“The Welfare of the Minor Does Not Require Change of Custody”: Patna High Court Uphold Grandparents’ Guardianship, Denies Custody to Natural Father
Safiya Malik
The Division Bench of the Patna High Court comprising Justice P. B. Bajanthri and Justice Sunil Dutta Mishra dismissed an appeal challenging a Family Court judgement that granted continued custody of a minor girl to her maternal grandparents. The Court concluded that "the present circumstances necessitate that the minor girl remains in the custody of her maternal grandparents until she attains majority or opts to live with her father thereafter," prioritizing the welfare of the child over the statutory right of the natural guardian.
The appeal was filed under Section 19(1) of the Family Court Act, 1984 against the judgment dated 27.02.2020 passed by the Principal Judge, Family Court, Sitamarhi, in Guardianship Case No. 02 of 2018. The appellant, father of the minor girl, had sought custody under Section 25 of the Guardians and Wards Act, 1890.
The appellant, a Bank Manager employed with the State Bank of India, was initially posted in Delhi at the time of the events giving rise to the case. He married the deceased mother of the minor child on 17.01.2013. Their daughter was born on 17.02.2015. In January 2016, the deceased became pregnant again and moved to her parental home in Muzaffarpur in July 2016 for care during her pregnancy. Tragically, she died on 08.08.2016 after an accident in the bathroom.
Following the death of the child’s mother, the minor girl remained in the custody of her maternal grandparents (the respondents). The appellant subsequently sought a transfer to Patna in September 2016 and remarried on 18.04.2017. He now has a son from his second marriage.
The appellant alleged that the respondents were old and incapable of providing proper care, claiming that they were financially and physically dependent on others. He argued that, as the natural guardian under Section 4(c) of the Hindu Minority and Guardianship Act, 1956, he had a legal right to custody of the child.
Conversely, the respondents contended that their deceased daughter did not live a happy life with the appellant and that he had shown negligence during her pregnancy. They stated that the child was born in their presence and had since remained with them. Respondent No. 1, a retired engineer with a stable pension and family support, asserted their ability to raise the child well.
The Family Court framed five issues on 21.11.2019, including the maintainability of the application, the right of the appellant to custody, and the welfare of the minor.
Evidence was recorded from both sides, including the appellant, his second wife, and his brother on one side, and the respondents along with the minor child on the other.
The trial court, considering the evidence, held that although the appellant was the natural guardian, the welfare of the child required continued custody with the respondents. The child was reported to be doing well, both academically and emotionally, in the care of her grandparents and expressed unwillingness to live with her father and step-family.
The High Court recorded that "the only question which this Court has to decide is whether the Judgment/order dated 27.02.2020 passed by the learned Family Court requires any interference by this Court in this appeal having regard to overall welfare and best interests of the minor child."
The Court noted that the child had been with the respondents since before her mother's death and was about ten years old at the time of judgment. "The minor child expressed unwillingness to reside with her father-appellant and she is comfortable with respondents where she excelled in her studies and progressed well," the Court stated.
In its detailed observations, the Court relied on established precedent, including Nil Ratan Kundu v. Abhijit Kundu (2008) 9 SCC 413, where the Supreme Court had stated: "In selecting a proper guardian of a minor, the paramount consideration should be the welfare and wellbeing of the child... Over and above physical comforts, moral and ethical values cannot be ignored."
It further referred to Mausami Moitra Ganguli v. Jayant Ganguli (2008) 7 SCC 673, stating that financial strength or statutory guardianship alone could not dictate custody decisions.
The Court also acknowledged that remarriage of the appellant was not a disqualifying factor but noted the child's lack of emotional connection with the step-family. Citing Anjali Kapoor v. Rajiv Baijal (2009) 7 SCC 322, the Court recorded that "the child had remained with the grandmother for a long time and was growing up well in an atmosphere conducive to its growth."
On the issue of shifting custody, the Court observed: "Today, we cannot cast the horoscope of the coming events in the life of child. In the present circumstances, it is not justified in directing the child to be handed over to the father on the basis of an uncertain future."
The Court stated the distinction between guardianship and custody, noting from Athar Hussain v. Syed Siraj Ahmed AIR 2010 SC 1417 that "Father was found fit to be guardian and was allowed to continue as such but was denied custody."
The High Court upheld the directives issued by the Family Court, which included:
- Continued custody of the minor girl with her maternal grandparents until she attains majority or opts to live with her father thereafter.
- Visitation rights for the appellant and his second family.
- A lump-sum deposit of Rs. 10 lakhs in the name of the minor for future education and marriage expenses.
- Monthly maintenance of Rs. 7,000 with an annual increment of Rs. 500.
- Interest at 6% per annum on delayed payments.
The High Court directed: "The appellant is directed to comply various directions mentioned in the impugned judgment including deposit of lump-sum amount of Rs.10 Lacs with interest @ 6% per annum... and also arrears of maintenance amount within eight weeks from the date of this judgment."
Advocates Representing the Parties
For the Appellant: Ms. Nivedita Nirvikar, Senior Advocate; Ms. Shashi Priya, Advocate
For the Respondents: Mr. Rajendra Narain, Senior Advocate; Mr. Jitendra Kumar Roy, Advocate
Case Title: XXX v. YYY
Case Number: Miscellaneous Appeal No. 319 of 2020
Bench: Justice P. B. Bajanthri, Justice Sunil Dutta Mishra
[Read/Download order]
