# Smt. Komal v. Arvind Kumar 548 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2019) 4 ILRA 547
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-23
- **Case number:** First Appeal No. 739 of 2017
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-komal-v-arvind-kumar-548-indian-law-reports-allahabad-series-45015
- **Pages:** 8

## Headnote

Family & Personal Law - Guardians and
Wards Act (8 of 1890)-Section 25 -
Custody of child to father - paramount
interest of minor is the primary criteria
for deciding custody and guardianship of
a minor - even a natural guardian can be
denied custody of minor child for good
and compelling reasons. (Para 10)

Appellant - Mother admitted that she is not
having any independent source of income &
that she cannot bear expenses of schools in
which minor children are studying - no dispute
that
respondent-father
having
sufficient
income to meet expenses of minor children -
court below held conversation with minor
children - both children categorically stated
that they wish to stay with their father -
sufficient and compelling circumstances permit
continuance of custody of minor children with
their father as their interest is best protected
in the company of their father

First Appeal dismissed. (E-5)

List of cases cited: -

## Text

4 All. Smt. Komal Vs. Arvind Kumar
547
by two units for every five years, that is,
M-11 for 51 to 55 years, M-9 for 56 to 60
years, M-7 for 61 to 65 years and M-5 for
66 to 70 years."

7. It is clear from the above
observation that between the age of 26 to
30, the available multiplier is 17. This has
further been affirmed on the point of
multiplier by the Hon'ble Apex Court in
the
case
of
National
Insurance
Company vs. Pranay Sethi & others,
AIR 2017 SC 5157. The learned Tribunal
has determined the age of the deceased to
be 27 years, hence, the multiplier of 17
has correctly been used. Applying the
multiplier of 17, the amount of Rs.
20000/- yearly comes to a total amount of
Rs. 340000/-.

8. In Sarla Verma (supra), it has
been held by the Supreme Court that a
proceeding before the Tribunal is in the
nature of inquiry in which a very few
thing is required to be established. The
Court has observed as under :-

"Basically only three facts need
to be established by the claimants for
assessing compensation in the case of
death: (a) age of the deceased; (b) income
of the deceased; and the (c) the number of
dependents. The issues to be determined
by the Tribunal to arrive at the loss of
dependency are (i) additions/deductions
to be made for arriving at the income; (ii)
the deduction to be made towards the
personal living expenses of the deceased;
and (iii) the multiplier to be applied with
reference of the age of the deceased."

9. The amount of expenses for
treatment was established on the basis of
medical bills etc. for a sum of Rs.
1,58,027/- and adding the amount under
conventional head, the total amount which
was determined by the learned Tribunal
was Rs. 5,05,000/-. As such, the amount
cannot be said to be in the higher side and
if the principle laid down in Sarla Verma
(supra) and Pranay Sethi (supra) are
made
applicable,
the
amount
of
compensation must have been much
more, therefore, there is no reason for the
appellant to be aggrieved as amount of
compensation is much in lower side.

10. In view of the above, I do not
find any force in the appeal and the appeal
is liable to be dismissed.

11. Accordingly, the appeal is
dismissed. Interim order, if any, stands
vacated.

12. The office is directed to send
back the lower court record with the
certified copy of this judgment to the
Tribunal concerned for information and
necessary compliance.

13. The amount of Rs. 25000/-
deposited at the time of filing of appeal be
remitted back to the learned Tribunal to
be adjusted against the awarded amount.
----------

(2019)12 ILR A547

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.10.2019

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

First Appeal No. 739 of 2017

Smt. Komal ...Appellant
Versus
Arvind Kumar ...Respondent
548 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Sudhir Kumar Chandraul, Sri Krishna
Manohar Tiwari, Smt. Priya Tiwari

Counsel for the Respondent:
Sri Mahesh Sharma, Sri Sharad Sinha

Family & Personal Law - Guardians and
Wards Act (8 of 1890)-Section 25 -
Custody of child to father - paramount
interest of minor is the primary criteria
for deciding custody and guardianship of
a minor - even a natural guardian can be
denied custody of minor child for good
and compelling reasons. (Para 10)

Appellant - Mother admitted that she is not
having any independent source of income &
that she cannot bear expenses of schools in
which minor children are studying - no dispute
that
respondent-father
having
sufficient
income to meet expenses of minor children -
court below held conversation with minor
children - both children categorically stated
that they wish to stay with their father -
sufficient and compelling circumstances permit
continuance of custody of minor children with
their father as their interest is best protected
in the company of their father

