Appellant is grandfather of the child who is appealing in supreme court against the order of Bombay high court whereby the High Court reversed the judgment and order passed by the District Judge, Yavatmal, Maharashtra.
Marriage of the respondent (father of the child) was solemnized with the daughter of the appellant (grandfather of the child). Out of the said wedlock, a son was born on 23.03.2003. After giving birth to son, on the same day, the respondent's wife died. Son of the respondent is residing with the appellant-maternal grandfather and his family since his birth. After the death of his wife, the respondent contracted second marriage and also has a son from the second marriage.
On 07.08.2003, the appellant-maternal grandfather of the minor filed an application in the Court of District Judge II, Yavatmal, Maharashtra under Section 7 of the Guardians and Wards Act, appointing him as guardian of the minor grandson. The said application was opposed by the respondent (father) and, on 15.10.2003, he also filed an application under Section 25 of the GWA for the custody of his son. The District Judge by a common judgment dated 16.04.2007 in both the proceedings, allowed the application filed by the appellant (grandfather) herein and appointed him as a Guardian of grandson Vishwajeet till he attains the age of 12 years. The District Judge further directed the newly appointed guardian to allow the respondent-father to meet the minor once in a month.
Aggrieved by the said order, the respondent (father) appealed in the High Court of Bombay. On 17.10.2007 Judge of the High Court allowed the appeal filed by the respondent (father) and directed the appellant (grandfather) to hand over the custody of the child to the respondent (father). Challenging the said order, the appellant (grandfather) has preferred this appeal in Supreme court.
In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor."
One thing is clear that in a matter of custody of a minor child, the paramount consideration is the "welfare of the minor" and not rights of the parents or relatives under a statute which are in force. The word "welfare" used in Section 13 of the Act 1956 has to be construed literally and must be taken in its widest sense.
The moral and ethical welfare of the child must also weigh with the court as well as its physical well-being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases.
Though father is the natural guardian in respect of a minor child, taking note of the fact that welfare of the minor to be of paramount consideration.
child was all along living with the maternal grand-father and his family since birth, residing in a Taluka Centre where the child is getting good education.
At any point of time the respondent-father did not attempted to meet the child when he was in the custody of maternal grandfather.
Permitted the appellant grandfather to have the custody of the child till the age of 12 years as ordered by the District Judge. The above conclusion is based on welfare of the minor as provided in Section 13 of the Act 1956 and visitation rights given to the father:
Though probably not the most important part of judgment but an opinion is expressed by judges:
"Within a period of one year after the death of Kaveri, daughter of the appellant herein, the respondent- husband married another woman."
"There is no material to show that at any point of time the respondent-father had attempted to meet the child when he was in the custody of maternal grandfather"
This tends to suggest that past actions of the parents in a child custody case can be considered important for any future amendments / appeals to the orders.