Sanchayita Lahkar

The High Court of Andhra Pradesh Division Bench of Justice Ravi Nath Tilhari and Justice Challa Gunaranjan dismissed an appeal filed under Section 47 of the Guardians and Wards Act, 1890, challenging the denial of custody of a minor boy to his biological father. The Court held that the appellant, despite being the natural guardian and having been acquitted in a criminal case concerning the death of the child’s mother, was not entitled to custody. It directed that the custody of the minor shall remain with the maternal grandparents and uncle, who had been taking care of the child since 2017, citing the child's welfare, current stability, and his consistent unwillingness to return to the appellant.

The appeal arose under Section 47 of the Guardians and Wards Act, 1890, from the order dated 12.12.2022 passed in G.W.O.P. No.13 of 2020 by the Principal District Judge, Ananthapuram, which dismissed the custody claim of the appellant, the biological father of a minor boy. The respondents, comprising the child’s maternal grandfather, grandmother, and maternal uncle, had assumed custody following the death of the child’s mother on 04.09.2017.

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In the aftermath of the mother’s death, a criminal case was registered against the appellant and his parents under Sections 498-A, 302, and 201 read with Section 34 of the IPC. The appellant contended that the child had been taken away under false pretenses by the respondents and that despite repeated approaches, they refused to return custody. He claimed the child was under forced control and being deprived of paternal love and care. It was his case that the criminal case had falsely implicated him in what he claimed was a suicide, not a murder, and that the respondents had used the situation to alienate the child from him.

The respondents, in their counter, accepted the familial relationships but stated that there had been demands for dowry and that the appellant had subjected his wife to mental and physical cruelty, culminating in her death. They submitted that the minor had been enrolled in Euro School, Bangalore, and was in Grade 3 at the time of filing. They had taken financial steps including a ₹5,00,000 fixed deposit in the child's name. The respondents further submitted that they had filed G. & W.C. No.101 of 2018 before the III Additional Principal Judge, Family Court, Bangalore, seeking guardianship of the minor, and that the appellant had concealed this when he later filed G.W.O.P. No.13 of 2020 in Ananthapuram. In the Bangalore case, I.A. No.5 of 2019 seeking custody was filed by the appellant and rejected.

During the pendency of G.W.O.P. No.13 of 2020, the appellant was acquitted in Sessions Case No.207 of 2018. In the custody proceedings, the appellant examined himself as P.W.1 and marked two exhibits: a photograph with the child (Ex.A1) and the certified copy of his acquittal judgment dated 12.04.2022 (Ex.A2). The respondents examined R.W.1 (the maternal uncle) and marked Exs.B1 to B4, which included school fee receipts, fixed deposit bonds, certificates relating to the child, and the certified copy of the interim custody rejection order in I.A. No.5 of 2019.

The trial court framed the issues as: (i) whether the petitioner was entitled to custody, and (ii) to what relief. After evaluating evidence and hearing the parties, the court concluded that while the appellant was the father and a government school teacher earning sufficient salary, the maternal uncle was a software engineer in Bangalore, and the grandparents had made adequate arrangements for the child’s welfare and education. It recorded that although the appellant had been acquitted, the child had testified against him during the criminal trial and also made statements under Section 164 Cr.P.C. The child, when presented before the court, clearly expressed that he did not wish to go with the appellant. The trial court held that changing custody abruptly would not serve the child's welfare and development.

In appeal, the appellant contended that on the day of the incident he was in school and returned only upon receiving news of his wife’s hospitalization. He submitted that the child was taken away by the respondents under the guise of emotional support and was then influenced to testify against him. He further submitted that the Sessions Court did not believe the child’s testimony, and his acquittal confirmed the absence of any wrongdoing. The appellant asserted that he did not remarry, lived with his retired father who received a pension, and that the child’s welfare would be best served under his custody. He referred to the child as the only remaining family he had, and submitted that depriving the child of a father's love was unjustified.

The appellant also explained that he had previously filed G.W.O.P. No.79 of 2018, which he withdrew based on a community panchayat where it was agreed that custody would be returned to him. He claimed the withdrawal should not be held against him, as the respondents failed to honour the informal agreement. In support, the appellant cited Tejaswini Gaud v. Shekhar Jagdish Tewari, (2019) 7 SCC 42; Manchala Hushikesh v. Terala Pradeep Kumar, (2001) 3 ALD 454; and Anuj Sharma v. Ram Gopal, 2014 SCC OnLine Raj 140.

