# Ram Naik Misra & Anr v. Km. Gauri & Ors

- **Citation:** (2019) 4 ILRA 1015
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-27
- **Case number:** First Appeal No. 53 of 2018
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-naik-misra-anr-v-km-gauri-ors-44912
- **Pages:** 17

## Headnote

Ramakar Shukla

A. Family & Personal Laws - Guardian
and Wards - Custody of minor to
Maternal Grandfather - Considerations
for Custody of child / minor - Paramount
considerations are welfare and wish of
minor
child
-
Maternal
grandfather
taking care of the minor children and
providing proper education - Minors
stated before court that they want to live
with
maternal
grandfather
-
Custody/guardianship of minor children
given to Maternal grandfather with their
father given visitation rights.

Mother of children committed suicide -
maternal grandfather filed case for appointing
himself as the guardian of minor children -
Family Court directed custody/guardianship of
minor children to the Maternal Grandfather
and not to father - Held - Minor children aged
about 15 yrs & 13 yrs - mature enough to give
their opinion - stated before court that they
want to live with maternal grandfather & do
not want to live with their father - Record
showed Maternal Grandfather is taking care of
the minor children and providing proper
education - father is the natural guardian of
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
the minor children & has a preferential right of
custody of the minor - but in the matter of the
custody of minor - the Court also has to
consider the welfare of the child & is also
required to consider the wishes of minor
children - no illegality in Family court order -
however father, being a natural guardian,
given the visitation rights, which was not given
by the court below (Para 31)

First Appeal partly allowed. (E-5)

List of cases cited: -

## Text

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4 All. Ram Naik Misra & Anr. Vs. Km. Gauri & Ors.
1015
relief claimed therein is similar to the
relief of permanent injunction sought in
Original Suit No.4 of 2019. The trial court
also examined effect of the proceedings
pending
before
Intellectual
Property
Appellate Tribunal and held that in light
of the relevant provisions of the Specific
Relief Act, the appellant may have the
same relief in the proceedings aforesaid.
So far as the orders passed by Delhi High
Court are concerned, I am also satisfied
that in light of the orders passed in letters
patent appeal, it cannot be said that the
issue with regard to trade mark has
acquired finality between the parties. The
Division Bench of Delhi High Court in
quite specific terms
held that the
respondent herein may avail remedy
under Section 57 of the Trade Marks Act,
1999 and the observations made by the
Deputy Registrar of Trade Marks under
order dated 15th December, 2017 as well
as under the order dated 20th October,
2017 shall not be treated as conclusive in
any manner and shall also not be deemed
to the reflection of the merits of the
appellant's application for rectification.

18. In view of whatever stated
above, I do not find any just reason to
arrive at the conclusion that the trial court
failed to appreciate its judicial mind while
examining the material available on
record
or
that
failed
to
exercise
jurisdiction vested with it while rejecting
the application under Order 39, Rules 1
and 2 of the Code of Civil Procedure,
1908. The order is neither perverse nor
the trial court failed to exercise or
exceeded jurisdiction vested with it. No
case hence, is made out for interference in
appellate jurisdiction.

19. The appeal hence, is dismissed.
----------
(2019)12 ILR A1015

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.11.2019

BEFORE
THE HON'BLE ANIL KUMAR, J.
THE HON'BLE SAURABH LAVANIA, J.

First Appeal No. 53 of 2018
&
First Appeal No. 55 of 2018

Ram Naik Misra & Anr. ...Appellants
Versus
Km. Gauri & Ors. ...Respondents

Counsel for the Appellants:
Prabhat Kumar

Counsel for the Respondents:
Ramakar Shukla

A. Family & Personal Laws - Guardian
and Wards - Custody of minor to
Maternal Grandfather - Considerations
for Custody of child / minor - Paramount
considerations are welfare and wish of
minor
child
-
Maternal
grandfather
taking care of the minor children and
providing proper education - Minors
stated before court that they want to live
with
maternal
grandfather
-
Custody/guardianship of minor children
given to Maternal grandfather with their
father given visitation rights.

Mother of children committed suicide -
maternal grandfather filed case for appointing
himself as the guardian of minor children -
Family Court directed custody/guardianship of
minor children to the Maternal Grandfather
and not to father - Held - Minor children aged
about 15 yrs & 13 yrs - mature enough to give
their opinion - stated before court that they
want to live with maternal grandfather & do
not want to live with their father - Record
showed Maternal Grandfather is taking care of
the minor children and providing proper
education - father is the natural guardian of
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
the minor children & has a preferential right of
custody of the minor - but in the matter of the
custody of minor - the Court also has to
consider the welfare of the child & is also
required to consider the wishes of minor
children - no illegality in Family court order -
however father, being a natural guardian,
given the visitation rights, which was not given
by the court below (Para 31)

