# Gulshan & Anr v. Shahjahan

- **Citation:** (2020) 2 ILRA 988
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-23
- **Case number:** First Appeal No. 625 of 2015
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gulshan-anr-v-shahjahan-45328
- **Pages:** 5

## Headnote

A. Civil Law-Guardian and Wards Act (8 of
1890) - S. 8 - Appointment of guardian -
Custody of minor girl after mother death -
Given to father u/s 8 - Challenge by
mausi on the ground that natural father
plaintiff has remarried and therefore not
practical to give guardianship of minor to
natural father - Held - father is natural
guardian of minor - After death of
mother, it is father who is entitled to
guardianship of minor children - this rule
is subject to certain exceptions - Such
exceptions should be strong enough to
deprive the father of guardianship of
minor
children
-
No
interference
warranted in custody order. (Para 15)

Firtst Appeal dismissed. (E-5)

## Text

988 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)02ILR A988

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

First Appeal No. 625 of 2015

Gulshan & Anr. ...Appellants
Versus
Shahjahan ...Respondent

Counsel for the Appellants:
Sri Abhishek Kumar

Counsel for the Respondent:
Sri Manoj Yadav

A. Civil Law-Guardian and Wards Act (8 of
1890) - S. 8 - Appointment of guardian -
Custody of minor girl after mother death -
Given to father u/s 8 - Challenge by
mausi on the ground that natural father
plaintiff has remarried and therefore not
practical to give guardianship of minor to
natural father - Held - father is natural
guardian of minor - After death of
mother, it is father who is entitled to
guardianship of minor children - this rule
is subject to certain exceptions - Such
exceptions should be strong enough to
deprive the father of guardianship of
minor
children
-
No
interference
warranted in custody order. (Para 15)

Firtst Appeal dismissed. (E-5)

(Delivered by Hon'ble Rajeev Misra, J).)

1. This is an appeal under section 19
of Family Courts Act, 1955 (hereinafter
referred to as 'Act 1955') filed by
defendants
appellants,
challenging
judgement dated 7.11.2015, passed by
Principal Judge (Family Court), Ballia, in
Misc. Case No. 18 of 2004 (Shahjahan Vs.
Jehangir) whereby, plaintiff-respondent
Shahjahan has been appointed as guardian
of minor Anjuman under section 8 of
Guardians
and
Wards
Act,
1890
(hereinafter referred to as 'Act 1890').

2. We have heard Mr. Abhishek
Kumar, learned counsel for defendantappellants
and
Mr.
Manoj
Yadav,
representing plaintiff-respondent.

3. It transpires from record that
marriage of plaintiff-respondent Shahjahan
was solemnized with Rabiya Khatoon on
26.11.2001, in accordance with Muslim
Rites
and
Customs. From
aforesaid
wedlock, a daughter namely, Anjuman
was born on 25.11.2002. Rabiya Khatoon,
wife
of
plaintiff-respondent
was
subsequently, diagnosed of having cancer.
Her treatment started. On account of
ailment suffered by Rabiya Khatoon, she
came to her parental home at Bansdih
Ballia along with her minor daughter
Anjuman. Ultimately, Rabiya Khatoon
wife of plaintiff-respondent died at her
parental home on 12.12.2003. Father of
Rabiya Khatoon/Materna Grand Father
(nana) of minor Anjuman retained minor
Anjuman. Ultimately, minor Anjuman was
given in the custody of Gulshan, sister of
Rabiya
Khatoon,
mother
of
minor
Anjuman. It may be noted that Gulshan is
sister-in-law
of
Shahjahan,
whereas
Jahangir is father-in-law of Shahjahan.

