HIGH COURT OF CHHATTISGARH

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Single Bench : Honble Mr. Jusice S!n"!# $. Ag!r%!l
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M. A. &o. ''( o) *++,
A--.//A&T Loknath
Versus
R.S-O&0.&T Rukmani Bai
A--.A/ U&0.R S.CTIO& (12C3 OF TH. GUAR0IA&S
A&0 4AR0S ACT5 678+
-resen :
Shri Manoj Paranjpe and Shri Vikram Dixit, learned
counsel for the appellant.
one for the respondent, thou!h ser"ed.

OR0.R
2*9.+8.*+6'3
S!n"!# $. Ag!r%!l5 J.
263 #n"okin! the appellate jurisdiction of this $ourt
under Section %& '$( of the )uardians and *ards +ct, ,-./
' for short 0the +ct, ,-./1( the appellant2father 'Loknath(
has preferred this appeal challen!in! the impu!ned order
dated ,/./3.3//4 passed 56 the $i"il 7ud!e, $lass8#,
Baloda Ba9asr, District : Raipur in )uardians and *ards
$ase o. /323//% 'Rukhmani Bai Vs. Loknath( on the
application under Section 34 of the +ct, ,-./ !rantin!
custod6 of minor male child Poonam Prakash, ;ho ;as
a!ed a5out t;o and a half 6ears.

2*3 <he facts necessar6 for the disposal of this appeal
are as under :
'3.,( <he respondent2mother 'Rukhmani Bai( filed an
application under Section 34 of the +ct, ,-./ seekin!
custod6 of Poonam Prakash statin! inter alia that she
;as married ;ith Loknath in the 6ear ,... and the6
;ere 5lessed ;ith one son Poonam Prakash and one
dau!hter =hilesh;ari. #t ;as further pleaded that the
appellant2father ;as not takin! proper care of
Poonam Prakash and despite the le!al process issued
56 the Su5 Di"isional Ma!istrate 'SDM(, Bilai!arh,
Poonam Prakash ;as not produced 5efore the S.D.M.
'3.3( #t ;as alle!ed that the appellant ;as ill treatin!
her due to demand of do;r6 and she has 5een thro;n
out of the matrimonial house 56 the appellant and
therefore she is residin! separatel6 ;ith her parents
at her parental house. Proceedin!s under Section
%.-8+ is pendin! consideration. Since the
appellant2father is not mana!in! the ;ard properl6 as
;ell as she is depri"ed of her lo"e and affection,
therefore the custod6 of Poonam Prakash 5e !i"en to
her.
2'3 <he present appellant, thou!h ser"ed ;ith a notice,
did not file an6 ;ritten statement 5efore the trial $ourt and
therefore the trial $ourt proceeded, declarin! the appellant
as ex parte. <he appellant neither filed ;ritten statement
nor adduced an6 e"idence in support of his case.
2
2(3 <he respondent2mother examined herself 5efore
the trial $ourt statin! inter alia that the appellant2father is
not takin! proper care of her son Poonam Prakash and
proceedin!s under Section %.-8+ of the #.P.$. is pendin!
a!ainst him and therefore she is entitled for the custod6 of
the ;ard.
2,3 <he trial $ourt "ide its impu!ned order dated
,/./3.3//4 !ranted the application under Section 34 of the
+ct, ,-./ mainl6 on the !round findin! that the e"idence of
the mother has remained uncontro"erted and minor
Poonam Prakash is in need of mother2respondent to look
him after and accordin!l6 directed for !rantin! custod6 of
the child to respondent2mother.
293 Shri Paranjpe, learned counsel appearin! for the
appellant2father ;ould su5mit that since the minor
Poonam Prakash ;as residin! at "illa!e oharpali, <ahsil :
Bilai!arh, District: Raipur and thus the District $ourt,
Raipur had the jurisdiction to entertain an6 such
application under Section 34 of the +ct, ,-./ and certainl6,
not the $i"il $ourt at Baloda Ba9ar. >e alternati"el6
su5mits that e"en other;ise, the trial $ourt has failed to
consider that in the matter of custod6 of minor child the
paramount consideration should 5e the ;elfare of the child.
<he trial $ourt has failed to consider this aspect of ;elfare
of the child ;hile !rantin! the order directin! custod6 of
the child Poonam Prakash to the respondent2mother and
thus the impu!ned order passed 56 the trial $ourt is lia5le
to 5e set aside.
3
213 # ha"e heard learned counsel for the appellant and
considered the su5missions made hereina5o"e and perused
the record of the trial $ourt.
