- (1.) THESE two cross-appeals, arising out of the judgment and decree dated 01.12.2009 as passed by the Family Court, Jodhpur in a petition under Sections 7 and 8 of the Guardian and Wards Act, 1890 (CO No.30/2007), have been considered together; and are taken up for disposal by this common judgment. It may be observed at the outset that for a relevant subsequent event, as said to have taken place on 11.6.2012, not much of dispute appears surviving and, therefore, dilatation on all the factual aspects is not necessary; only a brief reference to the background aspects would suffice.
(2.) THE matter relates to the custody and guardianship of the minor Master Dev. The appellant of CMA No.155/2010, Shri Dilip Gehlot (the non-applicant before the Family Court), is the father of the child whereas the appellant of CMA No.1092/2010, Smt. Yashoda Deora (the applicant before the Family Court), is the maternal grand-mother of the child. Late Ms.Anjali, the daughter of the applicant, was married to the non-applicant and out of this wedlock, the child Master Dev was born on 19.11.1999. Unfortunately, the applicant's daughter Ms.Anjali, the mother of the child Master Dev, expired on 07.07.2001. It has been the case of the applicant that before her death, Ms. Anjali appointed her father (i.e., the husband of the applicant) Shri Dinesh Deora as the guardian of the child Master Dev. It is borne out from the material on record that the said Shri Dinesh Deora filed a writ petition before the Hon'ble Madras High Court on 29.10.2001 in relation to the custody of the child, wherein an interim order was passed. However, unfortunately, the said Shri Dinesh Deora also expired on 18.02.2007. Seeking the orders for custody and guardianship of the child Master Dev, the applicant submitted that in the adverse circumstances, she closed down her husband's business at Madras and came down to Jodhpur with the child Master Dev and her daughter Ms. Raina; started residing with other members of the family; and got the child Master Dev admitted to the school at Jodhpur. The applicant submitted that she was looking after the welfare of the child; and so was her daughter Ms. Raina, who was also contributing Rs. 2,000.00 per month in this regard. It was further submitted that the non-applicant, the father of the child Master Dev, had contacted second marriage with Ms. Beena, daughter of Shri Narendra Sankhala. While asserting that the mother of the child had expressed her wishes that the child should remain with his maternal grand-parents and while further alleging that the non-applicant had not been fair in his conduct towards the child and his mother, the applicant prayed that she be appointed as the guardian of the person and property of the child Master Dev. The application was put to contest by the non- applicant on several grounds. However, after taking the evidence and considering the submissions of the respective parties, the Family Court, Jodhpur observed that the child was being properly looked after by the applicant, the maternal grand-mother; and the child had also expressed his desire to live with her. The Family Court, even while finding it to be in the welfare of the child that he remained under the guardianship of the applicant, considered it proper to take into account the wishes and desire of the non-applicant too; and, while making provision for his meeting with the child at regular intervals, proceeded to order as follows: ...[vernaculam text ommited]......
(3.) THE non-applicant and the applicant have filed the respective appeals against the part of judgment and decree dated 01.12.2009 insofar the directions aforesaid operate in favour of the other. Though several grounds have been urged by the parties in the respective appeals but, it has been given out that now, the changed scenario is that the applicant Smt. Yashoda Devi, for several reasons and circumstances including her age, has since shifted to Jaipur to live with her kith and kins; and being satisfied that the child would be properly looked after by the non-applicant, who is none other but the father of the child, has voluntarily handed over the custody of the person of the child to the non-applicant on 11.06.2012. The learned counsel for the parties submit ad idem that the child Master Dev is now happily living with and under the guardianship of his father i.e., the non-applicant Shri Dilip Gehlot (appellant of CMA No.155/2010); and is continuing with his studies.;