4. Plaintiff-respondent, Shahjahan
filed misc. case no. 18 of 2004 (Shahjahan
Vs.
Jahagir
and
another)
regarding
guardianship of minor Anjuman vide
plaint dated 13.7.2004. According to plaint
allegations, it was alleged by plaintiffrespondent that he was married to Rabiya
Khatoon on 26.12.2001 in accordance with
Muslim
Rites
and
Customs.
From
2 All. Gulshan & Anr. Vs. Shahjahan
989
aforesaid wedlock, a daughter namely,
Anjuman
was
born
on
25.11.2002.
Ultimately, it was discovered that Rabiya
Khatoon is suffering from cancer. The
plaintiff-respondent accordingly took his
wife Rabiya Khatoon to different Doctors
for medical treatment. On accunt of
ailment suffered by Rabiya Khatoon, she
came to her parental home along with
minor daughter so that she could meet all
of her relatives and friends in the last days
of her life. Ultimately, Rabiya Khatoon,
wife of plaintiff-respondent died on
12.12.2003
at
her
parental
home.
Thereafter,
Jahangir,
father-in-law
of
plaintiff-respondent retained custody of
minor Anjuman. Subsequently, custody of
Anjuman was given to Gulshan, another
daughter of Jahangir and sister-in-law of
plaintiff-respondent.
Thus,
plaintiffrespondent filed Misc. Case No. 18/04
(Shahjahan Vs. Jehangir and Another)
under Section 8 of Act 1890 for
appointment of himself as guardian of
minor Anjuman.

5. It was the case of plaintiffrespondent that minor Anjuman is not
being properly looked after by defendantappellants. The minor Anjuman has been
deprived of love and affection of father
and grand parents. Plaintiff-respondent has
solemnized his second marriage with
Yasmeen Khatoon on 14.4.2005. Plaintiffrespondent is capable of maintaining his
minor dauther and further provide her with
education.

6. Suit filed by plaintiff-respondent
was contested by defendant-appellants.
They accordingly filed a written statement
whereby, not only allegations made in
plaint were denied but also additional
pleas were raised. According to defendantappellants minor Anjuman is residing with
defendant-appellant no.2 Gulshan who is
her Mausi (sister of mother of minor
Anjuman). The minor is being maintained
from the income of husband of defendantappellant no.2. Plaintiff-respondent did not
undertake medical treatment of his wife
Rabiya Khatoon. Entire expences in
treatment of Rabia Khatoon were borne by
husband
of
defendant-appellant
no.2
Gulshan. Rabiya Khatoon, mother of
minor Anjuman, during her life time, had
executed
a
will
dated
10.11.2003,
providing that minor Anjuman shall be
brought up by defendant-appellant no.2
Gulshan. The minor is being looked after
by defendant-appellant no.2 like her own
child. Plaintiff-respondent wants to do
away with minor Anjuman. Lastly, it was
submitted that in maintaining minor
Anjuman, defendant-appellant no.2 incurs
an expense of Rs. 5000/- per month. As
such, in case the court comes to conclusion
that custody of minor be given to plaintiffrespondent than defendant-appellant no.2
be compensated by awarding payment at
the rate of Rs. 5000/- per month from
25.11.2002.

7. After exchange of pleadings,
parties went to trial. Plaintiff-respondent,
in support of his case, adduced himself as
A.P.W-1, Sarvdeo Upadhyay as A.P.W.-2
and Yasmeen Khatoon as A.P.W.-3.
Plaintiff-respondent filed photocopy of
F.D.R. in the name of Anjuman valued at
Rs. 1,00,000/-. Plaintiff-respondent also
filed documents relating to the education
of minor Anjuman and also pay slip of
Mustaque Ahmad, husband of defendantappellant
no.1
Gulshan.
Defendantappellant no.1, Gulshan in support of her
defence adduced herself as O.P.W.1,
defendant-appellant
No.2
Jahangir
adduced himself as O.P.W.-2 and minor
Muskan was adduced as O.P.W.-3. Vide
990 INDIAN LAW REPORTS ALLAHABAD SERIES
list of documents (paper no. 22 Ga),
defendant-appellant
No.1
filed
nine
documents. Apart from above, vide paper
No. 28 Ga, the birth certificate of
Anjuman and death certificate of Rabiya
Khatoon were also filed.