273 Section & of the +ct, ,-./ pro"ides for the po;er of
the $ourt to make order as to !uardianship. Su5 section ',(
of Section & pro"ides that ;here the $ourt is satisfied that
it is for the %el)!re o) ! :inor that an order should 5e
made appointin! a !uardian of his person or propert6 or
5oth or declarin! a person to 5e such a !uardian, the $ourt
ma6 make an order accordin!l6.
283 Section ,& ',( ? '3( and Section 34 of the +ct, ,-./
reads as under :
@,&. M!ers o be consi;ere; b# he Cour in
!<<oining gu!r;i!n.A',( #n appointin! or
declarin! the !uardian of a minor, the $ourt
shall, su5ject to the pro"isions of this section,
5e !uided 56 ;hat, consistentl6 ;ith the la; to
;hich the minor is su5ject, appears in the
circumstances to 5e for he %el)!re o) he
:inor.
'3( #n considerin! ;hat ;ill 5e for the ;elfare of
the minor, the $ourt shall ha"e re!ard to the
a!e, sex and reli!ion of the minor, the character
and capacit6 of the proposed !uardian and his
nearness of kin to the minor the ;ishes, if an6,
of a deceased parent, and an6 existin! or
pre"ious relations of the propose !uardian ;ith
the minor or his propert6.B
@*,. Tile o) gu!r;i!n o cuso;# o) %!r;A',(
#f a ;ard lea"es or is remo"ed from the custod6
of a !uardian of his person, the $ourt, if it is of
opinion that it ;ill 5e for the ;elfare of the ;ard
to return to the custod6 of his !uardian, ma6
make an order for his return and for the
purpose of enforcin! the order ma6 cause the
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;ard to 5e arrested and to 5e deli"ered into the
custod6 of the !uardian.
'3( Cor the purpose of arrestin! the ;ard, the
$ourt ma6 exercise the po;er conferred on a
Ma!istrate of the first class 56 section ,// of
the $ode of $riminal Procedure, ,--3 ',/ of
,.-3(.
'D( <he residence of a ;ard a!ainst the ;ill of
his !uardian ;ith a person ;ho is not his
!uardian does not of itself terminate the
!uardianship.B
26+3 <hus, from a 5are perusal of the pro"isions of
Section ,& read ;ith Section 34',( of the +ct, ,-./, one
thin! is clear that in the matter of custod6 of the child
paramount consideration is ;elfare of the minor and not
the status of the parents or relati"es. <he ;ord 0;elfare1
used in Sections &, ,& and 34 has to 5e construed literall6
and must 5e taken in its ;ider sense.

2663 <he Supreme $ourt in a decision reported in 2*++73
1 SCC 91' 'Mous:i Moir! G!nguli =. J!#!n G!nguli(
has held that it is the ;elfare and interest of the child and
not the ri!hts of the parents ;hich is the determinin!
factor for decidin! the Euestion of custod6. #t ;as the
further held that the Euestion of ;elfare of the child has to
5e considered in the context of the facts of each case and
decided cases on the issue ma6 not 5e appropriate to 5e
considered as 5indin! precedents.
26*3 Fnder Section ,& of the +ct, ,-./ the $ourt is dut6
5ound to find more suita5le person amon!st the ri"al
claimants. <he moral and ethical ;elfare of the child must
also ;ei!h ;ith the court as ;ell as its ph6sical ;ell85ein!.
5
+ Di"ision Bench of this $ourt in *+662'3C.G./.J. 7+ 20B3
'Sh!ilesh $h!n;el%!l >s. Meen!?shi $h!n;el%!l( has
held in para ,D as under :
@,D. Section G of the +ct of ,.4G pro"ides that
the natural !uardian of a >indu minor, in case
of a 5o6 or an unmarried !irl is the father and
after him, the motherH pro"ided that the
custod6 of a minor ;ho has not completed the
a!e of fi"e 6ears shall ordinaril6 5e ;ith the
mother. +s per Section ,D, of the +ct of ,.4G,
in the appointment or declaration of an6
person as !uardian of a >indu minor 56 a
$ourt, the ;elfare of the minor shall 5e the
paramount consideration. Fnder Section ,& of
the +ct of ,-./, the court is under a dut6 to
appoint the most suita5le person amon!st the
ri"al claimants for !uardianship, althou!h a
person ;ho under the personal la; ;ould 5e
entitled to the custod6 of the child in
preference to an6 one else. +s per Section ,&'D(
of the +ct of ,-./H if the minor is old enou!h
to form intelli!ent preference, the court ma6
consider that preference. Scope of Section ,&
of the )uardians and *ards +ct is that the
court has to see ;ho of the se"eral applicants
has a preferential ri!ht to 5e appointed as
!uardian of the minor under the personal la;
keepin! also in "ie; the ;elfare of the minor.
