures and in fact the evidence adduced by the petitioner Exs.A.1 to A.40 would show that he showed interest for the welfare of the children and he is not unfit to be the guardian of the children. It is further contended by the learned counsel for the petitioner that the lower court ought to have noticed that once it is not disputed that the father is not fit to be the natural guardian, it is presumed that the children's interest will be properly protected by the father and that the learned Judge by placing undue reliance on Ex.B.1, which is a declaration given by the petitioner, erroneously held that since the date of declaration the petitioner ceased to have any interest over the property of minor children. It is the case of the petitioner that the last three sentences in Ex.B.1 relating to adoption of minor girls were introduced subsequent to obtaining of his signature. On the other hand, learned counsel for the respondents supported the order under appeal. The learned counsel for the respondents contended that the trial court having noticed about the care and custody and also welfare of the children who are staying with the maternal uncle since the death of their mother, has rightly dismissed the petition. The legal controversy thus lies in a narrow compass namely whether the petitioner who is the natural father of the wards is entitled to the custody of the wards the provisions of the Act. To decide the same it is expedient to examine the relevant provisions of the Act. The relevant provision is section 17 and 19 of the Act. Section 17 provides for matters to be considered by the Court in appointing guardian and while section 19 deals with guardians not to be appointed in certain cases. " 17 (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, any existing or previous relations of the proposed guardian with the minor or his property. (3) ... Section 19 reads as follows : " Nothing in this chapter shall authorize the court to appoint or to declare a guardian of the property of a minor whose property is under the superintendence of a court of Wards or to appoint and declare a guardian of the person. (a) of a minor who is a married female and whose husband is not, in the opinion of the court, unfit to be guardian of her person, or (b) of a minor whose father is living and is not, in the opinion of the court, unfit to be guardian of the person of the minor, or (c) ..... The issue relating to this aspect was considered by the Apex Court in ROSY JACOB v. JACOB A. CHAKRAMAKKAL ( (1) 1973 SCC 840 ). The Supreme Court in this case has held that from a perusal of Section 25 of the Act, it is clear that it is attracted only if a ward leaves or is removed from the custody of a guardian of his person and the court is empowered to make an order for the return of the ward to his guardian if it is of the opinion that it will be for the welfare of the ward to return to the custody of his guardian. The Court is entrusted with a judicial discretion to order return of the ward to the custody of his guardian, if it forms an opinion that such return is for the ward's welfare. The use of the words " ward" and " guardian" leaves little doubt that it is the guardian who, having the care of the person of his ward, has been deprived of the same and is in the capacity of guardian entitled to the custody of such ward, that can seek the assistance of the Court for the return of his ward to his custody. The guardian contemplated by this section includes every kind of guardian known to law. The Supreme Court in that judgment has further held as under : " Section 25 of the Guardians and Wards Act contemplates not only actually physical custody but also constructive custody of the guardian which term includes all categories of guardians. The object and purpose of this provision being ex facie to ensure the welfare of the minor ward, which necessarily involves due protection of the right of his guardian to properly look after the ward's health, maintenance and education, this section demands reasonably liberal interpretation so a to effectuate that object. Hyper-technicalities should not be allowed to deprive the guardian, the necessary assistance from the Court in effectively discharging his duties and obligations towards his ward so as to promote the latter's welfare. ...... The Court's power under section 25 of the Guardians and Wards Act is to be governed primarily by the consideration of the welfare of the minors concerned. The discretion vested in the Court is, as is the case with all judicial discretions to be exercised judiciously in the background of all the relevant facts and circumstances. Each case has to be decided o its own facts and other cases can hardly serve as binding precedents, the facts of two cases in this respect being seldom- if ever identical. ...... In considering the question of the welfare of the minors due regard has of course to be paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minor's welfare. There is a presumption that a minor's parents would do their very best to promote the children's welfare and, if necessary, would not grudge any sacrifice of their own personal interest and pleasure. This presumption arises because of the natural, selfless affection normally expected from the parents for their children... Where there is no dichotomy between the fitness of the father to be entrusted with the custody of his minor children and considerations of their welfare, the father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. If the custody of the father cannot promote their welfare equally or better than the custody of the mother, then, he cannot claim indefeasible right to their custody under Section 25 merely because there is no defect in his personal character and he has attachment for his children - which every normal parent has." From the above, it is clear that the father is the guardian of the minor until he is found unfit to be the guardian of the minor. The welfare of the minor is paramount consideration while ordering their custody. In view of the section 25 of the Act, the onus is on the person who opposes the application by a guardian for the custody of a ward under this section to make out that the welfare of the wards be better served by its being kept out of the custody of its guardian and retained in the custody of the person against whom the application is made. This onus is particularly heavy when the guardian is the father of the child. Likewise, under section 19 the burden of proof to deny the natural father the custody of his child would be very heavy to establish his unfitness and the court will require very strong reasons for interference with the father's right to custody. In the facts and circumstances of the present case, it is in this background of the legal position we have to analyze the evidence adduced, both oral as well as documentary, to prove the unfitness or otherwise of the father and also see whether the welfare of the child would be better served in the hands of the father or the respondents. The petitioner was examined as P.W.1. He deposed that the minor children were with him till March 1988 and thereafter his brothers-in-law and mother-in-law took the children to their house and he used to visit the house of his brother- in-law to see the children and later they prevented him. It is stated that in the month of February or March 1988 his brothers-in-law and mother-in-law came to Bhongir to negotiate regarding custody of minor children. It is further deposed that they ( respondents ) requested them to send both the minors for some period to their house, and at that time the petitioner was under shock due to the death of his wife. On their request and after consulting elders they sent the minor girls to respondents for some period. Once in a week either petitioner or his brother used to go to the house of the respondents and bring the children. It is further deposed that subsequently, their outlook changed and started avoiding to show the girls to the petitioner. It is further stated that without consulting the petitioner the respondents admitted both the minors in Princeton Public School, Hyderabad by changing the name of the father of the minor girls. It is further deposed that on many occasions the petitioner send the elderly persons for the custody of children and that they did not care with their advise. It is further deposed by the petitioner in his examination in chief that he did not marry keeping in view the welfare of the his minor daughters and that all his family members are ready and willing to look after the welfare of his daughters. The witness deposed that last three lines in page No.2 of Ex.B.1 and three signatures appearing on Page No.1 were not present when he signed on the document. In the cross examination nothing was elicited to disprove the statements of petitioner. P.W.2 who is the younger brother of P.W.1 deposed in the same lines as that of P.W.1. P.W.3 sister-in-law of the petitioner. She deposed that theirs' is a joint family and her children and children of brothers of her husband are living together for the purpose of education at Hyderabad. P.Ws.2 and 3 have consistently denied about the adoption of the children by the maternal uncles. P.W.4, who was present in the auditor's office at the time of P.W.1 giving declaration - Ex.B.1, on perusal of the document