First Appeal dismissed. (E-5)

List of cases cited: -

1. Mritunjay Vs. Hari Shankar Dixit First Appeal
Defective No. 138 of 2019, 8.7.2019

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

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

1. Challenge in this appeal under
section 47 of Guardian and Wards Act,
1890 (hereinafter referred to as 'Act,
1890'), wrongly mentioned as Section 19
Family Court Act, 1984 is to judgement
dated 1.5.2017, passed by Principal
Judge, Family Court, Baghpat, in Misc.
Case No. 01 of 2013 (Smt. Komal Vs.
Arvind Kumar), under section 25 of Act
1890 whereby claim of plaintiff mother
for custody of her minor children has
been rejected.

2. We have heard Mr. Krishna
Mohan Tiwari, learned counsel for
appellant and Mr. Mahesh Sharma,
learned counsel for respondent.

3. It transpires from record that
marriage of appellant was solemnized
with
respondent
Arvind
Kumar
on
22.2.1999 in accordance with Hindu Rites
and Customs. After marriage, appellant
came to her matrimonial home and
discharged
her
espousal
obligations.
Inspite of aforesaid, respondent and his
family members did not extend love and
affection to appellant. Their conduct
towards appellant was vindictive and
aspersions were cast upon her for not
bringing
sufficient
dowry.
The
matrimonial bond however continued and
from
wedlock
of
appellant
and
respondent, a daughter namely, Chavi and
a son namely, Nakul were born. It is
alleged by appellant that respondent was a
drunkard and under spell of intoxication,
used to assault and abuse appellant.
Ultimately, appellant alleges to have been
ousted from her matrimonial home on
16.2.2010 but custody of minor children
was
retained
by
respondent.
Apprehending damage to the personality
of her minor children on account of bad
habits of respondents and further that they
may not come up with strong moral
character, coupled with refusal on part of
respondent to hand over custody of minor
children, appellant filed Suit No. 01 of
2013 (Smt. Komal Vs. Arvind Kumar)
under section 25 of Act, 1890, claiming
custody of her minor children. It was also
pleaded by appellant that respondent is
not paying required interest for welfare of
4 All. Smt. Komal Vs. Arvind Kumar
549
minor children. They are unable to study
properly. The minor daughter of appellant
is being looked after by her grand mother.
As appellant is capable of looking after
her minor children and also a natural
guardian of minor children, therefore,
their custody be given to appellant.

4. Suit filed by appellant was
contested by defendant respondent by
filing a written statement whereby not
only plaint allegations were denied but
also additional pleas were raised. It was
pleaded by respondent that appellant is
incapable
of
meeting
educational
expenses of minor children as she herself
has filed case No. 69 of 2011 under
Protection of Women from Domestic
Violence Act, 2005 (hereinafter referred
to as 'Act, 2005') wherein she has claimed
interim maintenance on account of
financial constraints Appellant has also
filed a case under section 125 Cr.P.C. in
the competent Court at Muzaffarnagar for
payment of maintenance. Minor son
Nakul is studying in Class-XI at, Diwan
Public School, which is one of the best
public schools in Meerut. The respondent
is himself bearing expenses of his son.
The Phupha and Buwa of minor have
been appointed as guardian, as they are
working
in
Meerut.
Photocopy
of
certificate showing payment of fees was
filed in evidence to support the same. In
respect of minor daughter Chavi, it was
pleaded that she is studying in Class-V at
C.B.S.M Public School. The respondent is
bearing her educational expenses. The
minor daughter is being looked after by
respondent
along
with
his
parents.
Photocopy
of
fees
card
pertaining
daughter, Chavi, was also filed in
evidence.
It
was
then
urged
that
respondents is looking after his minor
children to the best of his ability and
means, they are receiving good education.
Appellant is living separately, since
16.2.2010, without any reason. Appellant
is unable to sustain herself and to get the
amount of maintenance enhanced, she has
filed application for custody of minor
children
to
exert
pressure
upon
respondent. On the aforesaid pleas, it was
submitted
that
application
filed
by
appellant for custody of minor children is
liable to be rejected.

5. After the pleadings
were
exchanged, parties went to trial. Appellant
in support of her claim, filed her own
affidavit, whereas respondents in support
of his defence, filed his affidavit. Upon
consideration of pleadings adduced by
parties and material filed by them in
support of their respective case, Court
below opined that only single point of
determination is involved i.e. "in whose
custody, the interest of minor children
would be best protected".