<he court should 5e !uided 56 the sole
consideration of the ;elfare of the minor. B
26'3 <he Supreme $ourt in *+6' AIR 2SC3 6+* 'G!#!ri
B!"!" >s. Jien Bh!ll!( in para ,3 and ,D held as under :
@,3. <he la; relatin! to custod6 of minors has
recei"ed an exhausti"e consideration of this
$ourt in a series of pronouncements. #n
)aura" a!pal V.Sumensha a!pal, 3//. ,
S$$ %3 the principles of In!lish and +merican
la; in this re!ard ;ere considered 56 this
$ourt to hold that the le!al position in #ndia is
not in an6 ;a6 different. oticin! the jud!ment
6
of the Bom5a6 >i!h $ourt in Saras;ati Bai
Shripad Ved ". Shripad Vasanji Ved,,.%,
+#R'Bo(/ ,/DH Ros6 7aco5 ". 7aco5 +
$hakramakkal, ,.&D , S$$ -%/ and <hirt6
>oshie Dolikuka ". >oshiam Sha"daksha
Dolikuka, ,.-3 3 S$$ 4%% this $ourt
e"entuall6 concluded in para!raph 4/ and 4,
that:
4/. <hat ;hen the $ourt is confronted
;ith conflictin! demands made 56 the parents,
each time it has to justif6 the demands. <he
$ourt has not onl6 to look at the issue on
le!alistic 5asis, in such matters human an!les
are rele"ant for decidin! those issues. <he
$ourt then does not !i"e emphasis on ;hat the
parties sa6, it has to exercise a jurisdiction
;hich is aimed at the ;elfare of the minor. +s
o5ser"ed recentl6 in Mousmi Moitra )an!uli1s
case the court has to !i"e due ;ei!hta!e to the
child1s ordinar6 contentment, health,
education, intellectual de"elopment and
fa"oura5le surroundin!s 5ut o"er and a5o"e
ph6sical comforts, the moral and ethical "alues
ha"e also to 5e noted. <he6 are eEual if not
more important than the others.
4,. <he ;ord @;elfareB used in section ,D
of the +ct has to 5e construed literall6 and
must 5e taken in its ;idest sense. <he moral
and ethical ;elfare of the child must also
;ei!h ;ith the $ourt as ;ell as its ph6sical
;ell 5ein!. <hou!h the pro"isions of the
special statutes ;hich !o"erns the ri!hts of the
parents and !uardians ma6 5e taken into
consideration, there is nothin! ;hich can
stand in the ;a6 of the $ourt exercisin! its
parent patriae jurisdiction arisin! in such
cases.B
26(3 + 5are perusal of the impu!ned order ;ould sho;
that the trial $ourt has failed to consider the ;elfare of the
;ard Poonam Prakash ;hile considerin! and !rantin! the
application under Section 34',( of the +ct, ,-./, e"en
7
thou!h, the appellant failed to appear pursuant to the
summons issued 56 the $ourt, and neither filed return nor
adduced an6 e"idence 5ut in that situation also the trial
$ourt ;as dut6 5ound to consider the ;elfare of the
child2;ard.
26,3 #n *++7283 SCC (6' '&il R!!n $un;u !n; Anr.
>. Abhi"i $un;u( the Supreme $ourt has held that the
$ourt ;hile dealin! ;ith custod6 case is neither 5ound 56
statutes nor 56 strict rules of e"idence or procedure nor 56
precedents, ;hich reads as under :
@43. #n our jud!ment, the la; relatin! to
custod6 of a child is fairl6 ;ell8settled and it is
this: in decidin! a difficult and complex
Euestion as to the custod6 of a minor, a $ourt
of la; should keep in mind the rele"ant
statutes and the ri!hts flo;in! therefrom. But:
such cases cannot 5e decided solel6 56
interpretin! le!al pro"isions. #t is a humane
pro5lem and is reEuired to 5e sol"ed ;ith
human touch. + $ourt ;hile dealin! ;ith
custod6 cases, is neither 5ound 56 statutes
nor 56 strict rules of e"idence or procedure nor
56 precedents. #n selectin! proper !uardian of
a minor, the paramount consideration should
5e the ;elfare and ;ell85ein! of the child. #n
selectin! a !uardian, the $ourt is exercisin!
parens patriae jurisdiction and is expected,
na6 5ound, to !i"e due ;ei!ht to a child1s
ordinar6 comfort, contentment, health,
education, intellectual de"elopment and
fa"oura5le surroundin!s. But o"erand a5o"e
ph6sical comforts, moral and ethical "alues
cannot 5e i!nored. <he6 are eEuall6, or ;e ma6
sa6, e"en more important, essential and
indispensa5le considerations. #f the minor is
old enou!h to form an intelli!ent preference or
jud!ment, the $ourt must consider such
preference as ;ell, thou!h the final decision
8
should rest ;ith the $ourt as to ;hat is
conducti"e to the ;elfare of the minor.B
2693 #n a decision reported in 2*+6*3 , SCC *9, 'C. &.