Ex.B.1, deposed that the last three lines regarding adoption of minor were not typed in Ex.B.1 and that no such proposal for adoption of the minor girls was discussed. He deposed that in his presence R.W.1, P.W.1 signed over the document and at that time except P.W.1 no one signed as 2nd declarant. He further deposed that on that day Vidya Bhushan did not come to Auditor's office. The document was got written on the advise of Auditor keeping in view of tax problem. He also deposed about the deposit of investment of Rs.1,00,000/- in UTI in favour of each minor girl. R.W. 1- who is the maternal uncle deposed that the minor wards were brought from the house of the petitioner on 25.7.1987 and they are residing with him till now. He deposed that the minor children were admitted in the school and when they are exhibiting talent in the fields of singing and dancing the petitioner wanted custody of the wards. It is further stated that the minor children are in the custody of the maternal uncle since the death of her mother and they became closely affectionate and associate with the members of his family and for the last 11 years they are under the care and custody of the maternal uncle who took possible care to bring them up in the education. R.Ws.2 and 3 are claimed to be attestors of Ex.B.1. The learned Judge discarded the story put forth by the petitioner in view of Ex.A.24 which is an application submitted by the petitioner to Principal, Princeton Public School, L.B. Nagar, where two minor children were studying. " M. Shravani and M.Shravanthi are the twins born to me through my wife Manchala Geetha on 6.9.1986. Due to some circumstances best known to my deceased wife she committed suicide on 23.7.1987. Thereafter, as per the understanding between me and the brothers of my deceased wife my both the above said children who were minors aged about 10 months at the time of death of my wife, my brothers-in-law Terala Pradeep Kumar, Terala Vidhya Bhushan and Terala Virupaksha have requested me to take care of the said children for some time in their house. As I was also under mental distress and agony due to sudden death of my wife, I agreed for that proposal. Subsequently, I came to know that my above stated brothers-in-law joined the said two girls in your institution by changing the parents names and also surnames." The learned Judge further observing that as the presence of R.Ws.2 and 3 was not denied by the petitioner in his cross examination, there are no reasons to disbelieve the evidence of R.Ws.2 and 3, and held that Ex.B.1 declaration was signed by P.W.1 on 7.2.1988 and that contents of Ex.B.1 declaration show that P.W.1 seized to be the guardian for the property of minor children since that date. The learned Judge also observed that the children were staying with their maternal uncle since the date of death of deceased and that the evidence on record did not show that the petitioner has taken any care in bringing them up or he is in visiting terms with the respondents after the death of their mother. The Court observed that for the last 11 years the wards are under the care and custody of their maternal uncle who have taken care to bring them up in education and in extra curricular activities. It is not in dispute that Ex.B.1 is the declaration given by the petitioner. It also speaks about the investment in UTI for a sum of Rs.1,00,000/- each in favour of two minor girls. It further states that the petitioner has no claim or interest in the above said investment/money at any time, nor any of his successors in interest/legal heirs. It further states that Father, mother, brother, sister-in-law of the petitioner have gifted Rs.10,000/- each to raise the fund for investing Rs.1,00,000/- in the name of one child. Petitioner contributed Rs.1,00,000/- by selling gold, silver and other valuable articles and also her personal savings. The version of the petitioner is that last three lines, under Ex.B.1 regarding adoption of his daughters were added subsequent to signing of the document by the petitioner on Ex.B.1. The Court below observed that the question whether R.1 and R.3 adopted minor children Shravanti and Shravani is not the scope of enquiry in O.P., and the evidence adduced on either side on this respect needs no consideration for adjudication on the point involved in the petition. On perusal of the contents of Ex.B.1 the trial court held that Ex.B.1 was signed by P.W.1 on 7.2.1988 and that the contents of Ex.B.1 showed that the petitioner seized to be the guardian of the property of the minor children from that date. Curiously, R.W.1 in his examination in chief has deposed as follows: " Ex.B.1 is the document myself and my Advocate perused the document and we pointed out that aspect of giving girls in adoption was not mentioned in it as agreed by them. The petitioner took the document and written by incorporating the last 3 sentences of Ex.B.1 regarding the giving girls in adoption to us. When petitioner, myself, Ramesh ( PW 2 ), Eswar signed over Ex.B.1, R-3 also sign upon Ex.B.1. It is not correct to suggest that last 3 sentences of Ex.B.1 regarding the aspect of adoption of minors and also the word consented by is incorporated by us subsequently. The learned Judge observed that the petition is filed by the petitioner for custody of minor children and his claim is that he is the natural father of minor children and so he is entitled to their custody until he is proved to be unfit to be their guardian. However, the learned Judge without giving any finding on the aspect of whether the father is unfit to be the guardian of the minor children or not has dismissed the petition. The fact that the petitioner is natural father of the children is not disputed by the respondents at all. On a perusal of the entire material on record, there is no averment regarding unfitness of the father to be guardian and no instances are indicated by the respondents. It is only stated that since from the date of death of Geetha, the wards are staying with maternal uncle and as per Ex.B.1, the petitioner ceases to have any interest in the property of the wards in view of the adoption. The trial court disbelieved the evidence mainly relying upon Ex.B1, which itself creates a doubt in view of the insertion of the last three lines subsequently. In fact, as stated above, it was deposed by the R.W.1 in his examination in chief that subsequently the last three lines were inserted. In the earlier portion of the declaration, nowhere it is mentioned about the adoption. The petitioner consistently denied regarding the adoption.In this regard, learned counsel for the petitioner rightly contended that no endorsement was made by the petitioner on the alleged last three lines regarding adoption of the children and thus the findings of the lower Court on this aspect ex-facie suffer from perversity. In our view the findings of the court below in that regard are not correct. The another reason given by the trial court is that the evidence brought on record clearly shows that the appellant did not evince any interest in the minor children and it is only when the minor wards are showing proficiency in the dancing and singing, the petitioner came up with this application belatedly. The trial court has not recorded any specific finding about the unfitness of the natural father as required under section 19 of the Act, and in the absence of any evidence regarding the unfitness of the father, the trial court was not justified in denying the custody to the petitioner. The petitioner-natural father has invested a sum of Rs.1,00,000/- each in favour of the wards, claiming no right or interest in the said money. Added to that, there appears to be no evidence on record that the petitioner remarried again. A careful perusal of the evidence on record also does not give an impression that the interests of the minors would not be served if they are given custody to the petitioner. In the circumstances stated above, in our view, the court below erred in rejecting the petition filed by the natural father claiming custody of the children from the maternal uncle of the wards. Considering the totality of the circumstances, we hold that the petitioner is entitled to seek the (8 Comments | Comment on this)
