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Child Interview and Opinion need not be final in custody cases PDF Print E-mail
(0 Votes)
Written by Indiankanoon   
Equivalent citations: AIR 2007 Kant 130, ILR 2008 KAR 650, 2007 (5) KarLJ 381
Author: H N Das
Bench: H N Das

ORDER

H.N. Nagamohan Das, J.

1. In this writ petition the petitioner has prayed for a writ in the nature of certiorari to quash the order dated 1-1-2005 in G & WC No. 61/2004 passed by the 6th Additional City Civil Judge, Bangalore City, allowing I.A. No. 1 filed under Order 39 Rules 1 and 2 CPC, I.A. No. 2 filed under Order 40 Rule 1 CPC, partly allowing I.A. No. 6 filed under Section 12 of the Guardians and Wards Act, disposing I.A. No. 5 filed under Section 12 of the Guardinas and Wards Act and rejecting I.A. No.3 filed under Section 12 of the Guardians and Wards Act.

2. One Sri L. Chandrashekar and Smt. Premakumari are husband and wife. They had two minor children by name, A.C. Muktesh and A.C. Nayan. In a road accident, on 19-7-2004, Sri L. Chandrashekar and Smt. Premakumari died leaving behind their estate and their two minor children. Petitioner who is the maternal grandfather of minor children filed a petition under Section 7 of the Guardians and Wards Act ('the Act' for short) in G & WC No. 61/2004 to appoint him as the guardian of the minor children and the properties. The second respondent who is the brother of the deceased Sri L. Chandrashekar filed G & WC No. 60/ 2004 to appoint him as the guardian of the minor children and the properties. The trial Court by a common order appointed the second respondent as the guardian of the minor children and as the receiver of the properties subject to certain conditions. Hence, this writ petition.

3. Heard arguments on both the sides and perused the entire writ papers.

4. The unfortunate two minor children have lost their father and mother in a motor accident on 19-7-2004. On one side the petitioner who is maternal grandfather is claiming the custody of minor children and to appoint him as guardian of the children and the properties. On the other hand, the second respondent who is paternal uncle i.e. brother of deceased Sri L. Chandrashekar is claiming to appoint him as guardian of minor children and their properties. The custody of the minor children cannot be decided on the legal right of the parties. The custody of the minor children is to be decided on the basis of who would best serve the interest of minor children. The paramount consideration is the interest and welfare of the minor children. The Act does not define the word 'welfare of the minor'. This word 'welfare of the minor' has a very wide connotation; besides it has several facets including financial, educational, physical, moral and religious. It is not possible to catalogue exhaustively the factors which contribute to the welfare of the minor. It depends upon the facts and circumstances of each case. In the matter of appointment of guardian, the Court is charged with a responsibility to appoint the most suitable person amongst the rival claimants for guardianship. The appointment of a guardian of a minor cannot be settled by an agreement between the contesting parties for guardianship. The Court has to consider the welfare of minors on evidence before it and not to pass judgment in terms of a compromise.

5. Section 17(3) of the Act specifies that if the minor is old enough to form an intelligent preference, the Court may consider the preference. It is implied that Section 17(3) of the Act empowers the Court to interview the child to find out the intention of minor. While ascertaining the wishes of the minor the Court shall take into consideration the age of minor and the custody of minor at the time of interview and immediately prior to it. Even then the wishes of the minor shall not control the discretion of the Court. The wishes of the minor shall not be the sole factor to be taken into account in adjudging proper custody of minor. There is a greater responsibility on the Court to assess the entire facts and circumstances of the case, in appropriate cases, can even disregard the wishes and preference expressed by the minors, especially when Court is of the impression that the minors have not given answer on the question of their wish voluntarily, but under influence and tutoring.

6. Keeping these principles in view it is necessary to examine the fact situation in the case on hand. The trial Court passed the impugned order appointing the second respondent as the guardian of minor children only on the basis of wishes and preference of minors. This reasoning of the trial Court is contrary to the material on record. The trial Court interviewed minors to gather their wish and preference and as on that date the minors were aged about 7 1/2 and 5 years. At this tender age the minors, are not capable of forming an intelligent preference. The two minor children are not capable of taking a rational decision as to who should be their guardian and under whose custody they have to grow and under whose care their welfare is protected. Further the minor children were under the custody of second respondent after the demise of their parents. In the interview conducted by the trial Court the minor child A.C. Nayan stated that the second respondent told him that the petitioner is a bad person and therefore he does not want to go with the petitioner. In the following Kannada words the trial Court recorded the statement of minor A.C. Nayan:

(Vernacular matter omitted.)

Another minor child A.C. Mukatesh stated that he wanted to become a doctor and that he would like to reside in the home built by his father soon after attaining the majority. Then he will take the assistance and help from the petitioner, but not now. Under the circumstances the wishes and preference of minor children are not voluntary, but the same are influenced and tutored by the second respondent. Therefore the reasoning of the trial Court that the minor children do not want to go with the petitioner is contrary to the material on record and as such the impugned order is liable to be quashed.

