No Order Of Custody Of Ward Is Final; It's Always Liable To Scrutiny Depending On Proof Of Substantial Changes: Andhra Pradesh High Court

The Appeal before the High Court was filed under Section 47 of the Guardian & Wards Act, 1890 (G.W.Act) by the appellant-father of the minor son (Ward) seeking his custody under Sections 9, 10 and 23 of the G.W.Act from the respondents’ custody. The father challenged the order of rejection of his petition passed by the Principal District Judge, Ananthapuram.

The Division Bench of Justice Ravi Nath Tilhari and Justice Challa Gunaranjan held, “...we would like to reiterate the settled principle of law, that no order of custody of the ward is final and conclusive. It is always liable to further judicial scrutiny and modification by the court, depending on proof of substantial changes in the circumstances that occur in the growing life of the ward and the guardian. When occurrence of substantial changes is brought to the notice of the court, it is bound, inappropriate cases to modify the orders of custody, no matter the original petition itself has culminated in a decree for permanent custody and the proceedings before the Court has come to a logical conclusion.”

Advocate K.P. Abhiram represented the Appellant, while Advocate Vivekananda Virupaksha represented the Respondent.

Factual Background

The respondents are the maternal grandfather, grandmother and uncle of the ward. In the year 2017, the appellant’s wife died due toan incident that took place in the appellant’s home. The respondents registered a criminal case under Sections 498-A, 302 and 201 read with Section 34 IPC against the appellant and his parents. It was the appellant’s case that the respondents took away the Ward on the pretext and against his wish. It was further his case that he was falsely implicated in the case of the death of his wife, alleging it to be murder, though it was a case of suicide. The appellant filed the petition for custody of the ward, submitting that the welfare of the ward was with the appellant.

During the pendency of the Petition, the appellant was acquitted. The Principal District Judge concluded that after the death of the appellant’s wife/mother of the ward, in the year 2017, the ward was in the custody of the respondents. In the criminal matter, though the appellant was acquitted, the ward was the witness against the appellant. The Court thus recorded the finding that the appellant was not entitled to the custody of the ward and dismissed the appellant’s petition. Aggrieved thereby, the appellant approached the High Court.

Reasoning

Referring to the precedents governign the custody laws, the Bench said, “In custody matters, the position in law, is well settled and that is that, it is not the right of the person claiming, or opposing custody, but the welfare of the child, as a whole, which is of paramount consideration. It is also not the right of the natural guardian, to have the custody of the child, if it is not in the welfare of the child. Such consideration, i.e right, never prevails over the welfare and interest of the minor.

The Bench noted that there was a criminal case against the appellant, and the minor was produced as an eyewitness against the appellant. Reference was made to the photographs showing marks of injury around the neck of the child. There was a proximity between the dates of the incident of the mother’s death and the photographs. As per the Bench, the possibility of the marks being the marks of strangulation as observed by the Family Court, Bangalore, couldn’t be ruled out.

“...only for the purposes of this appeal considering the custody matter, the photographs of the child as they are, we take it as a relevant factor and cannot ignore the same, which prima facie goes against the appellant for giving custody to him and being considered as against the welfare of the minor”, it said while also adding, “the concern of the respondents, that, the child deposed against the father, during investigation, before the Magistrate and in Sessions Court as also the pendency of the criminal appeal are relevant factors and they can be addressed, by granting restricted and supervised visitation meetings.”

Further placing reliance upon the judgements of the Apex Court in Kirtikumar Maheshanker Joshi v. Pradip Kumar Karunashanker Joshi, (1992) and Ruhi Agrawal and another vs. Nimish S. Agrawal (2023), the Bench observed, “We are of the view that after acquittal the father, ordinarily, should not be deprived of the love and affection of the child or of his company, restricted and supervised, keeping in view the observations made and the spirit of the judgments in Kirtikumar Maheshanker Joshi(supra) and Ruhi Agrwal (supra), so that the father may also get an opportunity to win over the love and affection of the child, by his acts, conduct behivour and sharings. Let the understandings be better between the parties for overall development of the child.”

The Bench thus concluded the matter by permitting the appellant (father) i to visit/meet the child twice in a month at the Family Court at Ananthapur, for two hours. The Bench also issued a list of other directions regarding the visitation schedule and permits.

Cause Title: X v. Y (Case No.: C.M.A.No.247 OF 2023)

Appearance:

Appellant: Advocate K.P. Abhiram

Respondent: Advocate Vivekananda Virupaksha

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