6:22p	Manchala Rushikesh v. Terala Pradeep Kumar and others [2001] INHCAP 80 (6 April 2001) http://www.worldlii.org/in/cases/INHCAP/2001/80.html Manchala Rushikesh v. Terala Pradeep Kumar and others [2001] INHCAP 80 (6 April 2001) THE HON'BLE SRI JUSTICE B. SUBHASHAN REDDY THE HON'BLE SRI JUSTICE GHULAM MOHAMMED CMA No. 1548 of 1998 06-04-2001 Manchala Rushikesh Terala Pradeep Kumar and others HELD: From a perusal of Section 25 of the Act, it is clear that it is attracted only if a ward leaves or is removed from the custody of a guardian....The guardian contemplated by this section includes every kind of guardian known to law.... From the above, it is clear that the father is the guardian of the minor until he is found unfit to be the guardian of the minor. The welfare of the minor is paramount consideration while ordering their custody. In view of the section 25 of the Act, the onus is on the person who opposes the application by a guardian for the custody of a ward under this section to make out that the welfare of the wards be better served by its being kept out of the custody of its guardian and retained in the custody of the person against whom the application is made. This onus is particularly heavy when the guardian is the father of the child. Likewise, under section 19 the burden of proof to deny the natural father the custody of his child would be very heavy to establish his unfitness and the court will require very strong reasons for interference with the father's right to custody. Counsel for the Petitioners : M/s. C. Poornaiah & Co. Counsel for respondents : Mr.Vijay Kumar Heroor. :Order: Judgment: (Per GHULAM MOHAMMED, J ) The unsuccessful petitioner-appellant preferred this appeal against the order dated 22.4.1998 in O.P.No.801 of 1994 on the file of the Principal District Judge, Ranga Reddy. The above O.P.No.801 of 1994 was preferred by the appellant-natural father of the wards, under section 25 of the Guardian and Wards Act, ( for short "the Act" ), for custody of minor children by name Shravani and Shravanti. For the purpose of convenience, the parties are addressed as petitioner and respondents as per their array in O.P.No.801 of 1994. The petitioner married the deceased on 12.9.1983 as per the Hindu rites and customs at Kanchibhavan, Ramkote, Hyderabad. Smt. Geetha joined the petitioner for marital life at petitioner's house. Smt. Geetha gave birth to twins namely Shravani and Shravanthi on 6.9.1986 at Swapna Nursing Home, Hyderabad. The cradle ceremony of the twins was performed at her mother's house and subsequently Smt. Geetha came to the petitioner's house. It is stated that petitioner's family is a joint family headed by their father Manchala Shankaraiah who, however, died on 23.5.1991. Smt. Geetha lived with the petitioner happily till 23.7.1987. On 21.7.1987 Smt. Geetha and the petitioner visited the house of the respondents for attending annual ceremony of father of Smt. Geetha and they returned to Bhongir. It is further stated that on 23.7.1987 on the midnight Smt. Geetha committed suicide. It is stated that a partnership business in the name of Shi Radhakrishna Tiles factory consisting of the brother of the petitioner, her sister's husband, namely Uppalanchi Muralidhar Rao and V. Lingam ran into losses and came to be closed. Smt. Geetha demanded her sister's husband Muralidhar Rao and her sister to settle the affairs of the said factory for which they did not respond and her brothers and mother did not extent the support of her demand. Having disgusted with the attitude of the respondents she committed suicide. It is further stated that the minor children were ten months old as on the date of the death of Smt. Geetha. On the morning of 24.7.1987 all the respondents came to Bhongir and without proper enquiries with the petitioner and other members of his family, the 1st respondent lodged a complaint in Bhongir Police Station. The Police registered a case against the petitioner and other members of his family under section 304-B IPC. After competition of the investigation the police filed a final report stating that it is a mistake of fact. The respondents have taken the children to their house at Hyderabad and brought them back to Bhongir on the next day and they requested the petitioner to show extra care on the children. The children were with them for six months and an amount of Rs.1,00,000/- each in the name of the children was deposited by the petitioner in UTI Children Growth Fund. Having noticed this deposit, the respondents approached the petitioner and requested him to send the children to their house for some time on the ground that the petitioner did not recover from mental shock due to sudden demise of his wife. They promised the petitioner to send the children once or twice in a week to be with him for a day or two. The petitioner reluctantly conceded to the request of the respondents. The respondents have kept up their promise for one year and later changed their mind and did not permit the petitioner to visit their house to see the children. The petitioner demanded the respondents to send back his children. But the respondents postponed the matter on one pretext or the other and got them admitted in Princeton Public School, Hyderabad. The petitioner used to visit the school to see the children but the respondents did not even like his visits and informed the school authorities not to permit the petitioner to see the children. Thus, it is stated that the respondents have kept the children away from the petitioner in a planned manner. It is further stated by the petitioner that during his visits to school he came to know that the respondents 1 and 3 admitted the children by changing their surnames and styling the children as their own daughters. When the petitioner tried to take copies of the school records such as admission register, the respondent filed a petition on 10.4.1993 with false allegations that the petitioner is trying to harass them and that he committed murder of their sister. The petitioner got issued a legal notice on 17.6.1993 to the respondents directing them to send back the Wards to him, for which the respondent got issued a reply denying the right of the petitioner for custody of the children. Hence, the present O.P. was filed by the natural father of the Wards for return of the custody of the wards from the respondents. The respondents filed a counter opposing the application of the petitioner. It is pertinent to note that the respondents have not disputed that the petitioner is natural father of the minor children. It is stated that the wards were resided at Bhongir with the petitioner till 24.7.1987 on which day their mother was killed by the petitioner and members of his family. The children were aged about 10 months as on the date of death of their mother and they never stayed at Bhongir after 24.7.1987. The contention of the petitioner that Smt. Geetha lived happily with the petitioner till the mid-night of 23.07.1987 is utterly false. The petitioner and the member of his family harassed Geetha for more dowry and subjected her to un-toleratable mental agony and cruelty. On 21-7-1987, when the deceased Geetha visited Saroornagar, Hyderabad for attending funeral ceremony of her father Ramnath Guptha, the deceased disclosed her mother about the cruel attitude and treatment of the petitioner and members of his family. It is further stated that in order to escape from the clutches of law, the petitioner started pasteurizing the brutal murder of Geetha as suicide and that the respondent No.1 has filed a complaint with S.H.O. Bhongir Police Station who registered the case in Crime No.88 of 1987 under section 304B IPC against the petitioner and members of his family. It is the case of the respondents that the police did not conduct any further investigation and did not record statements of any witnesses, and since there was no progress in the case, the respondent no.1 filed a petition before the police Bhongir and also in the Court of Judicial First Class Magistrate, Bhongir for necessary action and that application was rejected. Since the date of death of Geetha the minor children have been staying under custody of respondent No.1 and they were neither sent by the respondents on any occasion nor taken to Bhongir by the petitioner. It is stated in the counter that the petitioner and his family members decided to get rid of burden of the children and them gave minor children to the respondent 1 and 3 in adoption for which the respondents have agreed by receiving the wards in the presence of well wishers and the petitioner also gave a written declaration Ex.B.1 dated 2.2.1988 ratifying the earlier adoption. It is further stated that the respondents have sent elaborate reply to the petitioner's notice stating that the petitioner has no right to demand the custody of the children. The petitioner having not taken any steps at any point of time is claiming custody of the wards with a view to swallow the money invested in the welfare of the children and he has no locus standi to claim the same. On the above pleadings, the parties have adduced the evidence. On behalf of the petitioner P.Ws.1 to 4 were examined and Exs.A.1 to A.40 were marked. P.W.1 is the petitioner-natural father of the wards, P.W.2 is the younger brother of P.W.1, P.W.3 is sister-in-law of P.W.1 and P.W.4 is friend of P.W.1 who deposed that no proposal for adoption of minor girls was discussed and dispute the last three sentences regarding adoption of minors in Ex.B.1. The respondents examined RWs.1 to 3 and marked Exs.B.1 to B.68. R.W.1 who is maternal uncle, R.W.2 friend of R.W.1 who is also attestor of Ex.B.1, and R.W.3 friend of R.W.1 and also attestor of Ex.B.1, and marked Exs.B.1 to B.68. On the above pleadings, the trial Court framed an issue as under: " The point for consideration is : Whether the petitioner is entitled to custody of minor children Shravani and Shravanthi ? " The lower Court on consideration of the evidence, declined to grant custody of the wards to the petitioner. Hence, the present appeal by the petitioner. Learned counsel for the appellant contended that the learned Judge has not considered the matter in proper perspective and without noticing the fact that the father being the natural and lawful guardian having a preferential right to the custody of the minor children, the lower Court has erred in observing that the petitioner has not taken any interest of the wards. It is