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PETITIONER: JAI PRAKASH KHADRIA

       Vs.

RESPONDENT: SHYAM SUNDER AGARWALLA & ANR.

DATE OF JUDGMENT:       12/05/2000

BENCH: S.B.Majumdar, Y.K.Sabharwal

JUDGMENT:

     Y.K.SABHARWAL J.

     Leave granted in SLP(C) No.5357/2000.

     Two  grand  fathers  -  maternal and  paternal  -  are fighting  bitter  litigation to secure the custody of  their grandson,  Ankur.   It is second time that they  are  before this  Court.   Our efforts for amicable  settlement  between them  have  not  succeeded.  We, however, hope that  in  the interest  of their grandchild at last they will resolve  the controversy  in near and not distant future and bring to end the  litigation  which commenced after respondent no.1  lost his son and the appellant his son-in-law.

     In May 1990, marriage was solemnised between Meera and Sanjay and out of wedlock, Ankur was born in December, 1991. On  attaining three years of age, he was admitted into Maria Montessory    School,   Guwahati   in    the   year    1995. Unfortunately,  all  of  a sudden, Sanjay died  in  a  heart attack  in  the year 1995.  Ankur’s paternal  grandfather  - respondent  no.1, on 27.2.97 filed a case under Section 7 of Guardians  and  Wards  Act,  1890,  for  appointing  him  as guardian  and  custodian of Ankur and an ex-parte  order  of injunction  was  also sought restraining Meera  from  giving Ankur  in adoption to her parents or any other person.   The Principal  Judge, family court, directed the maintenance  of status-quo  with respect to Ankur.  In opposition, the stand taken  by  the  appellant  - maternal  grandfather  and  his daughter  - was that Ankur had been adopted by appellant  on 9.2.97  and subsequently on 27.2.97, a deed of adoption  was executed  and  the  said  deed was  registered  at  Golaghat sub-Registry  as  the adoption took place at  Dergaon.   The deed of adoption, it seems, was registered on 28th February, 1997.   The  family court rejected the prayer of  respondent no.1  for  interim custody of the child but respondent  no.1 succeeded  in the revision petition filed in the High  Court against  the  order  of the family court.   The  High  Court directed  on 19.2.98 that interim custody of Ankur be  given to   respondent  no.1  till   disposal  of  application  for appointment of guardian.  That order was, however, varied by this  Court  in  the  Special Leave petition  filed  by  the appellant  on agreement of the parties in terms of order  of

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this  Court  dated  15th September, 1998.   The  said  order directed  access of Ankur being given to respondent no.1 and his  wife  on certain days and the arrangement in  the  said order was directed to continue till the disposal of the case pending before Family Court.

     The  Family  Court by order dated 7th  December,  1998 appointed  respondent no.1 as guardian of minor Master Ankur and  the  appellant was directed to hand over the  child  to respondent  no.1  as soon as his examination is  over.   The challenge  of  the appellant and his daughter of  the  order passed  by the Family Court did not succeed before the  High Court.   Their  appeal  was dismissed and the order  of  the Family  Court  was maintained.  These are the  circumstances under  which  the matter is once again before this court  on this   appeal   having  been   preferred  by  the   maternal grandfather.

     The  Family  Court and the Division Bench of the  High Court  have  extensively examined the matter and  given  due weight to the relevant factors for considering the aspect of the welfare of the minor which is of paramount importance in the  custody  matters.   It has also been noticed  in  these orders  that  in May 1997, Meera remarried and  her  husband from first marriage has two children - one now aged about 14 years and other 9 years.  She is settled with her husband in Calcutta.   The  dispute  regarding   the  validity  of  the adoption  is  subject  matter  of Title Suit  No.4  of  1997 pending  between the parties.  The observations made in  the judgments  of  the  High Court and of the  Family  Court  in respect of the adoption and deed of adoption are prima facie for  deciding the question of custody.  We find no fault  in this approach.  Undoubtedly the substantive rights in regard to  adoption  would be decided in the title suit on its  own merits.

     It  seems  evident  that none of the parties  has  any oblique  motive.  All of them have utmost love and affection for  Ankur and we suppose that with that object in view, the custody  is being sought by maternal grandfather on the  one hand  and paternal grandfather on the other.  Another reason may  be  to  have  a  male member  in  the  family  as  both grandparents have only daughters, the only male member being father of Ankur having died.

     Ankur  had  been studying at Maria Montessory  School, Guwahati from 1995 till he shifted to Dergaon along with the appellant  in  April 1999.  Dergaon is about 200  kilometers away  from Guwahati.  He has been admitted in a school which is  25 kilometers from Dergaon though he daily travels about 50  kilometers  both  ways  in   the  personal  car  of  the appellant.   Both  the  parties seem to  be  quite  affluent though  by that itself cannot be the only criteria.  We  are informed  that the Maria Montessory School is only about one kilometer from the place where paternal grandparents reside. None says that it is not a good school.  Serious doubts that have  been expressed about the validity of the adoption were sought to be explained by learned counsel for the appellant. We,  however,  refrain from commenting upon the validity  of adoption in view of the pendency of the suit challenging it. The  reasons  given by the Family Court and High  Court  for directing  custody  of Ankur being given to  the  respondent no.1  cannot  be faulted.  In the custody  proceedings,  the case  of the daughter of the appellant also was that as  she has  given Ankur in adoption of her father, he alone is  the

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lawful  guardian and thus her father-in-law does not deserve to  be appointed a guardian and given custody of Ankur.   We may  also  note  that initially, she did not  challenge  the order  of  the  High Court but during the  pendency  of  the Special  Leave  Petition filed by her father, she has  filed Special  Leave  Petition.   In  view   of  her  stand  about adoption,  we  cannot entertain her Special Leave  Petition, also  now  contending  that  she may  be  appointed  as  the guardian of Ankur.  This was not the claim before the Family Court or the High Court.