First Appeal partly allowed. (E-5)

List of cases cited: -

1. Tejaswini Gaud & Ors Vs Shekhar Jagdish
Prasad Tewari & Ors Cri. Appeal No. 838 of 2019

2. Ruchi Majoo Vs Sanjeev Majoo (2011) 6
SCC 479

3. Lekha Vs P.Anil Kumar (2006) 13 SCC 555

4. Jitender Arora Vs Sukriti Arora reported in
(2017) 3 SCC 726

5. Nil Ratan Kundu Vs Abhijit Kundu reported
in (2008) 9 SCC 413

6. Nutan Gautam Vs Prakash Guatam (2019) 4
SCC 734

(Delivered by Hon'ble Anil Kumar, J.
 & Hon'ble Saurabh Lavania, J.)

1. In compliance of earlier order of
this Court, appellant Sri Ram Shanker
Misra, respondent Sri Satish Chandra
Misra, minor children namely Ms. Gauri
and Master Prakhar, are present before
this Court.

2. Vide judgment and order dated
11.04.2018, the Principal Judge, Family
Court, Sultanpur, decided two cases i.e.
Civil Misc. Case No.72 of 2010 (Ram
Naik Misra And Another Vs. Km. Gauri
And Others) and Civil Misc. Case No.68
of 2009 (Satish Chandra Misra Vs. Ram
Shanker Misra).

3. In both the above noted appeals
the judgment and order dated 11.04.2018
has been challenged and as such both are
being heard and decided by this judgment.

4. Heard, Sri Prabhat Kumar,
learned Counsel for the appellant and Sri
Ramakar Shukla, learned Counsel for the
respondent.

5. Facts in brief of the present case,
as per record, are that marriage between
appellant no.2/Ram Shanker Misra and
Moni Misra was solemnized in the year
2002 and out of the wedlock of appellant
no.2 and Moni Misra , two children were
born namely Ms. Gauri Misra and Mr.
Prakhar
Misra.
Matrimonial
relation
between the appellant no.2/Ram Shanker
Misra and Moni Misra has become
strained and on 02.04.2007 Moni Misra
tried to commit suicide and died on
09.04.2007
at
K.G.M.C.
Lucknow.
Thereafter, father of Moni Misra i.e. Sri
Satish Chandra Misra took the minor
children in his custody. On 10.04.2007 Sri
Satish Chandra Misra, lodged an F.I.R.
under Sections 304B/498A and 3/4
Dowry Prohibition Act and on 17.5.2007
filed an application under Section 125
Cr.P.C. for maintenance of children. The
appellant no.2/Ram Shanker Misra was
taken into custody in relation to the FIR
lodged by Sri Satish Chandra Misra and
on 09.06.2011, the court below has
acquitted the appellant Ram Shanker
Misra. During the pendency of Criminal
trial against the appellant(s), Sri Satish
Chandra
Misra
(ukuk),
maternal
grandfather, filed a Civil Misc. Case No.
68 of 2009 under Guardian and Wards
Act for appointing the guardian of minor
children. The appellant nos. 1/Sri Ram
Naik Misra(nknk) paternal grandfather, and
appellant no.2, father of minor(s) Kr.
4 All. Ram Naik Misra & Anr. Vs. Km. Gauri & Ors.
1017
Gauri and Master Prakhar, also filed a
Civil Misc. Case No. 72 of 2010 for
appointing the guardian of minor children
namely Ms. Gauri Misra and Master
Prakhar
Misra.
Thereafter,
Principal
Judge Family Court, Sultanpur clubbed
both the cases together and decided by its
order dated 11.04.2018, whereby allowing
the Civil Misc. Case No. 68 of 2009 filed
by Sri Satish Chandra Misra and directed
that custody of minor children namely
Ms. Gauri Misra and Master Prakhar
Misra, be given to their maternal grand
father (ukuk) Sri Satish Chandra Misra and
dismissed the Civil Misc. Case No. 72 of
2010 filed by appellants.

6. The judgment and order dated
11.04.2018 passed by Principal Judge,
Family Court, Sultanpur is in issue.

7. Sri Prabhat Kumar, learned
Counsel for the appellants challenging the
judgment and order dated 11.04.2018
submitted that in the present case, father
being the natural guardian of the minor
children namely Ms. Gauri Misra and
Master Prakhar Misra, custody shall be
given to him, however, ignoring the said
fact, the court below has dismissed the
case of appellants. He further submitted
that since 2007 both the children are
living with their maternal grand father
(ukuk) Sri Satish Chandra Misra and both
the children have been influenced by
maternal grand father (ukuk) Sri Satish
Chandra Misra and this fact has not been
considered by the court below and in an
arbitrary and illegal manner the court
below has passed the order dated
11.04.2018 which is liable to be set aside.
In support of his submission he has placed
reliance on the judgment of Hon'ble Apex
Court in the case of Tejaswini Gaud and
Others Versus Shekhar Jagdish Prasad
Tewari and Others in Criminal Appeal
No. 838 of 2019. The relevant paragraph
nos. 34 to 36 are quoted below:-