further contended that the observation of the learned Judge that the petitioner has not evinced any interest is based on surmises and conjectures and in fact the evidence adduced by the petitioner Exs.A.1 to A.40 would show that he showed interest for the welfare of the children and he is not unfit to be the guardian of the children. It is further contended by the learned counsel for the petitioner that the lower court ought to have noticed that once it is not disputed that the father is not fit to be the natural guardian, it is presumed that the children's interest will be properly protected by the father and that the learned Judge by placing undue reliance on Ex.B.1, which is a declaration given by the petitioner, erroneously held that since the date of declaration the petitioner ceased to have any interest over the property of minor children. It is the case of the petitioner that the last three sentences in Ex.B.1 relating to adoption of minor girls were introduced subsequent to obtaining of his signature. On the other hand, learned counsel for the respondents supported the order under appeal. The learned counsel for the respondents contended that the trial court having noticed about the care and custody and also welfare of the children who are staying with the maternal uncle since the death of their mother, has rightly dismissed the petition. The legal controversy thus lies in a narrow compass namely whether the petitioner who is the natural father of the wards is entitled to the custody of the wards the provisions of the Act. To decide the same it is expedient to examine the relevant provisions of the Act. The relevant provision is section 17 and 19 of the Act. Section 17 provides for matters to be considered by the Court in appointing guardian and while section 19 deals with guardians not to be appointed in certain cases. " 17 (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, any existing or previous relations of the proposed guardian with the minor or his property. (3) ... Section 19 reads as follows : " Nothing in this chapter shall authorize the court to appoint or to declare a guardian of the property of a minor whose property is under the superintendence of a court of Wards or to appoint and declare a guardian of the person. (a) of a minor who is a married female and whose husband is not, in the opinion of the court, unfit to be guardian of her person, or (b) of a minor whose father is living and is not, in the opinion of the court, unfit to be guardian of the person of the minor, or (c) ..... The issue relating to this aspect was considered by the Apex Court in ROSY JACOB v. JACOB A. CHAKRAMAKKAL ( (1) 1973 SCC 840 ). The Supreme Court in this case has held that from a perusal of Section 25 of the Act, it is clear that it is attracted only if a ward leaves or is removed from the custody of a guardian of his person and the court is empowered to make an order for the return of the ward to his guardian if it is of the opinion that it will be for the welfare of the ward to return to the custody of his guardian. The Court is entrusted with a judicial discretion to order return of the ward to the custody of his guardian, if it forms an opinion that such return is for the ward's welfare. The use of the words " ward" and " guardian" leaves little doubt that it is the guardian who, having the care of the person of his ward, has been deprived of the same and is in the capacity of guardian entitled to the custody of such ward, that can seek the assistance of the Court for the return of his ward to his custody. The guardian contemplated by this section includes every kind of guardian known to law. The Supreme Court in that judgment has further held as under : " Section 25 of the Guardians and Wards Act contemplates not only actually physical custody but also constructive custody of the guardian which term includes all categories of guardians. The object and purpose of this provision being ex facie to ensure the welfare of the minor ward, which necessarily involves due protection of the right of his guardian to properly look after the ward's health, maintenance and education, this section demands reasonably liberal interpretation so a to effectuate that object. Hyper-technicalities should not be allowed to deprive the guardian, the necessary assistance from the Court in effectively discharging his duties and obligations towards his ward so as to promote the latter's welfare....... The Court's power under section 25 of the Guardians and Wards Act is to be governed primarily by the consideration of the welfare of the minors concerned. The discretion vested in the Court is, as is the case with all judicial discretions to be exercised judiciously in the background of all the relevant facts and circumstances. Each case has to be decided o its own facts and other cases can hardly serve as binding precedents, the facts of two cases in this respect being seldom- if ever identical. ...... In considering the question of the welfare of the minors due regard has of course to be paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minor's welfare. There is a presumption that a minor's parents would do their very best to promote the children's welfare and, if necessary, would not grudge any sacrifice of their own personal interest and pleasure. This presumption arises because of the natural, selfless affection normally expected from the parents for their children... Where there is no dichotomy between the fitness of the father to be entrusted with the custody of his minor children and considerations of their welfare, the father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. If the custody of the father cannot promote their welfare equally or better than the custody of the mother, then, he cannot claim indefeasible right to their custody under Section 25 merely because there is no defect in his personal character and he has attachment for his children - which every normal parent has." From the above, it is clear that the father is the guardian of the minor until he is found unfit to be the guardian of the minor. The welfare of the minor is paramount consideration while ordering their custody. In view of the section 25 of the Act, the onus is on the person who opposes the application by a guardian for the custody of a ward under this section to make out that the welfare of the wards be better served by its being kept out of the custody of its guardian and retained in the custody of the person against whom the application is made. This onus is particularly heavy when the guardian is the father of the child. Likewise, under section 19 the burden of proof to deny the natural father the custody of his child would be very heavy to establish his unfitness and the court will require very strong reasons for interference with the father's right to custody. In the facts and circumstances of the present case, it is in this background of the legal position we have to analyze the evidence adduced, both oral as well as documentary, to prove the unfitness or otherwise of the father and also see whether the welfare of the child would be better served in the hands of the father or the respondents. The petitioner was examined as P.W.1. He deposed that the minor children were with him till March 1988 and thereafter his brothers-in-law and mother-in-law took the children to their house and he used to visit the house of his brother-in-law to see the children and later they prevented him. It is stated that in the month of February or March 1988 his brothers-in-law and mother-in-law came to Bhongir to negotiate regarding custody of minor children. It is further deposed that they ( respondents ) requested them to send both the minors for some period to their house, and at that time the petitioner was under shock due to the death of his wife. On their request and after consulting elders they sent the minor girls to respondents for some period. Once in a week either petitioner or his brother used to go to the house of the respondents and bring the children. It is further deposed that subsequently, their outlook changed and started avoiding to show the girls to the petitioner. It is further stated that without consulting the petitioner the respondents admitted both the minors in Princeton Public School, Hyderabad by changing the name of the father of the minor girls. It is further deposed that on many occasions the petitioner send the elderly persons for the custody of children and that they did not care with their advise. It is further deposed by the petitioner in his examination in chief that he did not marry keeping in view the welfare of the his minor daughters and that all his family members are ready and willing to look after the welfare of his daughters. The witness deposed that last three lines in page No.2 of Ex.B.1 and three signatures appearing on Page No.1 were not present when he signed on the document. In the cross examination nothing was elicited to disprove the statements of petitioner. P.W.2 who is the younger brother of P.W.1 deposed in the same lines as that of P.W.1. P.W.3 sister-in-law of the petitioner. She deposed that theirs' is a joint family and her children and children of brothers of her husband are living together for the purpose of education at Hyderabad. P.Ws.2 and 3 have consistently denied about the adoption of the children by the