The respondents submitted that the withdrawal of G.W.O.P. No.79 of 2018 was not based on any compromise, but due to the appellant's lack of bona fides. They asserted that the minor had been living peacefully and safely under their care and that he had categorically refused to go with the appellant when asked in court. They referenced their pending guardianship case in Bangalore and an injunction passed therein on 04.04.2018 restraining the appellant from removing the child from their custody. They also alleged an incident on 03.05.2023 where the appellant attempted to take the child by force, resulting in a police complaint on 14.05.2023 and an application for disobedience of court orders.

The respondents filed Criminal Appeal No.380 of 2022 challenging the appellant’s acquittal, which remained pending before the High Court. In support of their case in the present appeal, they submitted a counter affidavit dated August 2023, annexing the criminal appeal memo; a memo dated 02.08.2024 with the order dated 23.04.2024 rejecting the appellant’s application for visitation rights; a memo dated 18.09.2024 with depositions of 14 witnesses and Section 313 statements from the Sessions Case; a memo dated 01.10.2024 with photographs of the child; and a memo dated 09.12.2024 bringing on record orders from the High Court of Karnataka dated 25.09.2024 and 22.10.2024 in W.P. No.16271 of 2024.

The appellant filed a rejoinder affidavit dated 25.08.2024 and written pleadings, reiterating his legal position and enclosing cited case law. Both parties submitted that the child’s well-being and best interests were of paramount importance. The appeal brought into focus the statutory framework under the Guardians and Wards Act, 1890, as well as judicial precedents on natural guardianship, parental rights, and minor preference.

The High Court noted that it had received and considered all submissions, affidavits, documentary material, previous judicial orders, and records from related proceedings, including school records, depositions, photographs, and certified copies of judgments. The matter was heard in full and taken up for judgment.

The Court examined the judgment of the trial court and the entire record in appeal. It began by referring to paragraph 22 of the trial court’s order, which had found that both the appellant and the respondents were financially stable and capable of supporting the child. However, the trial court had declined custody to the father primarily because the child had been in the care of the respondents since 2017 and had shown clear refusal to go with the appellant. The court observed: “All of a sudden, if the custody of a minor child (ward) is given to the petitioner, it is not possible to the ward to develop love and affection upon his father.”

The appellate bench referred to the legal position that custody matters are not to be decided based on the rights of the parties, but rather by determining what is in the best interest of the child. It cited the principle from Laxmi Kant Pandey v. Union of India and Nil Ratan Kundu v. Abhijit Kundu, stating: “It is not the welfare of the father, nor the welfare of the mother, that is the paramount consideration for the Court. It is the welfare of the minor and of the minor alone which is the paramount consideration.”

The Court reviewed the Sessions Court’s observations from the judgment dated 12.04.2022 in S.C. No.207 of 2018. It noted that the child, examined as P.W.8, had made a statement under Section 164 Cr.P.C. and deposed in court, describing his father as having assaulted his mother with a stick. However, the Sessions Court had recorded that the child's presence at the time of the incident was doubtful, citing inconsistencies and the absence of blood-stained clothes. The High Court remarked: “The learned Sessions Court… did not rely on the child testimony for want of corroboration.”

Nonetheless, the Division Bench found that the Sessions Court’s evidentiary conclusions did not eliminate the fact that the child had testified against the appellant multiple times. The Court stated: “The child may or may not be the eye witness… but still the fact remains that the child actually deposed… under Section 164 Cr.P.C… and also as a witness as P.W.8… implicating [the father].”

The Bench noted that the respondents had produced photographs of the child, documents related to his education and healthcare, and demonstrated continuity in care. It also recorded that the order dated 23.04.2024, passed by the Family Court, Bangalore in G. & W.C. No.101 of 2018, had rejected the appellant’s application for visitation rights. The Family Court had interacted with the child and recorded: “The child expressed his unwillingness to go with his biological father and expressed his willingness to stay with his maternal grandparents and uncle.”

