ASHOK BHUSHAN, J. - (1.) THIS first appeal has been filed by the appellants, who are grandmother and grandfather of a minor girl Km. Resha aged about 6 years, against the judgment and order dated 27th February, 2013 passed by the Additional Principal Judge, Family Court, Meerut by which the Court has allowed the application filed by the respondent, the mother of child, for custody of the child.
(2.) WE have heard Sri Sumit Daga and Sri Alok Kumar Singh learned counsel for the appellants and Sri M.A. Qadeer, Senior Advocate, assisted by Sri S.K. Tripathi for the respondent. Brief facts giving rise to this first appeal are necessary to be noted. The respondent Smt. Anshu Chaudhary was married on 6th December, 2005 with Amit Chaudhary, the son of the appellants. Km. Resha, a girl child, was born from the wedlock on 28th January, 2007. The husband of the respondent died on 8th December, 2010 in a car accident. The respondent along with her daughter continued to live with appellants till 28th February, 2011 after which it is alleged that respondent along with her child were turned out from the house. The respondent started living with her parents at T.P. Nagar, Meerut. The respondent's further case is that on 18th March, 2011 the appellants with their daughter and son-in-law came to T.P. Nagar, residence of the respondent's father, and snatched Km. Resha with regard to which a complaint was also submitted. Smt. Pushpa, appellant No.1, filed an application being Application No.18 of 2011 under Section 7 of the Guardians and Wards Act, 1890 (hereinafter referred to as the 1890 Act) praying that she be appointed as guardian of the minor Km. Resha. Smt. Anshu Chaudhary also filed an application being Application No.19 of 2011 praying that Km. Resha be given in her custody. In both the cases a joint application for compromise was submitted by appellant Smt. Pushpa and respondent Smt. Anshu Chaudhary that Smt. Pushpa shall be guardian of Km. Resha with whom the minor shall live and the minor in vacation shall live with her mother. The Court on the basis of the compromise passed an order on 29th October, 2011. In the end of the year 2011, the respondent was appointed as Lecturer in Government Girls Inter College, Bareilly where she joined and started working. The respondent filed an application under Section 10/12 of the 1890 Act being Application No.19 of 2012 in the Court of Principal Judge, Family Court, Meerut praying that custody of minor child be given to her who is her natural mother. In the application it was pleaded that minor is not getting good education and she is not being looked after well. It was pleaded that respondent is earning and shall well look after the child. Affidavits were filed by the respondent in support of her case. The statement of respondent was also recorded by the Principal Judge, Family Court and she was cross examined by the appellants. Affidavits were also filed by the appellants and the statements of the appellants were also recorded. The Additional Principal Judge, Family Court by judgment and order dated 27th February, 2013 allowed the application of the respondent and directed the appellants to handover the custody of child within 30 days. This first appeal under Section 19 of the Family Court Act has been filed by the appellants against the judgment and order of the trial Court.
(3.) LEARNED counsel for the appellants, challenging the order of the Additional Principal Judge, Family Court, submitted that the application filed by respondent being Application No.19 of 2012 was barred by principles of res-judicata in view of the fact that earlier the custody was given to appellant No.1 on the basis of a compromise dated 29th October, 2011 between the parties. It is submitted that the respondent, if aggrieved by the earlier order of the Court dated 29th October, 2011 appointing appellant No.1 as guardian, should challenge the earlier order dated 29th October, 2011 instead of filing another application. It is submitted that earlier decision dated 29th October, 2011 operated as res-judicata and the Application No.19 of 2012 was liable to be dismissed on this ground alone. It is further submitted that appellants, who are grandmother and grandfather of the child, are financially well off to take care of all the needs of the child. It is submitted that child is studying in an institution and all expenses of the child are being borne by the appellants. It is submitted that appellant No.2, who was working as Electrician in Daurala Sugar Mill, is also running a medical store from where sufficient income is received. The appellants have also taken life insurance policy in favour of the child. It is further stated that appellants have also engaged a home tutor to teach the child at home. The appellants are fully competent to take care of the child and there was no occasion to change the guardianship or to give custody of the child to the respondent.;