maternal uncles. P.W.4, who was present in the auditor's office at the time of P.W.1 giving declaration - Ex.B.1, on perusal of the document Ex.B.1, deposed that the last three lines regarding adoption of minor were not typed in Ex.B.1 and that no such proposal for adoption of the minor girls was discussed. He deposed that in his presence R.W.1, P.W.1 signed over the document and at that time except P.W.1 no one signed as 2nd declarant. He further deposed that on that day Vidya Bhushan did not come to Auditor's office. The document was got written on the advise of Auditor keeping in view of tax problem. He also deposed about the deposit of investment of Rs.1,00,000/- in UTI in favour of each minor girl. R.W. 1- who is the maternal uncle deposed that the minor wards were brought from the house of the petitioner on 25.7.1987 and they are residing with him till now. He deposed that the minor children were admitted in the school and when they are exhibiting talent in the fields of singing and dancing the petitioner wanted custody of the wards. It is further stated that the minor children are in the custody of the maternal uncle since the death of her mother and they became closely affectionate and associate with the members of his family and for the last 11 years they are under the care and custody of the maternal uncle who took possible care to bring them up in the education. R.Ws.2 and 3 are claimed to be attestors of Ex.B.1. The learned Judge discarded the story put forth by the petitioner in view of Ex.A.24 which is an application submitted by the petitioner to Principal, Princeton Public School, L.B. Nagar, where two minor children were studying. " M. Shravani and M.Shravanthi are the twins born to me through my wife Manchala Geetha on 6.9.1986. Due to some circumstances best known to my deceased wife she committed suicide on 23.7.1987. Thereafter, as per the understanding between me and the brothers of my deceased wife my both the above said children who were minors aged about 10 months at the time of death of my wife, my brothers-in-law Terala Pradeep Kumar, Terala Vidhya Bhushan and Terala Virupaksha have requested me to take care of the said children for some time in their house. As I was also under mental distress and agony due to sudden death of my wife, I agreed for that proposal. Subsequently, I came to know that my above stated brothers-in-law joined the said two girls in your institution by changing the parents names and also surnames." The learned Judge further observing that as the presence of R.Ws.2 and 3 was not denied by the petitioner in his cross examination, there are no reasons to disbelieve the evidence of R.Ws.2 and 3, and held that Ex.B.1 declaration was signed by P.W.1 on 7.2.1988 and that contents of Ex.B.1 declaration show that P.W.1 seized to be the guardian for the property of minor children since that date. The learned Judge also observed that the children were staying with their maternal uncle since the date of death of deceased and that the evidence on record did not show that the petitioner has taken any care in bringing them up or he is in visiting terms with the respondents after the death of their mother. The Court observed that for the last 11 years the wards are under the care and custody of their maternal uncle who have taken care to bring them up in education and in extra curricular activities. It is not in dispute that Ex.B.1 is the declaration given by the petitioner. It also speaks about the investment in UTI for a sum of Rs.1,00,000/- each in favour of two minor girls. It further states that the petitioner has no claim or interest in the above said investment/money at any time, nor any of his successors in interest/legal heirs. It further states that Father, mother, brother, sister-in-law of the petitioner have gifted Rs.10,000/- each to raise the fund for investing Rs.1,00,000/- in the name of one child. Petitioner contributed Rs.1,00,000/- by selling gold, silver and other valuable articles and also her personal savings. The version of the petitioner is that last three lines, under Ex.B.1 regarding adoption of his daughters were added subsequent to signing of the document by the petitioner on Ex.B.1. The Court below observed that the question whether R.1 and R.3 adopted minor children Shravanti and Shravani is not the scope of enquiry in O.P., and the evidence adduced on either side on this respect needs no consideration for adjudication on the point involved in the petition. On perusal of the contents of Ex.B.1 the trial court held that Ex.B.1 was signed by P.W.1 on 7.2.1988 and that the contents of Ex.B.1 showed that the petitioner seized to be the guardian of the property of the minor children from that date. Curiously, R.W.1 in his examination in chief has deposed as follows: " Ex.B.1 is the document myself and my Advocate perused the document and we pointed out that aspect of giving girls in adoption was not mentioned in it as agreed by them. The petitioner took the document and written by incorporating the last 3 sentences of Ex.B.1 regarding the giving girls in adoption to us. When petitioner, myself, Ramesh ( PW 2 ), Eswar signed over Ex.B.1, R-3 also sign upon Ex.B.1. It is not correct to suggest that last 3 sentences of Ex.B.1 regarding the aspect of adoption of minors and also the word consented by is incorporated by us subsequently. The learned Judge observed that the petition is filed by the petitioner for custody of minor children and his claim is that he is the natural father of minor children and so he is entitled to their custody until he is proved to be unfit to be their guardian. However, the learned Judge without giving any finding on the aspect of whether the father is unfit to be the guardian of the minor children or not has dismissed the petition. The fact that the petitioner is natural father of the children is not disputed by the respondents at all. On a perusal of the entire material on record, there is no averment regarding unfitness of the father to be guardian and no instances are indicated by the respondents. It is only stated that since from the date of death of Geetha, the wards are staying with maternal uncle and as per Ex.B.1, the petitioner ceases to have any interest in the property of the wards in view of the adoption. The trial court disbelieved the evidence mainly relying upon Ex.B1, which itself creates a doubt in view of the insertion of the last three lines subsequently. In fact, as stated above, it was deposed by the R.W.1 in his examination in chief that subsequently the last three lines were inserted. In the earlier portion of the declaration, nowhere it is mentioned about the adoption. The petitioner consistently denied regarding the adoption.In this regard, learned counsel for the petitioner rightly contended that no endorsement was made by the petitioner on the alleged last three lines regarding adoption of the children and thus the findings of the lower Court on this aspect ex-facie suffer from perversity. In our view the findings of the court below in that regard are not correct. The another reason given by the trial court is that the evidence brought on record clearly shows that the appellant did not evince any interest in the minor children and it is only when the minor wards are showing proficiency in the dancing and singing, the petitioner came up with this application belatedly. The trial court has not recorded any specific finding about the unfitness of the natural father as required under section 19 of the Act, and in the absence of any evidence regarding the unfitness of the father, the trial court was not justified in denying the custody to the petitioner. The petitioner-natural father has invested a sum of Rs.1,00,000/- each in favour of the wards, claiming no right or interest in the said money. Added to that, there appears to be no evidence on record that the petitioner remarried again. A careful perusal of the evidence on record also does not give an impression that the interests of the minors would not be served if they are given custody to the petitioner. In the circumstances stated above, in our view, the court below erred in rejecting the petition filed by the natural father claiming custody of the children from the maternal uncle of the wards. Considering the totality of the circumstances, we hold that the petitioner is entitled to seek the custody of the minor children. For the foregoing reasons, we do not agree with the reasoning adopted by the lower Court. The impugned order is therefore set aside and the appeal is allowed. Consequently O.P. 801 of 1994 preferred by the father of the wards is allowed giving custody of the minors to the father. However, in the facts and circumstances of the case, without costs. ?1.1973 SCC 840.  (Comment on this)