6. Court below, upon evaluation of
material on record and also in view of the
dialogue with minor children as they were
of tender age, arrived at the conclusion
that interest of minors is best protected in
the custody of their father i.e. respondent.
Accordingly, Court below vide order
dated 1.5.2017 rejected application filed
by appellant under section 25 of Act
1890, claiming custody of her minor
children. Feeling aggrieved by aforesaid
judgement, appellant has now come to
this Court, by means of present first
appeal.

7. Mr. Krishna Manohar Tiwari,
learned counsel for appellant, in challenge
to impugned judgement, submitted that
impugned judgement passed by Court
below, is unsustainable in law and fact.
550 INDIAN LAW REPORTS ALLAHABAD SERIES
Consequently, the same is liable to be set
aside by this Court. Elaborating his
submission, he submits that from the
wedlock of appellant and respondent, two
children were born, namely, a son and
daughter. At the time of presentation of
petition, under section 25 of Act, 1890,
both the children were of tender age i.e. 8
and 6 years respectively. It is well settled
that when children are of tender age, they
should be in custody of their mother. It
was then submitted that in respect of
minor daughter, mother is the best
guardian and her custody should remain
with mother till she reaches the age of
pubetry. Court below, while passing
impugned judgement and order has failed
to consider aforesaid aspects of the matter
which
has
vitiated
the
impugned
judgement. It is thus urged that impugned
judgement passed by Court below, is
liable to be set aside.

8. Mr. Mahesh Sharma, learned
counsel for respondent, on the other hand
has
supported
impugned
judgement.
According
to
learned
counsel
for
respondent, Court below has passed a just
and reasonable order which is not liable to
be interfered with. Court below has taken
into consideration the paramount interest of
minor children and in line with aforesaid
principle, held that interest of minor
children is best protected in custody of their
father. Court below was aware of the fact
that minor children are of tender age,
therefore, Court itself held conversation
with minor children to ascertain their
willingness regarding their stay with either
of the parents. As such, both on facts and
law, no fault can be attributed to the order
passed by Court below.

9. Before proceeding to evaluate the
rival submissions
made by
learned
counsel
for
parties,
it
would
be
appropriate to reproduce section 25 of
Act, 1890:

""25. Title of guardian to
custody of ward.--(1) If a ward leaves or
is removed from the custody of a guardian
of his person, the Court, if it is of opinion
that it will be for the welfare of the ward
to return to the custody of his guardian,
may make an order for his return and for
the purpose of enforcing the order may
cause the ward to be arrested and to be
delivered into the custody of the guardian.

(2) For the purpose of
arresting the ward, the Court may
exercise the power conferred on a
Magistrate of the first class by section
100 of the Code of Criminal Procedure,
1882 (10 of 1882).

(3) The residence of a ward
against the will of his guardian with a
person who is not his guardian does not
of itself terminate the guardianship.

10. From the perusal of Section 25
of Act 1890 it is apparent that there are no
directions contained in the section itself in
accordance with which application for
guardianship
and
custody
shall
be
decided. However, as law has developed
on the subject concerned, it is well
crystallized that paramount interest of
minor is the primary criteria for deciding
custody and guardianship of a minor.
Apart from above, it is now further
established that a minor who is below five
years of age, shall ordinarily be allowed
to stay with mother. Similarly in case of
minor girls, it has been the consistent
view that their custody should remain
with mother till they attain age of
majority. It shall be useful to refer to a
Division Bench judgement of this Court
in First Appeal Defective No. 138 of
4 All. Smt. Komal Vs. Arvind Kumar
551
2019 (Mritunjay Vs. Hari Shankar
Dixit) decided on 8.7.2019. In paragraphs
7, 8, 9, 10 and 11 Court has said as under:

"7.
While
determining
the
question of custody of a minor child, the
first and the paramount consideration is
the welfare and interest of the child and
not the rights of the parents under a
statute.

8. In Mausami Moitra Ganguli
v. Jayant Ganguli (2008) 7 SCC 673, it
has been held that the principles of law in
relation to the custody of a minor child
are well settled. While determining the
question as to which parent the care and
control of a child should be committed,
the first and the paramount consideration
is the welfare and interest of the child and
not the rights of the parents under a
statute.

