MEERA AGARWALLA Vs. SHYAM SUNDAR AGARWALLA

JUDGEMENT

(1.) This appeal is concerned with the wardship proceeding effecting the custody, care and control of minor Ankur who was born on 9.12.1991. The real issue in this case is whether the child Ankur should be given in custody of the paternal grandfather or the maternal grandfather which has arisen on the following circumstance :

(2.) The respondent in this proceeding made an application before the Family Court for an order as to the guardianship of the minor Master Ankur impleading the mother of the child as well as the maternal grandfather, the appellants in this proceeding, as the opposite parties. The respondent, in the aforesaid application before the Principal Judge, Family Court pleaded that his only son Sanjay Agarwalla had married the opposite party No. 1 (appellant No. 1 herein) on 5.5.1990 as per the hindu rites and custom. Out of their wedlock Master Ankur was born on 9.12.1991. His son Sanjay Agarwalla died on 1.8.1995. The opposite party No. 1 (appellant No. 1) used to live in his house with Master Ankur till the first part of 19%. She left the house in the first part of 1996 for Bombay leaving Master Ankur with him and his wife with the intention to re-marry. She returned to his house in July, 1996. On July 26, 1996 the opposite party No. 1 went out with Master Ankur (hereinafter referred to as the Minor) for a walk in the garden with his permission. But instead of returning to his house the opposite party No. 1 along with the minor went to the house of her father (opposite party No. 2). He went to the house of the opposite party No. 2 (appellant No. 2) with his wife and found his grand son eagerly waiting for them. Then the respondent wanted to take back his daughter in- law with her son (that is the appellant. No. 1 and the minor) the appellant No. 2 informed him that the appellant No. 1 would get remarried soon and the minor would remain with the appellant No. 2. Appellant No. 1 finally re-married at Calcutta to one Rajesh Bansal of Calcutta, a widower having a 10 years son and 5 years daughter. The respondent corning to know that the minor would be adopted by the appellant No.2 and thereby depriving him on his only male legal heir the respondent instituted the case before the Family Court on 27.2.1997 u/s 7 of Guardians and Wards Act, 1890 (hereinafter referred to as the Act, 1890) for appointing him as the guardian and custodian of the minor. Respondent also moved a petition under Order 39. Rules 1 and 2 CPC for restraining the opposite party No. 1 (appellant No. 1) from giving the minor to her father, the opposite party No. 2 (appellant No.2) for adoption. The notice of injunction was served on the opposite party No. 1 on 28.2.1997. The opposite party No. 1 filed her objection against the injunction petition stating, inter alia, that her father the opposite party No. 2 had adopted the minor at Dergaon on 9.2.1997 and the adoption was duly registered on 27.2.1997/ 28.2.1997. The respondent questioned the aforesaid adoption as violative of the provisions of the Hindu Adoptions and Maintenance Act, 1956 (for short the Act, 56) so much so that the opposite party No. 2 had already adopted another boy Sanjeet Khadaria on 18. 12.1987. The respondent (petitioner) before the Family Court also pleaded that the minor is his only legal heir, the opposite party No. 1 (appellant No. 1) was living in Calcutta after re-marriage. The minor Ankur is his only male legal heir and island of hope. Accordingly he prayed for the guardianship of the minor. The appellants as opposite parties contested the claim of the respondent and filed two separate written statements contents of which are similar in nature and which are dealt herein below. According to the opposite parties, the opposite party No. 1 lived in the house of the petitioner with the minor after the death of Sanjay Agarwalla, husband of the opposite party No. 1. It was admitted that the opposite party No. 1 was taken to Bombay keeping the minor in the petitioner's house in connection with her remarriage and that ultimately opposite party No. 1 got married to one Rajesh Bansal of Calcutta. They claimed that before re-marriage the opposite party No. 1 lived in the house of the petitioner with the minor but she was not properly treated by her uneducated father-in-law and mother-in-law. The opposite party No. 1 asserted that her life as well as the life of the minor was made miserable by the in-laws and they began to hurl allegation on her character. In those circumstances she left the house with the minor and according to the opposite party No. 1, for such leaving no such permission is required either for herself or for the minor as she was a natural guardian of the minor at the relevant time. The-opppsite party also pleaded and asserted that the opposite party No. 2, father of the opposite party No. 1 is/was rich person having enormous resources to take care of the minor whereas the petitioner is comparatively much poorer to the appellant No. 2. The opposite party No. 1 in her written statement, which was also adopted by the opposite party No. 2 in its entirety alleged that the application u/s 7 of the Act, 1890 became infructuous on the ground that the minor was given in adoption on 9.2.1997 by the appellant No. 1 to the appellant No. 2 according to hindu rites and customs and subsequently on 27.2.1997/28.2.1997 the deed of adoption was executed between the respondents 1 and 2 which was registered at Golaghat Sub Registry Office since the adoption place at Dorgaon. The opposite party also questioned the jurisdiction of the Family Court in maintaining the petition for guardianship on the face of the adoption of the minor by the appellant No. 2. 2A. The opposite party also pleaded that the petitioner (respondent in this appeal) and his wife had bequeathed all their movable and immovable properties in the name of their two daughters leaving nothing for the grand son who was given on adoption to the opposite party No. 2 who became the natural guardian of the minor and, therefore, question of appointing the guardian did not arise.

(3.) Upon pleadings, the Family Court framed the following issues : 1. Whether the petition for guardianship is maintainable? 2. Whether welfare of the minor Master Ankur would be better protected if he is given in custody of the petitioner from the respondent No. 2?