6:28p	Manchala Rushikesh v. Terala Pradeep Kumar and others [2001] INHCAP 80 (6 April 2001) http://www.worldlii.org/in/cases/INHCAP/2001/80.html Manchala Rushikesh v. Terala Pradeep Kumar and others [2001] INHCAP 80 (6 April 2001) THE HON'BLE SRI JUSTICE B. SUBHASHAN REDDY THE HON'BLE SRI JUSTICE GHULAM MOHAMMED CMA No. 1548 of 1998 06-04-2001 Manchala Rushikesh Terala Pradeep Kumar and others HELD: From a perusal of Section 25 of the Act, it is clear that it is attracted only if a ward leaves or is removed from the custody of a guardian....The guardian contemplated by this section includes every kind of guardian known to law.... From the above, it is clear that the father is the guardian of the minor until he is found unfit to be the guardian of the minor. The welfare of the minor is paramount consideration while ordering their custody. In view of the section 25 of the Act, the onus is on the person who opposes the application by a guardian for the custody of a ward under this section to make out that the welfare of the wards be better served by its being kept out of the custody of its guardian and retained in the custody of the person against whom the application is made. This onus is particularly heavy when the guardian is the father of the child. Likewise, under section 19 the burden of proof to deny the natural father the custody of his child would be very heavy to establish his unfitness and the court will require very strong reasons for interference with the father's right to custody. Counsel for the Petitioners : M/s. C. Poornaiah & Co. Counsel for respondents : Mr.Vijay Kumar Heroor. :Order: Judgment: (Per GHULAM MOHAMMED, J ) The unsuccessful petitioner-appellant preferred this appeal against the order dated 22.4.1998 in O.P.No.801 of 1994 on the file of the Principal District Judge, Ranga Reddy. The above O.P.No.801 of 1994 was preferred by the appellant-natural father of the wards, under section 25 of the Guardian and Wards Act, ( for short "the Act" ), for custody of minor children by name Shravani and Shravanti. For the purpose of convenience, the parties are addressed as petitioner and respondents as per their array in O.P.No.801 of 1994. The petitioner married the deceased on 12.9.1983 as per the Hindu rites and customs at Kanchibhavan, Ramkote, Hyderabad. Smt. Geetha joined the petitioner for marital life at petitioner's house. Smt. Geetha gave birth to twins namely Shravani and Shravanthi on 6.9.1986 at Swapna Nursing Home, Hyderabad. The cradle ceremony of the twins was performed at her mother's house and subsequently Smt. Geetha came to the petitioner's house. It is stated that petitioner's family is a joint family headed by their father Manchala Shankaraiah who, however, died on 23.5.1991. Smt. Geetha lived with the petitioner happily till 23.7.1987. On 21.7.1987 Smt. Geetha and the petitioner visited the house of the respondents for attending annual ceremony of father of Smt. Geetha and they returned to Bhongir. It is further stated that on 23.7.1987 on the midnight Smt. Geetha committed suicide. It is stated that a partnership business in the name of Shi Radhakrishna Tiles factory consisting of the brother of the petitioner, her sister's husband, namely Uppalanchi Muralidhar Rao and V. Lingam ran into losses and came to be closed. Smt. Geetha demanded her sister's husband Muralidhar Rao and her sister to settle the affairs of the said factory for which they did not respond and her brothers and mother did not extent the support of her demand. Having disgusted with the attitude of the respondents she committed suicide. It is further stated that the minor children were ten months old as on the date of the death of Smt. Geetha. On the morning of 24.7.1987 all the respondents came to Bhongir and without proper enquiries with the petitioner and other members of his family, the 1st respondent lodged a complaint in Bhongir Police Station. The Police registered a case against the petitioner and other members of his family under section 304-B IPC. After competition of the investigation the police filed a final report stating that it is a mistake of fact. The respondents have taken the children to their house at Hyderabad and brought them back to Bhongir on the next day and they requested the petitioner to show extra care on the children. The children were with them for six months and an amount of Rs.1,00,000/- each in the name of the children was deposited by the petitioner in UTI Children Growth Fund. Having noticed this deposit, the respondents approached the petitioner and requested him to send the children to their house for some time on the ground that the petitioner did not recover from mental shock due to sudden demise of his wife. They promised the petitioner to send the children once or twice in a week to be with him for a day or two. The petitioner reluctantly conceded to the request of the respondents. The respondents have kept up their promise for one year and later changed their mind and did not permit the petitioner to visit their house to see the children. The petitioner demanded the respondents to send back his children. But the respondents postponed the matter on one pretext or the other and got them admitted in Princeton Public School, Hyderabad. The petitioner used to visit the school to see the children but the respondents did not even like his visits and informed the school authorities not to permit the petitioner to see the children. Thus, it is stated that the respondents have kept the children away from the petitioner in a planned manner. It is further stated by the petitioner that during his visits to school he came to know that the respondents 1 and 3 admitted the children by changing their surnames and styling the children as their own daughters. When the petitioner tried to take copies of the school records such as admission register, the respondent filed a petition on 10.4.1993 with false allegations that the petitioner is trying to harass them and that he committed murder of their sister. The petitioner got issued a legal notice on 17.6.1993 to the respondents directing them to send back the Wards to him, for which the respondent got issued a reply denying the right of the petitioner for custody of the children. Hence, the present O.P. was filed by the natural father of the Wards for return of the custody of the wards from the respondents. The respondents filed a counter opposing the application of the petitioner. It is pertinent to note that the respondents have not disputed that the petitioner is natural father of the minor children. It is stated that the wards were resided at Bhongir with the petitioner till 24.7.1987 on which day their mother was killed by the petitioner and members of his family. The children were aged about 10 months as on the date of death of their mother and they never stayed at Bhongir after 24.7.1987. The contention of the petitioner that Smt. Geetha lived happily with the petitioner till the mid-night of 23.07.1987 is utterly false. The petitioner and the member of his family harassed Geetha for more dowry and subjected her to un-toleratable mental agony and cruelty. On 21-7-1987, when the deceased Geetha visited Saroornagar, Hyderabad for attending funeral ceremony of her father Ramnath Guptha, the deceased disclosed her mother about the cruel attitude and treatment of the petitioner and members of his family. It is further stated that in order to escape from the clutches of law, the petitioner started pasteurizing the brutal murder of Geetha as suicide and that the respondent No.1 has filed a complaint with S.H.O. Bhongir Police Station who registered the case in Crime No.88 of 1987 under section 304B IPC against the petitioner and members of his family. It is the case of the respondents that the police did not conduct any further investigation and did not record statements of any witnesses, and since there was no progress in the case, the respondent no.1 filed a petition before the police Bhongir and also in the Court of Judicial First Class Magistrate, Bhongir for necessary action and that application was rejected. Since the date of death of Geetha the minor children have been staying under custody of respondent No.1 and they were neither sent by the respondents on any occasion nor taken to Bhongir by the petitioner. It is stated in the counter that the petitioner and his family members decided to get rid of burden of the children and them gave minor children to the respondent 1 and 3 in adoption for which the respondents have agreed by receiving the wards in the presence of well wishers and the petitioner also gave a written declaration Ex.B.1 dated 2.2.1988 ratifying the earlier adoption. It is further stated that the respondents have sent elaborate reply to the petitioner's notice stating that the petitioner has no right to demand the custody of the children. The petitioner having not taken any steps at any point of time is claiming custody of the wards with a view to swallow the money invested in the welfare of the children and he has no locus standi to claim the same. On the above pleadings, the parties have adduced the evidence. On behalf of the petitioner P.Ws.1 to 4 were examined and Exs.A.1 to A.40 were marked. P.W.1 is the petitioner-natural father of the wards, P.W.2 is the younger brother of P.W.1, P.W.3 is sister-in-law of P.W.1 and P.W.4 is friend of P.W.1 who deposed that no proposal for adoption of minor girls was discussed and dispute the last three sentences regarding adoption of minors in Ex.B.1. The respondents examined RWs.1 to 3 and marked Exs.B.1 to B.68. R.W.1 who is maternal uncle, R.W.2 friend of R.W.1 who is also attestor of Ex.B.1, and R.W.3 friend of R.W.1 and also attestor of Ex.B.1, and marked Exs.B.1 to B.68. On the above pleadings, the trial Court framed an issue as under: " The point for consideration is : Whether the petitioner is entitled to custody of minor children Shravani and Shravanthi ? " The lower