8. Court below examined the case of
parties in light of pleadings and evidence
both oral and documentary on record.
Court below concluded that plaintiffrespondent is the father of minor Anjuman
and therefore, he is natural guardian of
minor. The theory of will set up by
defendant-appellants was disbelieved by
court below as original will deed alleged
to have been executed by Rabiya Khatoon,
was never produced in Court. The defence
taken by defendant-appellants that it is
they who had borne the entire expenses,
pertaining to medical treatment of Rabiya
Khatoon was also disbelieved by court
below, in view of medical receipts
pertaining to Rabiya Khatoon being
produced
by
plaintiff-respondent.
Defendant-appellant
No.2
Gulshan
is
having two sons as is proved from
evidence of parties, therefore, contention
raised by defendant-appellant no.2 that she
has only one son was found false. On the
aforesaid factual premise, court below
concluded
that
under
aforesaid
circumstances, it is natural for minor
Anjuman to feel neglected. Court below
also recorded a finding that plaintiffrespondent has a tailoring shop from
which he has sufficient income. On
account of minor being detained by
defendant-appellant no.1 Gulshan, she has
been deprived of natural love and affection
of her father and grand parents. On the
aforesaid findings Court below opined that
plaintiff-respondent
is
liable
to
be
appointed as guardian of minor Anjuman.
Accordingly, Misc. Case No. 18 of 2004
(Shahjahan Vs. Jehangir and Another) was
allowed vide judgement dated 7.11.2015,
passed by Principal Judge, Family Court,
Ballia. Consequently, plaintiff-respondent
Shahjahan was appointed as Guardian of
minor Anjuman.

9. Thus, feeling aggrieved by
aforesaid judgement, defendant-appellants
have now come to this Court by means of
present first appeal, challenging judgement
and order dated 7.11.2015, passed by
Court below.

10. Mr. Abhishek Kumar, learned
counsel
for
defendant-appellants
has
challenged
judgement
and
order
7.11.2015,
passed
by
Court
below
primarily submitting that daughter of
plaintiff-respondent, namely, Anjuman, is
minor as her date of birth is 25.11.2002.
Secondly he submits that there was no
such evidence on record to show that
interest of minor was not well protected in
guardianship of defendant-appellant No.1
Gulshan.
Lastly,
he
submits
that
irrespective of the fact that plaintiffrespondent
is
father
of
minor
and
therefore, natural guardian of minor, the
guardianship of minor in favour of natural
father can be denied in exceptional
circumstances. Minor Anjuman was being
looked after by defendant-appellant no. 1
Gulshan from 2002 without any complaint
made by any person. The natural father i.e.
plaintiff-respondent
Shahjahan
has
remarried and therefore, it is not practical
to give guardianship of minor Anjuman to
natural father i.e. plaintiff-respondent
Shahjahan.

11. On the other hand Mr. Manoj
Yadav, learned counsel for plaintiffrespondent
has
supported
impugned
judgement and order on the strength of
2 All. Gulshan & Anr. Vs. Shahjahan
991
findings recorded therein. He further
submits that since plaintiff-respondent is
the natural guardian of minor Anjuman,
guardianship of minor cannot be denied to
him.

12. In view of rival submissions,
only one point for determination has arisen
which requires adjudication in this appeal,
i.e;

"Whether
Court
below
was
justified in appointing plaintiff-respondent
father of minor girl Km. Anjuman as
guardian instead of defendant-appellant
and judgement under appeal warrants
interference or not?"

13. Before proceeding to consider
respective submissions made by counsel for
the parties, it would be appropriate to refer to
section 8 of Act 1890, which reads as under:

"8. Persons entitled to apply for
order.--An order shall not be made under the
last foregoing section except on the application
of--

(a) the person desirous of being, or
claiming to be, the guardian of the minor; or

(b) any relative or friend of the
minor; or

(c) the Collector of the district or
other local area within which the minor
ordinarily resides or in which he has property;
or

(d) the Collector having authority
with respect to the class to which the minor
belongs."

14. Section 8 of Act 1890 provides as to
who may apply for an order regarding
appointment of guardian. Section 7 of Act
1890 empowers the Court to make order as to
guardianship. However, neither in section 7 or
in section 8, there are any indicators which
shall be followed by Court before making an
order regarding appointment of a guardian.
Similarly, Act, 1890 does not contain any
provision,
which
provides
the
facts/circumstances which are required to be
looked into before making an order appointing
a guardian nor there is any such provision
indicating facts and circumstances, which are
required to be ignored by Court while passing
an order regarding appointment of a guardian.