9. In the above case, a passage
from Halsbury's Laws of England (4th
Edn., Vol. 13) was reproduced which
reads as under:

"809. Principles as to custody
and upbringing of minors.- Where in any
proceedings before any court, the custody
or upbringing of a minor is in question,
the court, in deciding that question, must
regard the welfare of the minor as the
first and paramount consideration, and
must not take into consideration whether
from any other point of view the claim of
the father in respect of such custody or
upbringing is superior to that of the
mother, or the claim of the mother is
superior to that of the father. In relation
to the custody or upbringing of a minor, a
mother has the same rights and authority
as the law allows to a father, and the
rights and authority of mother and father
are equal and are exercisable by either
without the other."

10. Earlier, Apex Court in Rosy
Jacob v. Jacob A. Chakramakkal (1973) 1
SCC 840, ruled that the children are not
mere chattels, nor are they mere
playthings 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.

11.
Following
the
above
authorities,
in
Santhini
Vs.
Vijaya
Venketesh (2018) 1 SCC 1 Court
expressed the same view holding as
under:

"It is to be borne in mind that in
a matter relating to the custody of the
child, the welfare of the child is
paramount
and
seminal.
It
is
inconceivable to ignore its importance
and treat it as secondary. The interest of
the child in all circumstances remains
vital and the Court has a very affirmative
role in that regard. Having regard to the
nature of the interest of the child, the role
of the Court is extremely sensitive and it
is expected of the Court to be pro-active
and sensibly objective." (emphasis added)
"

11. Supreme Court in Lekha Vs. P.
Anil Kumar 2006 (13) SCC 555, had
dealt
with
the
issue
regarding
guardianship and custody of minor under
section 25 of Act 1890 and observed as
follows in paragraphs 15, 16, 17 and 19:

"15. Sk. Moidin v. Kunhadevi
[AIR 1929 Mad 33 (FB)] was a case of a
father, a motor driver, applying for writ
of habeas corpus to get custody of his 7year-aged child. Nobody was available in
his house to look after such child. The
552 INDIAN LAW REPORTS ALLAHABAD SERIES
Full Bench held that the Court has to look
to an application under habeas corpus in
the interest of the child as being
paramount. The Court held that prima
facie in the eye of the law, the father is the
natural guardian and custodian of the
person of his child. But it has been the
law for a very long time both in England
and in this country that what a court has
to look to on applications under habeas
corpus is the interest of the child as being
paramount.

16. In Samuel Stephen Richard
v. Stella Richard [AIR 1955 Mad 451 : 56
Cri LJ 1192] the High Court in deciding
the question of custody held as follows:
(AIR p. 452)

"In deciding the question of
custody, the welfare of the minor is the
paramount consideration and the fact that
the father is the natural guardian would
not ''ipso facto' entitle him to custody. The
principal considerations or tests which
have been laid down under Section 17, in
order to secure this welfare, are equally
applicable in considering the welfare of
the minor under Section 25.

The application of these tests
casts an ''arduous' duty on the court.
Amongst the many and multifarious duties
that a Judge in Chambers performs by far
the most onerous duties are those cast
upon him by the Guardians and Wards
Act. He should place himself in the
position of a wise father and be not tired
of the worries which may be occasioned
to him in selecting a guardian best fitted
to assure the welfare of a minor and
thereafter guide and control the guardian
to ensure the welfare of the ward--a no
mean task but the highest fulfilment of the
dharmasastra of his own country.

It is only an extreme case where
a mother may not have the interest of her
child most dear to her. Since it is the
mother who would have the interest of the
minor most at heart, the tender years of a
child needing the care, protection and
guidance of the most interested person,
the mother has come to be preferred to
others."

17. In Thrity Hoshie Dolikuka v.
Hoshiam Shavaksha Dolikuka [(1982) 2
SCC 544 : AIR 1982 SC 1276] this Court
held as under: (SCC p. 565, para 17)

"17. The principles of law in
relation to the custody of a minor appear
to be well established. It is well settled
that any matter concerning a minor, has
to be considered and decided only from
the point of view of the welfare and
interest of the minor. In dealing with a
matter concerning a minor, the Court has
a special responsibility and it is the duty
of the Court to consider the welfare of the
minor and to protect the minor's interest.
In considering the question of custody of
a minor, the Court has to be guided by the
only consideration of the welfare of the
minor."

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
4 All. Smt. Komal Vs. Arvind Kumar
553
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 in S. Soora Reddi
v. 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 ground
whatever for depriving him of his parental
right of custody." (Emphasis added)

12. Thus from above quoted
observations, it is explicitly clear that
even though father is natural guardian but
simply on that ground he is not entitled to
the custody and guardianship of minor
children.
Courts
while
deciding
guardianship and custody of a minor have
to be guided by observations made by
Court as referred to above. When case in
hand is examined in light of above quoted
observations made by Court, balance tilts
in favour of father i.e. defendantrespondent.