Court on consideration of the evidence, declined to grant custody of the wards to the petitioner. Hence, the present appeal by the petitioner. Learned counsel for the appellant contended that the learned Judge has not considered the matter in proper perspective and without noticing the fact that the father being the natural and lawful guardian having a preferential right to the custody of the minor children, the lower Court has erred in observing that the petitioner has not taken any interest of the wards. It is further contended that the observation of the learned Judge that the petitioner has not evinced any interest is based on surmises and conjectures and in fact the evidence adduced by the petitioner Exs.A.1 to A.40 would show that he showed interest for the welfare of the children and he is not unfit to be the guardian of the children. It is further contended by the learned counsel for the petitioner that the lower court ought to have noticed that once it is not disputed that the father is not fit to be the natural guardian, it is presumed that the children's interest will be properly protected by the father and that the learned Judge by placing undue reliance on Ex.B.1, which is a declaration given by the petitioner, erroneously held that since the date of declaration the petitioner ceased to have any interest over the property of minor children. It is the case of the petitioner that the last three sentences in Ex.B.1 relating to adoption of minor girls were introduced subsequent to obtaining of his signature. On the other hand, learned counsel for the respondents supported the order under appeal. The learned counsel for the respondents contended that the trial court having noticed about the care and custody and also welfare of the children who are staying with the maternal uncle since the death of their mother, has rightly dismissed the petition. The legal controversy thus lies in a narrow compass namely whether the petitioner who is the natural father of the wards is entitled to the custody of the wards the provisions of the Act. To decide the same it is expedient to examine the relevant provisions of the Act. The relevant provision is section 17 and 19 of the Act. Section 17 provides for matters to be considered by the Court in appointing guardian and while section 19 deals with guardians not to be appointed in certain cases. " 17 (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, any existing or previous relations of the proposed guardian with the minor or his property. (3) ... Section 19 reads as follows : " Nothing in this chapter shall authorize the court to appoint or to declare a guardian of the property of a minor whose property is under the superintendence of a court of Wards or to appoint and declare a guardian of the person. (a) of a minor who is a married female and whose husband is not, in the opinion of the court, unfit to be guardian of her person, or (b) of a minor whose father is living and is not, in the opinion of the court, unfit to be guardian of the person of the minor, or (c) ..... The issue relating to this aspect was considered by the Apex Court in ROSY JACOB v. JACOB A. CHAKRAMAKKAL ( (1) 1973 SCC 840 ). The Supreme Court in this case has held that from a perusal of Section 25 of the Act, it is clear that it is attracted only if a ward leaves or is removed from the custody of a guardian of his person and the court is empowered to make an order for the return of the ward to his guardian if it is of the opinion that it will be for the welfare of the ward to return to the custody of his guardian. The Court is entrusted with a judicial discretion to order return of the ward to the custody of his guardian, if it forms an opinion that such return is for the ward's welfare. The use of the words " ward" and " guardian" leaves little doubt that it is the guardian who, having the care of the person of his ward, has been deprived of the same and is in the capacity of guardian entitled to the custody of such ward, that can seek the assistance of the Court for the return of his ward to his custody. The guardian contemplated by this section includes every kind of guardian known to law. The Supreme Court in that judgment has further held as under : " Section 25 of the Guardians and Wards Act contemplates not only actually physical custody but also constructive custody of the guardian which term includes all categories of guardians. The object and purpose of this provision being ex facie to ensure the welfare of the minor ward, which necessarily involves due protection of the right of his guardian to properly look after the ward's health, maintenance and education, this section demands reasonably liberal interpretation so a to effectuate that object. Hyper-technicalities should not be allowed to deprive the guardian, the necessary assistance from the Court in effectively discharging his duties and obligations towards his ward so as to promote the latter's welfare....... The Court's power under section 25 of the Guardians and Wards Act is to be governed primarily by the consideration of the welfare of the minors concerned. The discretion vested in the Court is, as is the case with all judicial discretions to be exercised judiciously in the background of all the relevant facts and circumstances. Each case has to be decided o its own facts and other cases can hardly serve as binding precedents, the facts of two cases in this respect being seldom- if ever identical. ...... In considering the question of the welfare of the minors due regard has of course to be paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minor's welfare. There is a presumption that a minor's parents would do their very best to promote the children's welfare and, if necessary, would not grudge any sacrifice of their own personal interest and pleasure. This presumption arises because of the natural, selfless affection normally expected from the parents for their children... Where there is no dichotomy between the fitness of the father to be entrusted with the custody of his minor children and considerations of their welfare, the father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. If the custody of the father cannot promote their welfare equally or better than the custody of the mother, then, he cannot claim indefeasible right to their custody under Section 25 merely because there is no defect in his personal character and he has attachment for his children - which every normal parent has." From the above, it is clear that the father is the guardian of the minor until he is found unfit to be the guardian of the minor. The welfare of the minor is paramount consideration while ordering their custody. In view of the section 25 of the Act, the onus is on the person who opposes the application by a guardian for the custody of a ward under this section to make out that the welfare of the wards be better served by its being kept out of the custody of its guardian and retained in the custody of the person against whom the application is made. This onus is particularly heavy when the guardian is the father of the child. Likewise, under section 19 the burden of proof to deny the natural father the custody of his child would be very heavy to establish his unfitness and the court will require very strong reasons for interference with the father's right to custody. In the facts and circumstances of the present case, it is in this background of the legal position we have to analyze the evidence adduced, both oral as well as documentary, to prove the unfitness or otherwise of the father and also see whether the welfare of the child would be better served in the hands of the father or the respondents. The petitioner was examined as P.W.1. He deposed that the minor children were with him till March 1988 and thereafter his brothers-in-law and mother-in-law took the children to their house and he used to visit the house of his brother-in-law to see the children and later they prevented him. It is stated that in the month of February or March 1988 his brothers-in-law and mother-in-law came to Bhongir to negotiate regarding custody of minor children. It is further deposed that they ( respondents ) requested them to send both the minors for some period to their house, and at that time the petitioner was under shock due to the death of his wife. On their request and after consulting elders they sent the minor girls to respondents for some period. Once in a week either petitioner or his brother used to go to the house of the respondents and bring the children. It is further deposed that subsequently, their outlook changed and started avoiding to show the girls to the petitioner. It is further stated that without consulting the petitioner the respondents admitted both the minors in Princeton Public School, Hyderabad by changing the name of the father of the minor girls. It is further deposed that on many occasions the petitioner send the elderly persons for the custody of children and that they did not care with their advise. It is further deposed by the petitioner in his examination in chief that he did not marry keeping in view the welfare of the his minor daughters and that all his family members are ready and willing to look after the welfare of his daughters. The witness deposed that last three lines in page No.2 of Ex.B.1 and three signatures appearing