15. It is well established that father is
natural guardian of minor. After death of
mother, it is father who is entitled to
guardianship of minor children. Therefore, in
all probability, it is father who has to be
appointed as guardian of minor. However, this
rule is subject to certain exceptions. Such
exceptions should be strong enough to deprive
the father of guardianship of minor children.

16. Learned counsel for defendantappellant could not point out any such
special facts, existing in this case, on the
basis
whereof
plaintiff-respondent
Shahjahan could be denied guardianship
of
minor
Anjuman.
Similarly,
no
illegality
or
perversity
could
be
established by learned counsel for
defendant-appellants
in
respect
of
findings recorded by Court below. The
findings of fact recorded by Court below
remain intact. Logical conclusion is that
if findings could not be dislodged,
conclusion also cannot be dislodged. The
point for demarcation framed above,
therefore, is answered against appellants.

17. In view of above discussion,
this appeal is clearly devoid of merits
and therefore, liable to be dismissed. It is
accordingly dismissed.

18. Cost made easy.
----------
992 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)02ILR A992

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.11.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

First Appeal No. 626 of 2015

Gulabpati ...Appellant
Versus
Smt. Pushpa Rani Pandey & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Ganesh Datt Misra

Counsel for the Respondents:
Sri Manoj Kumar Singh

A. Civil Law-Civil Procedure Code (5 of 1908)
- Order 13, Order 8 - General Rules (Civil)
Chapter 3 Part C Rules 40 to 69 - Exhibit visà-vis Marking of paper - Suit for declaration
that plaintiff entitled to family pension - none
of the documents produced by parties were
either put for admission or denial - No
endorsement made personally by Presiding
Judge of Court below on the documents so
filed, admitting them in evidence - No
document filed by either of parties was
marked as exhibit - Held - until and unless a
document is admitted in evidence, it cannot
be marked as exhibit and unless the aforesaid
exercise is undertaken, there is no legally
admissible evidence on record - Marking of
mere paper number and decision of a case on
that basis is not correct - Procedure adopted
by court below in total ignorance of Order 13,
Order 8 C.P.C. as well as Rules 40 to 69 of
Chapter 3 Part C of General Rules (Civil) -
Trial of Original Suit held to be erroneous -
Matter remitted back for fresh consideration
(Para 22)

First Appeal allowed. (E-5)

List of cases cited :
1. New Okhla Industrial Development Authority Vs.
Kendriya Karamchari Sahkari Grih Nirman Samiti
Ltd., (2017) 4 UPLBEC 3077,

(Delivered by Hon'ble Rajeev Misra, J.)

1. Present First Appeal under Section 19
of Family Court Act, 1984 (hereinafter referred
to as 'Act 1984') has been filed by plaintiffappellant
challenging
Judgment
dated
28.10.2015 and decree dated 30.10.2015
passed by Principal Judge, Family Court, Basti
dismissing O.S. No. 15 of 2010 (Gulabpati Vs.
Smt. Pushpa Rani Pandey and others).

2. We have heard Mr. Ganesh Datt
Mishra, learned counsel for plaintiff-appellant
and Mr. Manoj Kumar Singh, learned counsel
representing defendant-respondents 2 and 3. In
spite of revision of cause list, no one has
appeared on behalf of defendant-respondent 1,
Smt. Pushpa Pandey.

3.

Plaintiff-appellant
Gulabpati
(hereinafter referred to as 'appellant') filed
O.S. No. 15 of 2010 (Gulabpati Vs. Smt.
Pushpa Rani Pandey and others) for a
decree
of
declaration
declaring
that
plaintiff alone is legally wedded wife of
Murli Prasad @ Murlidhar resident of
Village Dubaul, Tappa, Hardi, Pargana
Basti Pashchim, Tehsil Harraiya, District
Basti, who worked in Air Force, as such,
plaintiff alone is entitled to receive family
pension.

4. According to plaint allegations, it
was alleged that plaintiff is legally wedded
wife of Murlidhar Pandey @Murli Prasad
Pandey son of Chandra Prakash Pandey
resident of Village Dubaul, Tappa, Hardi,
Pargana Basti Pashchim, Tehsil Harraiya,
District Basti. Marriage of plaintiff with
Murlidhar Pandey @ Murli Prasad Pandey
was
solemnized
on
6.6.1965.
From