"34.This Court inSurinder Kaur
Sandhu
case[Surinder
Kaur
Sandhuv.Harbax Singh Sandhu, (1984) 3
SCC 698 : 1984 SCC (Cri) 464] was
concerned with the custody of a child who
was British citizen by birth whose parents
had been settled in England after their
marriage. The child was removed by the
husband from the house and was brought
to India. The wife obtained a judicial
order from the UK court whereby the
husband was directed to hand over the
custody of the child to her. The said order
was later confirmed by the court of
England and thereafter the wife came to
India and filed a writ petition in the High
Court of Punjab and Haryana praying for
custody and production of the child which
came to be dismissed against which the
wife appealed to this Court. This Court
keeping in view the "welfare of the child",
"comity of courts" and "jurisdiction of the
State which has most intimate contact
with the issues arising in the case" held
thus:
(Surinder
Kaur
Sandhu
case[Surinder
Kaur
Sandhuv.Harbax
Singh Sandhu, (1984) 3 SCC 698 : 1984
SCC (Cri) 464] , SCC pp. 702-03, para
10)

"10. We may add that the
spouses had set up their matrimonial
home in England where the wife was
working as a clerk and the husband as a
bus driver. The boy is a British citizen,
having been born in England, and he
holds a British passport. It cannot be
controverted that, in these circumstances,
the English Court had jurisdiction to
decide the question of his custody. The
modern theory of Conflict of Laws
recognises and, in any event, prefers the
1018 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction of the State which has the
most intimate contact with the issues
arising in the case. Jurisdiction is not
attracted by the operation or creation of
fortuitous circumstances such as the
circumstance as to where the child, whose
custody is in issue, is brought or for the
time
being
lodged.
To
allow
the
assumption of jurisdiction by another
State in such circumstances will only
result in encouraging forum-shopping.
Ordinarily, jurisdiction must follow upon
functional lines. That is to say, for
example, that in matters relating to
matrimony and custody, the law of that
place must govern which has the closest
concern with the well-being of the spouses
and the welfare of the offspring of
marriage. The spouses in this case had
made England their home where this boy
was born to them. The father cannot
deprive
the
English
Court
of
its
jurisdiction to decide upon his custody by
removing him to India, not in the normal
movement of the matrimonial home but,
by an act which was gravely detrimental
to the peace of that home. The fact that
the matrimonial home of the spouses was
in England, establishes sufficient contacts
or ties with that State in order to make it
reasonable and just for the courts of that
State to assume jurisdiction to enforce
obligations which were incurred therein
by the spouses. (SeeInternational Shoe
Co.v.State of Washington[International
Shoe Co.v.State of Washington, 1945 SCC
OnLine US SC 158 : 90 L Ed 95 : 326 US
310
(1945)]
,
which
was
not
a
matrimonial case but which is regarded
as the fountainhead of the subsequent
developments of jurisdictional issues like
the one involved in the instant case.) It is
our duty and function to protect the wife
against the burden of litigating in an
inconvenient forum which she and her
husband had left voluntarily in order to
make their living in England, where they
gave birth to this unfortunate boy."

35.InElizabeth
Dinshaw
case[Elizabeth
Dinshawv.Arvand
M.
Dinshaw, (1987) 1 SCC 42 : 1987 SCC
(Cri) 13] , this Court held that it is the
duty of courts in all countries to see that a
parent doing wrong by removing children
out of the country does not gain any
advantage by his or her wrongdoing and
was guided by the factors such as the
longer time spent by the child in the US in
which the child was born and became US
citizen and also the fact that the child has
not taken roots in India and was still not
accustomed and acclimatised to the
conditions and environment obtaining in
the place of his origin in the United States
of America. This Court took note of the
fact that the child's presence in India is
the result of an illegal act of abduction
and the father who is guilty of the said act
cannot claim any advantage by stating
that he has already put the child in some
school in Pune.