The High Court found this judicial finding consistent with the child’s earlier statements and conduct. It reviewed the appellant’s reliance on precedents including Tejaswini Gaud, Manchala Hushikesh, and Anuj Sharma, and observed that in each of those cases, the facts were distinguishable. In particular, in Manchala Hushikesh, the police had filed a final report as a mistake of fact, and there was no child testimony against the parent. Here, in contrast, the child had deposed against the appellant.

The Court also referred Kirtikumar Maheshanker Joshi v. Pradipkumar Karunashanker Joshi, where the Supreme Court had declined custody to a natural guardian on account of the children's unwillingness and emotional trauma. It stated: “Keeping in view the facts and circumstances of this case and the wishes of the children… we are not inclined to hand over the custody… at this stage.”

Addressing the impact of the pending criminal appeal filed by the respondents against the acquittal, the High Court stated: “We are not observing, on any such aspect, conclusively… what we consider in the present appeal is, what stands as on today and that too, only for the purpose of considering the welfare of the child.” The Bench clarified that the observations in the present judgment would not affect the outcome of the criminal appeal, which would be adjudicated independently.

The Court concluded that the child had been in the continuous care of the maternal family since 2017, was settled in his school, and had expressed a consistent unwillingness to return to his father. The Bench stated: “The learned court also recorded that the ward did not accept to go with the father and if all of a sudden the custody of the ward was given to the petitioner/appellant, the same would not be in the interest of the ward for his development.”

It acknowledged the appellant’s status as a natural guardian but recorded: “The learned court recorded that the appellant though natural guardian being the father… taking overall view of the matter, he could not be given custody.”

Finally, the Court recorded that no circumstance had been shown that would warrant interference with the trial court’s findings, and no material had been produced in appeal to contradict the trial court’s view on the child’s preferences, psychological welfare, and present living arrangements.

The High Court dismissed the appeal seeking custody of the minor child but allowed limited and supervised visitation rights to the appellant. The Court issued structured directions governing the terms and conditions of the visitation arrangement.

The appellant is permitted to visit the child twice a month, specifically on the first and third Saturdays. Each meeting shall be for a duration of two hours, from 1:00 p.m. to 3:00 p.m. These meetings shall take place within the premises of the Family Court at Ananthapur. The respondents are directed to ensure the presence of the child at the specified place, time, and dates.

The appellant is not permitted to take the child outside the premises during these meetings. He is required to conduct himself in a responsible manner and must not cause any embarrassment to the child or hurt the child’s feelings during the visits. The respondents are also directed not to obstruct or cause inconvenience to the appellant during his interaction with the child.

The paternal grandparents are allowed to meet the child on the same days and during the same hours at the same location. The same conditions applicable to the appellant will apply to them as well.

The visitation shall take place under the supervision of the Judge, Family Court, Ananthapur. The Judge may be present personally for the duration of the meetings or may delegate the responsibility to a designated officer. The Judge is also authorized to take necessary steps to ensure the child’s safety and may request the local police to depute one or two constables in civil uniform, if necessary.

No other individual shall be permitted in the meeting room apart from those covered by the directions issued. After each visitation, the Judge, Family Court, shall submit a report to the High Court through the Registrar (Judicial), in a sealed cover, to be placed on the record of the appeal.

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Additionally, the appellant and the paternal grandparents are permitted to communicate with the child via video conferencing for one hour every Sunday, preferably between 2:00 p.m. and 4:00 p.m. To enable this, the appellant shall provide a suitable smartphone to the child.

These visitation arrangements will remain in effect for an initial period of three months starting from 1 May 2025. After this period, the Court will review the situation and consider whether to continue, modify, or expand the visitation provisions.

There was no order as to costs. A copy of the judgment was directed to be sent to the Principal District Judge and the Judge, Family Court, Ananthapur. Any pending miscellaneous petitions were deemed closed.

Advocates Representing the Parties

For the Appellant: Sri K.P. Abhiram, Advocate

For the Respondents: Sri Vivekananda Virupaksha, Advocate

Case Title: XXX v. YYYY

Case Number: C.M.A. No.247 of 2023

Bench: Justice Ravi Nath Tilhari and Justice Challa Gunaranjan

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