on Page No.1 were not present when he signed on the document. In the cross examination nothing was elicited to disprove the statements of petitioner. P.W.2 who is the younger brother of P.W.1 deposed in the same lines as that of P.W.1. P.W.3 sister-in-law of the petitioner. She deposed that theirs' is a joint family and her children and children of brothers of her husband are living together for the purpose of education at Hyderabad. P.Ws.2 and 3 have consistently denied about the adoption of the children by the maternal uncles. P.W.4, who was present in the auditor's office at the time of P.W.1 giving declaration - Ex.B.1, on perusal of the document Ex.B.1, deposed that the last three lines regarding adoption of minor were not typed in Ex.B.1 and that no such proposal for adoption of the minor girls was discussed. He deposed that in his presence R.W.1, P.W.1 signed over the document and at that time except P.W.1 no one signed as 2nd declarant. He further deposed that on that day Vidya Bhushan did not come to Auditor's office. The document was got written on the advise of Auditor keeping in view of tax problem. He also deposed about the deposit of investment of Rs.1,00,000/- in UTI in favour of each minor girl. R.W. 1- who is the maternal uncle deposed that the minor wards were brought from the house of the petitioner on 25.7.1987 and they are residing with him till now. He deposed that the minor children were admitted in the school and when they are exhibiting talent in the fields of singing and dancing the petitioner wanted custody of the wards. It is further stated that the minor children are in the custody of the maternal uncle since the death of her mother and they became closely affectionate and associate with the members of his family and for the last 11 years they are under the care and custody of the maternal uncle who took possible care to bring them up in the education. R.Ws.2 and 3 are claimed to be attestors of Ex.B.1. The learned Judge discarded the story put forth by the petitioner in view of Ex.A.24 which is an application submitted by the petitioner to Principal, Princeton Public School, L.B. Nagar, where two minor children were studying. " M. Shravani and M.Shravanthi are the twins born to me through my wife Manchala Geetha on 6.9.1986. Due to some circumstances best known to my deceased wife she committed suicide on 23.7.1987. Thereafter, as per the understanding between me and the brothers of my deceased wife my both the above said children who were minors aged about 10 months at the time of death of my wife, my brothers-in-law Terala Pradeep Kumar, Terala Vidhya Bhushan and Terala Virupaksha have requested me to take care of the said children for some time in their house. As I was also under mental distress and agony due to sudden death of my wife, I agreed for that proposal. Subsequently, I came to know that my above stated brothers-in-law joined the said two girls in your institution by changing the parents names and also surnames." The learned Judge further observing that as the presence of R.Ws.2 and 3 was not denied by the petitioner in his cross examination, there are no reasons to disbelieve the evidence of R.Ws.2 and 3, and held that Ex.B.1 declaration was signed by P.W.1 on 7.2.1988 and that contents of Ex.B.1 declaration show that P.W.1 seized to be the guardian for the property of minor children since that date. The learned Judge also observed that the children were staying with their maternal uncle since the date of death of deceased and that the evidence on record did not show that the petitioner has taken any care in bringing them up or he is in visiting terms with the respondents after the death of their mother. The Court observed that for the last 11 years the wards are under the care and custody of their maternal uncle who have taken care to bring them up in education and in extra curricular activities. It is not in dispute that Ex.B.1 is the declaration given by the petitioner. It also speaks about the investment in UTI for a sum of Rs.1,00,000/- each in favour of two minor girls. It further states that the petitioner has no claim or interest in the above said investment/money at any time, nor any of his successors in interest/legal heirs. It further states that Father, mother, brother, sister-in-law of the petitioner have gifted Rs.10,000/- each to raise the fund for investing Rs.1,00,000/- in the name of one child. Petitioner contributed Rs.1,00,000/- by selling gold, silver and other valuable articles and also her personal savings. The version of the petitioner is that last three lines, under Ex.B.1 regarding adoption of his daughters were added subsequent to signing of the document by the petitioner on Ex.B.1. The Court below observed that the question whether R.1 and R.3 adopted minor children Shravanti and Shravani is not the scope of enquiry in O.P., and the evidence adduced on either side on this respect needs no consideration for adjudication on the point involved in the petition. On perusal of the contents of Ex.B.1 the trial court held that Ex.B.1 was signed by P.W.1 on 7.2.1988 and that the contents of Ex.B.1 showed that the petitioner seized to be the guardian of the property of the minor children from that date. Curiously, R.W.1 in his examination in chief has deposed as follows: " Ex.B.1 is the document myself and my Advocate perused the document and we pointed out that aspect of giving girls in adoption was not mentioned in it as agreed by them. The petitioner took the document and written by incorporating the last 3 sentences of Ex.B.1 regarding the giving girls in adoption to us. When petitioner, myself, Ramesh ( PW 2 ), Eswar signed over Ex.B.1, R-3 also sign upon Ex.B.1. It is not correct to suggest that last 3 sentences of Ex.B.1 regarding the aspect of adoption of minors and also the word consented by is incorporated by us subsequently. The learned Judge observed that the petition is filed by the petitioner for custody of minor children and his claim is that he is the natural father of minor children and so he is entitled to their custody until he is proved to be unfit to be their guardian. However, the learned Judge without giving any finding on the aspect of whether the father is unfit to be the guardian of the minor children or not has dismissed the petition. The fact that the petitioner is natural father of the children is not disputed by the respondents at all. On a perusal of the entire material on record, there is no averment regarding unfitness of the father to be guardian and no instances are indicated by the respondents. It is only stated that since from the date of death of Geetha, the wards are staying with maternal uncle and as per Ex.B.1, the petitioner ceases to have any interest in the property of the wards in view of the adoption. The trial court disbelieved the evidence mainly relying upon Ex.B1, which itself creates a doubt in view of the insertion of the last three lines subsequently. In fact, as stated above, it was deposed by the R.W.1 in his examination in chief that subsequently the last three lines were inserted. In the earlier portion of the declaration, nowhere it is mentioned about the adoption. The petitioner consistently denied regarding the adoption.In this regard, learned counsel for the petitioner rightly contended that no endorsement was made by the petitioner on the alleged last three lines regarding adoption of the children and thus the findings of the lower Court on this aspect ex-facie suffer from perversity. In our view the findings of the court below in that regard are not correct. The another reason given by the trial court is that the evidence brought on record clearly shows that the appellant did not evince any interest in the minor children and it is only when the minor wards are showing proficiency in the dancing and singing, the petitioner came up with this application belatedly. The trial court has not recorded any specific finding about the unfitness of the natural father as required under section 19 of the Act, and in the absence of any evidence regarding the unfitness of the father, the trial court was not justified in denying the custody to the petitioner. The petitioner-natural father has invested a sum of Rs.1,00,000/- each in favour of the wards, claiming no right or interest in the said money. Added to that, there appears to be no evidence on record that the petitioner remarried again. A careful perusal of the evidence on record also does not give an impression that the interests of the minors would not be served if they are given custody to the petitioner. In the circumstances stated above, in our view, the court below erred in rejecting the petition filed by the natural father claiming custody of the children from the maternal uncle of the wards. Considering the totality of the circumstances, we hold that the petitioner is entitled to seek the custody of the minor children. For the foregoing reasons, we do not agree with the reasoning adopted by the lower Court. The impugned order is therefore set aside and the appeal is allowed. Consequently O.P. 801 of 1994 preferred by the father of the wards is allowed giving custody of the minors to the father. However, in the facts and circumstances of the case, without costs. ?1.1973 SCC 840.  (6 Comments | Comment on this)

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