36.InV. Ravi Chandran (2)
case[V. Ravi Chandran (2)v.Union of
India, (2010) 1 SCC 174 : (2010) 1 SCC
(Civ) 44] , this Court was concerned with
the custody of the child removed by a
parent from one country to another in
contravention of the orders of the court
where the parties had set up their
matrimonial home. This Court took note
of the English decisions, namely,L.
(Minors) (Wardship: Jurisdiction), In
re[L. (Minors) (Wardship: Jurisdiction),
In re, (1974) 1 WLR 250 : (1974) 1 All ER
913
(CA)]
andMcKeev.McKee[McKeev.McKee,
1951 AC 352] and also noticed the
decision
of
this
Court
inElizabeth
Dinshaw
case[Elizabeth
Dinshawv.Arvand M. Dinshaw, (1987) 1
4 All. Ram Naik Misra & Anr. Vs. Km. Gauri & Ors.
1019
SCC
42
:
1987
SCC
(Cri)
13]
andDhanwanti
Joshiv.Madhav
Unde[Dhanwanti Joshiv.Madhav Unde,
(1998)
1
SCC
112]
keeping
into
consideration the fact that the child was
left with his mother in India for nearly
twelve years, this Court held that it would
not exercise its jurisdiction summarily to
return the child to the US on the ground
that his removal from US in 1984 was
contrary to the orders of the US courts.
The relevant portion is as under: [V. Ravi
Chandran (2) case[V. Ravi Chandran
(2)v.Union of India, (2010) 1 SCC 174 :
(2010) 1 SCC (Civ) 44] , SCC pp. 195-96,
paras 29-30]

"29. While dealing with a case
of custody of a child removed by a parent
from
one
country
to
another
in
contravention of the orders of the court
where the parties had set up their
matrimonial home, the court in the
country to which the child has been
removed must first consider the question
whether the court could conduct an
elaborate enquiry on the question of
custody or by dealing with the matter
summarily order a parent to return
custody of the child to the country from
which the child was removed and all
aspects relating to the child's welfare be
investigated in a court in his own country.
Should the court take a view that an
elaborate enquiry is necessary, obviously
the court is bound to consider the welfare
and happiness of the child as the
paramount consideration and go into all
relevant aspects of welfare of the child
including stability and security, loving
and understanding care and guidance and
full development of the child's character,
personality and talents. While doing so,
the order of a foreign court as to his
custody may be given due weight; the
weight and persuasive effect of a foreign
judgment
must
depend
on
the
circumstances of each case.

30. However, in a case where the
court decides to exercise its jurisdiction
summarily to return the child to his own
country, keeping in view the jurisdiction of the
court in the native country which has the
closest concern and the most intimate contact
with the issues arising in the case, the court
may leave the aspects relating to the welfare of
the child to be investigated by the court in his
own native country as that could be in the best
interests of the child. The indication given
inMcKeev.McKee[McKeev.McKee, 1951 AC
352] that there may be cases in which it is
proper for a court in one jurisdiction to make
an order directing that a child be returned to a
foreign jurisdiction without investigating the
merits of the dispute relating to the care of the
child on the ground that such an order is in the
best interests of the child has been explained
inL. (Minors) (Wardship: Jurisdiction), In re[L.
(Minors) (Wardship: Jurisdiction), In re,
(1974) 1 WLR 250 : (1974) 1 All ER 913 (CA)]
and the said view has been approved by this
Court
inDhanwanti
Joshi[Dhanwanti
Joshiv.Madhav Unde, (1998) 1 SCC 112] .
Similar view taken by the Court of Appeal inH.
(Infants), In re[H. (Infants), In re, (1966) 1
WLR 381 (CA)] has been approved by this
Court
inElizabeth
Dinshaw[Elizabeth
Dinshawv.Arvand M. Dinshaw, (1987) 1 SCC
42 : 1987 SCC (Cri) 13] ."

8. Learned Counsel for the appellant
has also placed reliance on the judgment
reported in (2011) 6 SCC 479 (Ruchi Majoo
Versus Sanjeev Majoo). The relevant
paragraph nos. 72 to 77 are quoted below:-

"72.For a boy so young in
years,
these
and
other
expressions
suggesting a deep-rooted dislike for the
father could arise only because of a
constant hammering of negative feeling in
1020 INDIAN LAW REPORTS ALLAHABAD SERIES
him against his father. This approach and
attitude on the part of the appellant or her
parents can hardly be appreciated. What
the appellant ought to appreciate is that
feeding the minor with such dislike and
despire (sic) for his father does not serve
his interest or his growth as a normal
child.

73.It is important that the minor
has his father's care and guidance, at this
formative and impressionable stage of his
life. Nor can the role of the father in his
upbringing and grooming to face the
realities of life be undermined. It is in that
view important for the child's healthy
growth that we grant to the father
visitation rights; that will enable the two
to stay in touch and share moments of joy,
learning and happiness with each other.
Since the respondent is living in another
continent such contact cannot be for
obvious reasons as frequent as it may
have been if they were in the same city.
But the forbidding distance that separates
the two would get reduced thanks to the
modern
technology
in
telecommunications.