7. There is a great responsibility on the Court to appoint the most suitable person amongst the rival claimants for guardianship. Petitioner is a retired Head Master. The petitioner and his wife are in a better position to spend and dedicate more time and attention to look after the minor children. There is no allegation against the petitioner and his wife to act as guardian of minor children. As grand parents the petitioner and his wife are having love and affection towards minor children. On the other hand the second respondent is working as Professor in the Department of Sericulture, Bangalore University and his wife is working as Principal in Pre-University College, Peenya, Bangalore city. The second respondent and his wife are full time employed academicians and as such they find little time or no time to spend and take care of minor children. Therefore the petitioner is more suitable person than the second respondent to be appointed as guardian of minor children.

8. Several scientific studies reveal that the mental faculties of a child will develop and grow speedily/rapidly in the age between 6 and

12. Therefore in the interest and welfare of minor children it is necessary to provide and create a good and affectionate environment to build up the child's good career. The material on record establishes that the second respondent and his wife have little time or no time to spare for the development of minor children. The statement made by the minor children during the course of their interview before the trial Court establishes the fact that they are not voluntary but the same are influenced and tutored by the second respondent. This attitude on the part of second respondent is not in the best interest of minors. Poisoning the mind of minor child against their grand father is not a good environment for a good career of minor child. Further serious allegations are made against second respondent touching his honesty and morality. Therefore, the petitioner is the more suitable person than the second respondent to be appointed as guardian of minor children.

9. The deceased Sri L. Chandrashekar and his wife Smt. A.C. Premakumari left behind valuable immovable and movable properties. After the demise of Sri. L. Chandrashekar and his wife Smt. A.C. Premakumari on 19-7-2004, the second respondent took custody of minor children and also the properties. The material on record discloses that the deceased Sri. L. Chandrashekar was a partner in a partnership firm M/s. Mathrushri and another partnership firm M/s. CRNK Polyprints. After the demise of Sri. L. Chandrashekar, the second respondent claiming to be the guardian of the minor children withdrew certain money from the two partnership firms referred to above in full and final settlement of deceased Sri L. Chandrashekar's share. But, at the time of filing the petition in G & WC 60/2004, the second respondent has not disclosed the same in the petition schedule properties. When the petitioner brought to the notice of the trial Court this lapse on the part of second respondent, he included the same by way of amendment. Again the second respondent while filing the petition before the trial Court in G & WC 60/2004 failed to disclose the details of gold ornaments of late Sri. L. Chandrashekar and his wife Smt. A.C. Premakumari. So also the second respondent received cheque for a sum of Rs. 1.72 lakhs from one Sri K.R. Vishwanath payable to the deceased Sri. L. Chandrashekar and the same was not remitted to the account of minors. This attitude of the second respondent in not disclosing this material information before the trial Court reflects his conduct. Though the second respondent contends that the non disclosure of this material information is not intentional, the same is serious lapse on his part.

10. At the time of death of Sri. L. Chandrashekar he was running a factory in a portion of house property in which he was residing. In this factory plastic bags were manufactured. Proper accounts are not produced before the trial Court with regard to the income from this factory. Before this Court the second respondent produced statement of accounts for the period from 19-7-2004 to 31-12-2006. A comparison of this statement of accounts with the schedule furnished in G & WC No. 60/2004 makes it clear that the second respondent has not disclosed the details of assets and liabilities of deceased Sri. L. Chandrashekar and his wife Smt. A.C. Prema Kumari at the first instance before the trial Court. At this stage without expressing any opinion on the merits of the case it is sufficient to hold that the second respondent is not a proper person to be appointed as guardian of the properties of the minors.

11. For the reasons stated above, the following:

ORDER

I. Writ petition is partly allowed.

II. The impugned order passed by the trial Court in G & WC Nos. 60/2004 and 61/2004 dated 1-1-2005 is hereby quashed.

III. Petitioner is appointed as guardian of the minor children Master A.C. Muktesh and Master A.C. Nayan.

IV. The second respondent is directed to hand over the custody of the minor children to the petitioner.

V. The second respondent and his wife are permitted to take custody of the minor children once in a week on a weekly holiday, that is, preferably on every Sunday from morning to evening and send them back to the house of petitioner on the same day.

VI. Petitioner is appointed as the receiver to manage the schedule properties and other properties belonging to and left behind by late Sri. L. Chandrashekar and his wife, Smt. A.C. Prema Kumari till the disposal of the main petition before the trial Court.

VII. Petitioner to submit accounts every month to the trial Court.

VIII. Both the parties are restrained from alienating the schedule properties. The petitioner is entitled to seek necessary permission from the trial Court to deal with the schedule properties and other properties belonging to the minors as and when required.

IX. The second respondent is directed to furnish the accounts before the trial Court for the period from 20-7-2004, the date on which he took custody of the properties till the date of handing over the same to the petitioner.

X. This arrangement is only till the end of proceedings before the trial Court on merits. The trial Court is directed to expedite the matter and to dispose the main petition in accordance with law.

 



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