     The  orders relating to custody of children are by the very  nature  not final but are interlocutory in nature  and subject  to  modification at any future time upon  proof  of change of circumstances requiring change of custody but such change  in  custody  must be proved to be in  the  paramount interest of the child (Rosy Jacob v.  Jacob A.  Chakramakkal [(1973) 1 SCC 840]).

     Having  heard Mr.  Gopal Subramaniam, Dr.  Singhvi and Dr.   Rajeev Dhavan, and on examination of the record, we do not  think that the impugned order deserves to be interfered with.

     The  High  Court in the impugned judgment  has  agreed with the reasoning and final conclusion to which the learned Principle   Judge,  Family  Court   reached  in  favour   of respondent  no.1.  It has to be kept in view that respondent no.1 is the paternal grandfather of child Ankur.  He appears to  have lot of attachment to him.  In fact, it was the case of  the  maternal grandfather himself that during  the  time minor  Ankur was with respondent no.1, he and his wife  were over- fondling him.  This shows their attachment to him.  It has  also  to  be noted that the evidence  laid  before  the Principal  Judge, Family Court shows that earlier respondent no.1   had  executed  wills   bequeathing  his  movable  and immovable  properties in favour of his daughters but he  has cancelled  the  said Wills and by two Wills (Ex.  4  and  5) executed   by  his  wife   and  himself  respectively,  they bequeathed their entire property in favour of minor Ankur on condition  that  he comes and live with them.  It  has  also been  noted by the Principal Judge, Family Court that during the  time  minor Ankur was in the custody of  the  appellant pursuant to the interim order in these proceedings, he spent most of his time with servants in the house of the appellant at Guwahati as he lived mostly in Dergaon which is about 200 kms.  from Guwahati.  As all the daughters of appellant were living  outside,  there  was  no  other  person  except  the servants  of  appellant  in his house to  look  after  minor Ankur.   All these circumstances well established on  record clearly  show  that  there is no infirmity in  the  decision rendered  by the Family Court as confirmed by the High Court directing  custody  of  minor  Ankur to be  handed  over  to respondent no.1, his paternal grandfather.

     However,  we  feel  that the impugned  custody  orders require to be worked out for three years so that there is no interruption  of Ankur’s study every now and then.  If after the  expiry of the said period, circumstances warrant in the interests  of Ankur, the matter of custody can be reagitated before an appropriate forum.  However, appropriate orders in respect  of  visitation rights deserve to be passed so  that the  maternal  grandparents  and the mother have  access  to Ankur.  We, therefore, direct as under :-

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     1.   The  custody  of Ankur would be  handed  over  to respondent  no.1  forthwith  so  that there  is  no  further disruption  in  his  studies and he can be admitted  in  the school at Guwahati without any delay.

     2.   During  half period of summer, winter  and  other long vacation, the temporary custody of Ankur would be given to  the  appellant.  It would be for the appellant  and  his daughter  to  decide  where  Ankur  should  spend  the  said vacation period.  The appellant, his wife and the mother can meet  Ankur as and when they like in the house of respondent no.1 so long as it does not hinder his studies.

     3.   The  appellant would also have the right to  take Ankur  to  Dergaon on any one week-end in a month by  taking him  on Friday evening or Saturday morning but ensuring that he reaches back Guwahati by Sunday evening.  This is subject to the condition that school is for five days.  Otherwise he can be taken after school on Saturday and returned on Sunday evening.

     SLP(C)  No......../2000 [CC 2745 of 2000] is dismissed and  the  appeal arising out of SLP (C) No.5357 of  2000  is disposed of in the above terms.

     ....................J.  (S.B.  Majmudar)

     ....................J.   (Y.K.   Sabharwal) New  Delhi May 12, 2000

     Before  parting  with  this matter we put  it  to  the learned  counsel for appellant no.1-Jay Prakash Khadria  and to   learned  counsel  for   respondent  no.1-Shyam   Sunder Agarwalla  to be good enough to deposit in fixed deposits in a   nationalised   bank  at  Guwahati   a  net   amount   of Rs.10,00,000/-  (Rupees  Ten Lac only) each in the  name  of minor  Ankur.   Rs.10,00,000/- be deposited in the  name  of minor  Ankur  represented by Jay Prakash  Khadria.   Another amount  of Rs.10,00,000/- be deposited in the name of  minor Ankur  represented  by  Shyam Sunder Agarwalla,  each  being shown  as  guardian  of minor for the  limited  purposes  of taking  out  these fixed deposit receipts.  Learned  counsel for  the  said parties have agreed to this  suggestion.   WE direct accordingly.  The said amounts, on being deposited as aforesaid,  shall  remain  deposited and the  Fixed  Deposit Receipts  may  be got renewed from time to time  till  minor Ankur  attains majority.  Neither the principal amounts  nor the  interest  accrued  thereon  shall be  permitted  to  be withdrawn  by the respective persons who have deposited  the same  in  the name of minor Ankur till he attains  majority. The aforesaid deposits shall be made within eight weeks from today.