74.The
appellant
has
been
according to the respondent persistently
preventing
even
telephonic
contact
between the father and the son. May be
the son has been so poisoned against him
that he does not evince any interest in the
father. Be that as it may telephonic
contact shall not be prevented by the
appellant for any reason whatsoever and
shall be encouraged at all reasonable
time. Videoconferencing may also be
possible between the two which too shall
not only be permitted but encouraged by
the appellant.

75.Besides, the father shall be
free to visit the minor in India at any time
of the year and meet him for two hours on
a daily basis, unhindered by any
impediment from the mother or her
parents or anyone else for that matter.
The place where the meeting can take
place shall be indicated by the trial court
after verifying the convenience of both the
parties in this regard. The trial court shall
pass necessary orders in this regard
without delay and without permitting any
dilatory tactics in the matter.

76.For the vacations in summer,
spring and winter the respondent shall be
allowed to take the minor with him for
night stay for a period of one week
initially and for longer periods in later
years, subject to the respondent getting
the itinerary in this regard approved from
the Guardians and Wards Court. The
respondent shall also be free to take the
minor out of Delhi subject to the same
condition. The respondent shall for that
purpose be given the temporary custody
of the minor in presence of the trial court,
on any working day on the application of
the respondent. Return of the minor to the
appellant shall also be accordingly before
the trial court on a date to be fixed by the
court for that purpose.

77.The above directions are
subject
to
the
condition
that
the
respondent does not remove the child
from the jurisdiction of this Court pending
final disposal of the application for grant
of custody by the Guardians and Wards
Court, Delhi. We make it clear that within
the broad parameters of the directions
regarding
visitation
rights
of
the
respondent, the parties shall be free to
seek further directions from the court
seized of the guardianship proceedings;
to take care of any difficulties that may
arise in the actual implementation of this
order."

9. On the basis of above referred
judgments, Sri Prabhat Kumar, learned
4 All. Ram Naik Misra & Anr. Vs. Km. Gauri & Ors.
1021
Counsel for the appellant submitted that
father Sri Ram Shanker Misra, is entitled
to take custody of his minor children and
the judgment and order dated 11.04.2018,
under appeal, is liable to be set-aside.

10. In rebuttal, Sri Ramakar Shukla,
learned Counsel for the respondent,
supporting the judgment and order dated
11.04.2018
passed
Principal
Judge,
Family Court, Sultanpur, submitted that
judgment and order, under appeal, is legal
has been and passed in accordance with
law. He further submitted that mother of
the minor children committed suicide in
the year 2007 i.e. on 02.04.2007 and died
on 09.04.2007. Demand of dowry by the
appellants was the cause of committing
suicide. Since 2007 both the children are
living with Sri Satish Chandra Misra
(ukuk). On 10.04.2007 Sri Satish Chandra
Misra, lodged an F.I.R. under Sections
304B/498A and 3/4 Dowry Prohibition
Act against the appellants. Maternal grand
father of the children Sri Satish Chandra
Misra (ukuk) is giving proper care and
eduction to the children. Learned Counsel
for the respondent further submitted that
against the acquittal order of appellants,
an appeal bearing Criminal Appeal No.
1351 of 2011, has been filed, which is
pending before this Court. Learned
Counsel for the respondent also submitted
that the father of the children Ram
Shanker
Misra
has
remarried
and
thereafter litigation between him and his
second
wife
is
pending
under
consideration before the competent court.
In such circumstances if the custody of
the minor children has been given to their
father, the future of children would
suffer/hamper and therefore, the appeals
under consideration are liable to be
dismissed.

11. In rebuttal, Sri Prabhat Kumar,
learned
Counsel
for
the
appellant
submitted that remarriage of the appellant
cannot be a ground for denying the
custody of minor children. In support of
his submission he has placed reliance on
the judgment reported in (2006) 13 SCC
555 (Lekha Versus P.Anil Kumar). The
relevant paragraph nos. 19 to 23 are
quoted below:-

"19.The law permits a person to
have the custody of his minor child. The
father ought to be the guardian of the
person and property of the minor under
ordinary circumstances. The fact that the
mother has married again after the
divorce of her first husband is no ground
for depriving the mother of her parental
right of custody. In cases like the present
one, the mother may have shortcomings
but that does not imply that she is not
deserving of the solace and custody of her
child. If the court forms the impression
that the mother is a normal and
independent young woman and shows no
indication of imbalance of mind in her,
then in the end the custody of the minor
child should not be refused to her or else
we would be really assenting to the
proposition that a second marriage
involving a mother per se will operate
adversely to a claim of a mother for the
custody of her minor child. We are
fortified in this view by the authority of
the Madras High Court inS. Soora
Reddiv.S. Chenna Reddi[AIR 1950 Mad
306 : (1950) 1 MLJ 33] where Govinda
Menon and Basheer Ahmed Syed, JJ. have
clearly laid down that the father ought to
be a guardian of the person and property
of
the
minor
under
ordinary
circumstances and the fact that a Hindu
father has married a second wife is no
1022 INDIAN LAW REPORTS ALLAHABAD SERIES
ground whatever for depriving him of his
parental right of custody.

