HEMANT SINGH Vs. STATE OF M P

JUDGEMENT

(1.) Heard on the question of admission. The appellant/petitioner has filed this appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 being aggrieved by the order dated 14/05/2013 passed by Single Bench of this Court in W.P. No. 7788/2013; whereby, the petition of the appellant filed under Article 226 of the Constitution of India for interim custody of his son Master Tanishk Rawat, has been dismissed.

(2.) After taking us through the averments of the appeal, initially the case was argued at length for admission and allowing this appeal by the appellant's counsel, but on making certain query that in view of the provisions of the Guardians and Wards Act, 1890 in which provisions to appointment of guardian and to decide the interim custody are available, then how the impugned petition under Article 226 of the Constitution of India is entertainable, on which placing his reliance on a decision of Apex Court in the matter of Athar Hussain Vs. Syed Siraj Ahmed and others, 2010 2 SCC 654, he said that appointment of guardian and decide the interim custody of such minor, both are different things. Out of them, the proceedings for appointment of guardian could be entertained by the District Court having the territorial jurisdiction under the provisions of Guardians and Wards Act; while, the question for giving the interim custody of the minor could be considered and decided by this Court under Article 226 of the Constitution of India.

(3.) Keeping in view the principle laid down in the cited case, on making another query that what error has been committed by the Single Bench in dismissing the impugned petition holding that petitioner/appellant is not entitled for the interim custody of the aforesaid minor and in support of such contention the welfare of the child was also taken into consideration, on which appellant's counsel submits that in any case, the appellant has a right to approach the appropriate forum i.e. District Court for appointment of the guardian under the provisions of Guardians and Wards Act and such Court can decide the matter after recording the evidence of the parties and in such premises, instead to argue further, the counsel seeks permission to withdraw this appeal with liberty to file the appropriate proceedings for appointment of guardian of the aforesaid minor child before the appropriate forum prescribed under the provisions of Guardians and Wards Act, with a further prayer for appropriate direction that on filing such a proceeding on behalf of the appellant, then such forum of the Guardians and Wards Act shall consider and decide the same on its own merits in accordance with the law and procedure, without being influenced from any findings of the observations made by the Single Bench in the impugned order. Considering the aforesaid prayer, without expressing any opinion on the merits of the impugned order, this appeal is hereby dismissed as withdrawn. However, considering the aforesaid subsequent oral prayer of the appellant's counsel, he is extended a liberty to file the appropriate proceedings for appointment of the guardian of the aforesaid minor before the appropriate forum under the provisions of Guardians and Wards Act and pursuant to it, said Court is directed to consider the same on its own merits in accordance with the procedure prescribed under the Guardians and Wards Act. Such Court is further directed that such proceedings be decided finally after recording the evidence of the parties, so also without influencing from any observation of the findings of the impugned order of the Single Bench. However, it is made clear that question of interim custody of the minor, keeping in view his welfare has already been decided by the Single Bench, hence, such Court shall decide the case finally and on every interlocutory stage of such matter, the impugned order passed by the Single Bench shall remain in force between the parties.