13. From perusal of record, it is
apparent that appellant in her affidavit
clearly admitted that she is not having any
independent source of income hence
unable to sustain herself. As such, she is
dependent upon her father. She further
admitted that she cannot bear expenses of
schools in which minor children are
studying. If custody is granted to her, she
will
claim
their
expenses
from
respondent. Apart from above, there was
no denial of fact that minor children are
studying in good schools at Meerut.
Furthermore, it could not be disputed by
appellant that respondent is having
sufficient income to meet his personal
expenses as well as the expenses of minor
children. It is further evident that since
children were of tender age, court below
before proceeding to decide their custody
held conversation with them and obtained
their desire of stay with father or mother.
Both children categorically stated that
they wish to stay with their father. Having
ascertained the status of parties and
willingness of minor children, Court
below proceeded to decide the question of
custody of minor children as per the
principle "paramount interest of minor".

14. Learned counsel for appellant
could
not
dispute
before
us
that
conclusion
drawn
by
Court
below
regarding financial status of parties,
willingness of children to stay with their
father and paramount interest of children
in facts and circumstances of case are
neither perverse nor erroneous.

15. In view of above, argument
raised by learned counsel for appellant
that since both children were minor and
particularly since daughter had not even
attained the age of puberty, were liable to
be given in custody of their mother, is
wholly misconceived. Law on the subject
now stands crystallized and it has been
held that even a natural guardian can be
denied custody of minor children for good
and compelling reasons. It is established
from record that sufficient and compelling
circumstances exist on record, which
permit continuance of custody of minor
children with their father as their interest
is best protected in the company of their
father.

16. For reasons, given herein above,
we do not find any good ground to
interfere in this appeal. Appeal being
554 INDIAN LAW REPORTS ALLAHABAD SERIES
devoid of merits is liable to be dismissed. It
is accordingly, dismissed. Cost made easy.
----------

(2019)12 ILR A554

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2019

BEFORE
THE HON'BLE PANKAJ MITHAL, J.
THE HON'BLE VIVEK AGARWAL, J.

Writ A No. 8242 of 2019

Jay Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Kamaluddin Khan

Counsel for the Respondents:
C.S.C.

A. Law of Torts - Motor Vehicles Act, 1988
- Section 45 - Power of Registering Officer
to refuse registration - Refusal on ground
of traffic problem in the city is patently
without jurisdiction-power to refuse -
limited to grounds mentioned under
section 45 - if he has reason to believe
that vehicle is stolen or defective-or fails
to comply with requirements of Act-or if
Applicants fails to furnish necessary
particulars - Resolution quashed.

Writ Petition allowed. (E-9)

List of cases cited: -

1. Mohd. Aman and 3 ors vs. St. Of U.P. & 5
ors- Writ A no. 17235 of 2018

(Delivered by Hon'ble Pankaj Mithal, J.
Hon'ble Vivek Agarwal, J.)

1. Heard Sri Kamaluddin Khan,
learned counsel for the petitioners and
learned
Standing
Counsel
for
the
respondents.

2. The petitioners have preferred this
petition so as to challenge the Condition
No.3 of the Resolution No. 1.9 passed on
27.02.2018 in the
meeting
of the
Divisional
Road
Safety
Committee
headed by the Commissioner of the
Division.

3. The aforesaid condition states that
in the district of Meerut, about 1300 valid
registrations have been granted for plying
of the e-rickshaws. Thus looking to the
traffic condition it has been decided not to
grant any further registrations to erickshaws in the district until further
orders.

4. The petitioners are all owners of
e-rickshaws and their e-rickshaws are not
being
registered
by
the
Regional
Transport Authority on the basis of the
aforesaid resolution.

5. The Court while entertaining the
writ
petition
on
being
prima-facie
satisfied that there is no provision under
the Motor Vehicles Act, 1988 which
allows
the
authorities
to
stop
the
registration of any vehicle much less that
of e-rickshaws on the ground of traffic
condition issued an ad-interim mandamus
to the respondents to register e-rickshaws
owned by the petitioners in accordance
with law provided petitioners furnish all
the necessary documents and produce erickshaws before the competent authority
or to show-cause by filing counter
affidavit within 3 weeks.

6. In pursuance to the above interim
direction, neither the e-rickshaws of the
petitioners have been registered despite