20.A man in his social capacity
may be reckless or eccentric in certain
respects and others may even develop a
considerable distaste for his company
with some justification but all that is a far
cry from unfitness to have the natural
solace of the company of one's own
children or for the duty of bringing them
up in proper manner. Needless to say the
respondent husband, in this case, seems to
be anxious to have the minor child with
him as early as possible in order to look
after him properly and to provide for his
future education. The feelings being what
they are between the respondent and the
appellant we think it is also natural on the
part of the husband to feel that if the
minor child continues to live with his
former wife, it may be brought up to hate
the father or to have a very adverse
impression about him. This certainly is
not desirable. Needless to say, this Court
is not called upon to find that the
respondent husband has been entirely
blameless in his conduct and few
occasions referred to in this case and by
the boy at the time of interview, it is not
the duty of this Court even to ascertain
whether the respondent is a responsible
and good citizen and a preferred
individual.
Many
people
have
shortcomings but that does not imply that
they are not deserving of the solace and
custody of their children.

21.However, in the present case,
we have to decide in the interest of the
child as to who would be in a better
position to look after the child's welfare
and interest. The general view that the
courts have taken is that the interest and
welfare of the child is paramount. While it
is no doubt true that under the Hindu law,
the father is the natural guardian of a
minor after the age of six years, the court
while considering the grant of custody of
the minor to him has to take into account
other factors as well, such as the capacity
of the father to look after the child's needs
and to arrange for his upbringing. It also
has to be seen whether in view of his
other commitments, the father is in any
position to give personal attention to the
child's overall development.

22.As indicated hereinbefore,
we have spoken to the child who, in our
view, is intelligent and appears to be
capable of expressing his preference. In
fact, he has in no uncertain terms
indicated his desire to stay with his
mother. His mother's second marriage,
instead of proving to be a disadvantage,
has proved to be beneficial for the child
who seems to be happy and contented in
his present situation and we do not think
it would be right to unsettle the same.

23.The High Court committed a
grave error in not ascertaining the wishes
of the minor, which has consistently been
held by the courts to be of relevance in
deciding grant of custody of minor
children. We are, therefore, inclined to
restore the order passed by the Family
Court and to give custody of the minor
boy to his mother, but as indicated
hereinbefore, we do not want the child to
grow up without knowing the love and
affection of his natural father who too has
a right to help in the child's upbringing.
We are of the view that although the
custody of the minor child is being given
to the mother, the child should also get
sufficient exposure to his natural father
and
accordingly,
we
permit
the
respondent to have custody of the child
from the appellant during Onam and
other important festivals and during the
school vacation. We make it clear that the
appellant mother shall hand over the
4 All. Ram Naik Misra & Anr. Vs. Km. Gauri & Ors.
1023
child to the respondent father during
every mid-summer vacation for about a
month without adversely affecting the
child's education. The appellant should
not also prevent the respondent father
from coming to see the child during
weekends and the appellant should make
necessary
arrangements
for
the
respondent to meet his child on such
occasions. The appellant should not also
prevent the child from receiving any gift
that may be given by the respondent
father to the child."

12. We have considered the
submissions of learned Counsel for the
parties and perused the records. We find
that in the case of Tejaswini Gaud
(Supra), the Hon'ble Apex Court has held
as under:-

"24.In Sarita Sharma[Sarita
Sharmav.Sushil Sharma, (2000) 3 SCC 14
: 2000 SCC (Cri) 568] , the tussle over
the custody of two minor children was
between their separated mother and
father. The Family Court of USA while
passing the decree of divorce gave
custody rights to the father. When the
mother flew to India with the children, the
father approached the High Court by
filing a habeas corpus petition. The High
Court directed the mother to hand over
the custody to the father. The Supreme
Court in appeal observed that the High
Court should instead of allowing the
habeas corpus petition should have
directed the parties to initiate appropriate
proceedings wherein a thorough enquiry
into the interest of children could be
made.

25.In
the
recent
decision
inLahari
Sakhamuri[Lahari
Sakhamuriv.Sobhan Kodali, (2019) 7 SCC
311 : (2019) 5 Scale 97] , this Court
referred to all the judgments regarding
the custody of the minor children when
the parents are non-residents (NRI). We
have referred to the above judgments
relating to custody of the child removed
from foreign country and brought to India
for the sake of completion and to point out
that there is a significant difference
insofar the children removed from foreign
countries and brought into India.