R!:!<<! Go%;! >s. C. C. Ch!n;rego%;! 2;e!;3 b# /rs.
An; !noher( the Supreme $ourt, ;hile considerin! the
circumstances ;herein the ;ritten statement ;as not filed
56 the defendant it ;as held that the $ourt is dut6 5ound
to adjudicate e"en in a5sence of complete pleadin!s or in
presence of pleadin!s of onl6 one part6 and held as under
in para ,- :
@,-. <he learned counsel in this context has
specificall6 placed reliance on the o5ser"ations
of this $ourt in Balraj <aneja ;hich is of !reat
rele"ance and "alue, ;herein it ;as held as
follo;s: 'S$$ p. %,/, para 3.(
@3.. +s pointed out earlier, the court has
not to act 5lindl6 upon the admission of a fact
made 56 the defendant in his ;ritten statement
nor should the court proceed to pass jud!ment
5lindl6 merel6 5ecause a ;ritten statement has
not 5een filed 56 the defendant tra"ersin! the
facts set out 56 the plaintiff in the plaint filed in
the court. #n a case, speciall6 ;here a ;ritten
statement has not 5een filed 56 the defendant,
the court should 5e a little cautious in
proceedin! under Jrder - Rule ,/ $P$. Before
passin! the jud!ment a!ainst the defendant it
must see to it that e"en if the facts set out in
the plaint are treated to ha"e 5een admitted, a
jud!ment could possi5l6 5e passed in fa"our of
the plaintiff ;ithout reEuirin! him to pro"e an6
fact mentioned in the plaint. #t is a matter of the
court1s satisfaction and, therefore, onl6 on 5ein!
satisfied that there is no fact ;hich need 5e
pro"ed on account of deemed admission, the
court can con"enientl6 pass a jud!ment a!ainst
the defendant ;ho has not filed the ;ritten
statement. But if the plaint itself indicates that
there are disputed Euestions of fact in"ol"ed in
9
the case re!ardin! ;hich t;o different "ersions
are set out in the plaint itself, it ;ould not 5e
safe for the court to pass a jud!ment ;ithout
reEuirin! the plaintiff to pro"e the facts so as to
settle the factual contro"ers6. Such a case
;ould 5e co"ered 56 the expression 0the court
ma6, in its discretion, reEuire an6 such fact to
5e pro"ed1 used in su58rule '3( of Rule 4 of
Jrder -, or the expression 0ma6 make such
order in relation to the suit as it thinks fit1 used
in Rule ,/ of Jrder -.B
2613 <hus, in the considered opinion of this $ourt the
trial $ourt has committed a serious le!al error in !rantin!
the application ;ithout considerin! the ;elfare of the child,
;hich must ha"e 5een the paramount consideration for
!rantin! the custod6 of the ;ard.
2673 Resultantl6, the impu!ned order dated ,/.3.3//4
passed in )uardians and *ards $ase o. /323//% is set
aside. <he matter is remanded to the concerned District
7ud!e2District $ourt ;ithin the meanin! of Section %'4('5(
'ii( of the +ct, ,-./ for decision afresh, strictl6 in
accordance ;ith la;, follo;in! the o5ser"ations made 56
the Supreme $ourt in the afore cited cases, ;ithin a period
of three months from the date of receipt of a cop6 of this
order after noticin! the parties.
2683 <he appeal is allo;ed to the a5o"e extent. o cost.
'Sanja6 =. +!ar;al(
JU0G.
<hakur
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M. +. o. DD% of 3//4
In!lish
Cor !rantin! custod6 of ;ard paramount consideration is
;elfare of the child. Matter remanded to District 7ud!e.
>indi
cPps dh lqiqnZxh nsus gsrq mlds loksZRd`"V fgr dks gh /;ku esa j[kk tkuk
pkfg ! eke"k fujkdj#k gsrq ft"k $;k;k/kh%k dks i&fri&sf"kr fd;k x;k !
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