Welfare of the minor child is
the paramount consideration

26.The court while deciding the
child custody cases is not bound by the
mere legal right of the parent or
guardian. Though the provisions of the
special statutes govern the rights of the
parents or guardians, but the welfare of
the minor is the supreme consideration in
cases concerning custody of the minor
child. The paramount consideration for
the court ought to be child interest and
welfare of the child.

27.After referring to number of
judgments and observing that while
dealing with child custody cases, the
paramount consideration should be the
welfare of the child and due weight
should be given to child's ordinary
comfort, contentment, health, education,
intellectual development and favourable
surroundings, inNil Ratan Kundu[Nil
Ratan Kunduv.Abhijit Kundu, (2008) 9
SCC 413] , it was held as under: (SCC
pp. 427-28, paras 49-52)

"49.
InGoverdhan
Lalv.Gajendra
Kumar[Goverdhan
Lalv.Gajendra Kumar, 2001 SCC OnLine
Raj 177 : AIR 2002 Raj 148] , the High
Court observed that it is true that the
father is a natural guardian of a minor
child and therefore has a preferential
right to claim the custody of his son, but
in matters concerning the custody of a
minor child, the paramount consideration
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
is the welfare of the minor and not the
legal right of a particular party. Section 6
of the 1956 Act cannot supersede the
dominant consideration as to what is
conducive to the welfare of the minor
child. It was also observed that keeping in
mind the welfare of the child as the sole
consideration, it would be proper to find
out the wishes of the child as to with
whom he or she wants to live.

50.
Again,
inM.K.
Hari
Govindanv.A.R.
Rajaram[M.K.
Hari
Govindanv.A.R. Rajaram, 2003 SCC
OnLine Mad 48 : AIR 2003 Mad 315] ,
the Court held that custody cases cannot
be decided on documents, oral evidence
or
precedents
without
reference
to
"human touch". The human touch is the
primary one for the welfare of the minor
since the other materials may be created
either by the parties themselves or on the
advice
of
counsel
to
suit
their
convenience.

51. InKamla Deviv.State of
H.P.[Kamla Deviv.State of H.P., 1986
SCC OnLine HP 10 : AIR 1987 HP 34]
the Court observed: (SCC OnLine HP
para 13)

''13. ... the Court while deciding
child custody cases in its inherent and
general jurisdiction is not bound by the
mere legal right of the parent or
guardian. Though the provisions of the
special statutes which govern the rights of
the parents or guardians may be taken
into consideration, there is nothing which
can stand in the way of the Court
exercising its parens patriae jurisdiction
arising in such cases giving due weight to
the circumstances such as a child's
ordinary
comfort,
contentment,
intellectual,
moral
and
physical
development, his health, education and
general maintenance and the favourable
surroundings. These cases have to be
decided ultimately on the Court's view of
the best interests of the child whose
welfare requires that he be in custody of
one parent or the other.'

52. In our judgment, the law
relating to custody of a child is fairly well
settled and it is this: in deciding a difficult
and complex question as to the custody of
a minor, a court of law should keep in
mind the relevant statutes and the rights
flowing therefrom. But such cases cannot
be decidedsolelyby interpreting legal
provisions. It is a human problem and is
required to be solved with human touch. A
court while dealing with custody cases, is
neither bound by statutes nor by strict
rules of evidence or procedure nor by
precedents. In selecting proper guardian
of a minor, the paramount consideration
should be the welfare and well being of
the child. In selecting a guardian, the
court
is
exercisingparens
patriaejurisdiction
and
is
expected,naybound, to give due weight to
a child's ordinary comfort, contentment,
health,
education,
intellectual
development
and
favourable
surroundings.
But
over
and
above
physical comforts, moral and ethical
values cannot be ignored. They are
equally, or we may say, even more
important, essential and indispensable
considerations. If the minor is old enough
to form an intelligent preference or
judgment, the court must consider such
preference as well, though the final
decision should rest with the court as to
what is conducive to the welfare of the
minor."

28.Reliance
was
placed
uponGaurav
Nagpal[Gaurav
Nagpalv.Sumedha Nagpal, (2009) 1 SCC
42 : (2009) 1 SCC (Civ) 1] , where the
Supreme Court held as under: (SCC pp.
52 & 57, paras 32 & 50-51)
4 All. Ram Naik Misra & Anr. Vs. Km. Gauri & Ors.
1025

"32. InMcGrath (Infants), In
re[McGrath (Infants), In re, (1893) 1 Ch
143 (CA)] , Lindley, L.J. observed: (Ch p.
148)

''...The dominant matter for the
consideration of the court is the welfare
of the child. But the welfare of the child is
not to be measured by money only nor
merely physical comfort. The word
"welfare" must be taken in its widest
sense. The moral or religious welfare of
the child must be considered as well as its
physical well being. Nor can the tie of
affection be disregarded.'

50.
When
the
court
is
confronted with conflicting demands
made by the parents, each time it has to
justify the demands. The court has not
only to look at the issue on legalistic
basis, in such matters human angles are
relevant for deciding those issues. The
court then does not give emphasis on
what the parties say, it has to exercise a
jurisdiction which is aimed at the welfare
of the minor. As observed recently
inMausami
Moitra
Ganguli
case[Mausami Moitra Ganguliv.Jayant
Ganguli, (2008) 7 SCC 673] , the court
has to give due weightage to the child's
ordinary contentment, health, education,
intellectual development and favourable
surroundings but over and above physical
comforts, the moral and ethical values
have also to be noted. They are equal if
not more important than the others.

51. The word "welfare" used in
Section 13 of the Act has to be construed
literally and must be taken in its widest
sense. The moral and ethical welfare of
the child must also weigh with the court
as well as its physical well being. Though
the provisions of the special statutes
which govern the rights of the parents or
guardians
may
be
taken
into
consideration, there is nothing which can
stand in the way of the court exercising
itsparens patriaejurisdiction arising in
such cases.

29.Contending
that
however
legitimate the claims of the parties are,
they are subject to the interest and
welfare of the child, inRosy Jacob[Rosy
Jacobv.Jacob A. Chakramakkal, (1973) 1
SCC 840] , this Court has observed that:
(SCC pp. 847 & 855, paras 7 & 15)

"7. ... the principle on which the
Court should decide the fitness of the
guardian mainly depends on two factors:
(i) the father's fitness or otherwise to be
the guardian, and (ii) the interests of the
minors.

15. ... The children are not mere
chattels: nor are they mere play-things for
their parents. Absolute right of parents
over the destinies and the lives of their
children has, in the modern changed
social
conditions,
yielded
to
the
considerations of their welfare as human
beings so that they may grow up in a
normal balanced manner to be useful
members of the society and the guardian
court in case of a dispute between the
mother and the father, is expected to
strike a just and proper balance between
the requirements of welfare of the minor
children and the rights of their respective
parents over them. The approach of the
learned Single Judge, in our view, was
correct and we agree with him. The
Letters Patent Bench on appeal seems to
us
to
have
erred
[Jacob
A.
Chakramakkalv.Rosy J. Chakramakkal,
1972 SCC OnLine Mad 90 : (1972) 85
LW 844] in reversing him on grounds
which we are unable to appreciate."

30.The learned counsel for the
appellants has placed reliance uponG.
Eva Mary Elezabath[G. Eva Mary
Elezabathv.Jayaraj, 2005 SCC OnLine
Mad 472 : AIR 2005 Mad 452] where the
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
custody of the minor child aged one
month who had been abandoned by father
in church premises immediately on death
of his wife was in question. The custody of
the child was accordingly handed over to
the petitioner thereon who took care of
the child for two and half years by the
Pastor of the Church. The father snatched
the child after two and a half years from
the custody of the petitioner. The father of
the child who has abandoned the child
though a natural guardian therefore was
declined the custody."

13. In order to decide the present
controversy, we feel it appropriate that the
willingness of the children, who are
minor, should also be considered and on a
query being made by this Court the minor
Ms. Gauri Misra, aged about 15 years,
stated before us that at present she is
studying in Class XI in Gopal Public
Senior Secondary School in Science
stream and she want to become a Doctor
and she has secured 86% marks in High
School Examination. We further asked to
her that whether she want to live with her
father or with her maternal grand father
Sri Satish Chandra Misra. In response, she
said that she want to live with her
maternal grand father Sri Satish Chandra
Misra, who has given proper care and
education and she does not want to live
with her father Ram Shanker Misra. We
also put a query to the second minor child
Master Prakhar Misra, aged about 13
years, that whether he wants to live with
his father or maternal grand father Sri
Satish Chandra Misra and in response
Master Prakhar Misra, told that he is
studying in Class VII in Raghukul
Academy English Medium, Lambhua,
Sultanpur and he is fond of playing
cricket and he wants to live with his
maternal grand father Sri Satish Chandra
Misra, who has given proper care and
education.
Both
the
children
also
categorically stated before us that the
"Nana" is taking all sort of care.

14. The admitted facts of the case
are that marriage between appellant Ram
Shanker Misra and Moni Misra was
solemnized in the year 2002 and out of
the wedlock of appellant and Moni Misra
, two children were born namely Ms.
Gauri Misra and Master Prakhar Misra.
Matrimonial
relation
between
the
appellant no.2/Ram Shanker Misra and
Moni Misra has become strained and on
02.04.2007 Moni Misra tried to commit
suicide and died at K.G.M.C. Lucknow on
09.04.2007. Since the date of death of
Moni Misra, Km.. Gauri Misra and
Master Prakhar Misra are under the
custody of their maternal grandfather
(ukuk) Sri Satish Chandra Misra.