Abhishek Yadav vs Khemraj & Ors.

Heard Shri Yatindra, learned counsel for the appellant and Sri Zaid Arshad, learned counsel for the respondents.

The present appeal arises out of judgment and decree dated 31.05.2025 passed in Case No. 793/2024 (Abhishek Yadav Vs Khem Raj and others) filed under Section 25 of the Guardians and Wards Act, 1890 read with Section 6 of the Hindu Minority and Guardianship Act, 1956 by means of which the learned trial court, while dismissing the suit of the appellant , has granted visitation rights to the appellant and his parents to meet his minor daughter, Avya between 10am to 5pm every Monday.

The contention of the appellant in brief is that the appellant was mar-ried to Shivani Yadav on 21.04.2019 at Prayagraj according to Hindu rites and rituals. Respondent no. 1 is the father , while respondents No. 2 to 4 are the brothers of Shivani Yadav. After the marriage, the appellant and Shivani Yadav started living as husband and wife, and a daughter, Avya was born from the wedlock on 30.08.2022 in a government hospi-tal at Prayagraj and after the birth of the child ,Shivani Yadav resided at her parental home for a while. It was sometime in March, 2023 that Shivani Yadav developed some skin ailment and as a consequence, the appellant had taken her for treatment on 20.03.2023 to Dr. Shashank Rastogi. Subsequently, the appellant had also consulted Dr. Sudha Ya-dav and other doctors. On 29.11.2023, the appellant had taken his wife to Prakriti Clinic and Neuro Centre, Prayagraj, for treatment, on the very same day, the brothers of Shivani Yadav came to see her and took Shiv-ani Yadav and Avya to their home for further treatment, despite the re-sistance by the appellant. Hence, Avya remained in the custody of her father-appellanttill 29.11.2023.

However, the condition of Shivani Yadav worsened at her parental home, and she was admitted to SGPGIMS Lucknow for treatment. The appellant with his parents had gone to meet his wife while she was in the hospital, but the respondents did not permit the appellant to meet his wife. Ultimately, Shivani Yadav passed away on 29.02.2024, and the ap-pellant was informed about the same around 9:30 am on 01.03.2024. However, when the appellant, with his family and friends, reached the parental house of his wife, they were informed that the body had been taken to the cremation ground . When the appellant reached the crema-tion ground, he realized that the funeral pyre had already been lit, and the appellant was not even permitted to perform the last rites of his wife.

Thereafter, the appellant made several attempts to take custody of his minor daughter, Avya, but the same were of no avail. The appellant stays in a joint family with his parents and an elder brother, Anup Yadav, and his wife Divya Yadav. The respondents also live in a joint family, how-ever, the mother-in-law of the appellant has passed away, and the re-spondent no. 1 is dependent on his sons for his livelihood. The appellant, being the natural guardian of his daughter, is entitled to the custody of his minor. The family of the appellant is more educated and prosperous than those of the respondents, as the appellant himself is an advocate, while the father, brother, and sister-in-law of the appellant are also prac-ticing advocates at the High Court at Allahabad. Besides, the family of the appellant also owns agricultural land and a house in Prayagraj. Hence, the appellant is competent to take care of the welfare of his mi-nor daughter.

On 20.04.2024, when the appellant, along with his friend Dr. Om Prakash Kanaujia, had visited the house of his in-laws to bring back his minor daughter, the respondents had refused to hand over the custody of the child. The respondent no. 1 had also told the appellant to deposit some money in the name of respondent no. 1, which shall be utilized for the welfare of the minor daughter. Hence, the appellant was compelled to file the suit for the custody of his minor daughter.

Under the circumstances, it has been argued on behalf of the appellant that the appellant, being the father of the minor daughter, is her natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956, and as such is entitled to the custody of the child. The welfare of the minor would be taken care of by the appellant and his family, who are better placed to take care of the minor. Further, the Learned Trial Court has failed to appreciate the controversy involved, and the im-pugned judgment and decree is unreasoned and non-speaking, being based solely on the judgment of the Apex Court in the case of Som-prabha Rana and others vs. State of MP and others , even otherwise, the facts and circumstances of the said case were very different from the present case.

On the contrary, the respondents do not dispute the marriage of the ap-pellant with Shivani Yadav and the daughter, Avya being born from the wedlock. However, it is contended that Shivani Yadav was harassed and physically abused for more dowry, despite the fact that at the time of marriage, the appellant was given Rs. 5 lakhs in cash and a Tata Tiago car, along with jewellery and other household goods worth Rs 4 lakhs. After the birth of the girl child, the incidents of abuse of Shivani Yadav in the hands of the appellant and her in-laws further increased. It was as a consequence thereof and physical injuries suffered including a head in-jury that Shivani Yadav started keeping unwell, despite the fact that Shivani Yadav was keeping unwell, she was made to do all the house-hold chores. The appellant never took his wife to a doctor for treatment, and her condition continued to deteriorate. It was during this while that Shivani Yadav had informed her father regarding her deteriorating health, and it was on 29.11.2023 that the respondent no. 1 along with his son, respondent no.4 had taken back Shivani Yadav to her parental home in whatever she was wearing. The mental condition of Shivani Yadav at that point in time was not at all good, and the respondents had got her treated at Saujanya Hospital and thereafter got her admitted at Aarav Hospital, Prayagraj. The mental and neurological condition of Shivani Yadav had deteriorated solely on account of the torture that she was sub-jected to in the hands of her husband and in-laws and the severe head in-jury sustained in the process. On account of the severe head injury suf-fered, Shivani Yadav was operated. However, with passage of some time condition of Shivani Yadav detoriated, and as a consequence, the doctors at Aarav Hospital had referred her to SGPGIMS, Lucknow. It was dur-ing the course of treatment at SGPGIMS that Shivani Yadav passed away. The respondents immediately after the demise of Shivani Yadav had informed her in-laws, but none was present from the appellant's side during her cremation. Shivani Yadav had passed away solely on ac-count of the harassment and physical abuse suffered in the hands of her husband and in-laws. The respondent no.1, in respect of the harassment so suffered by his daughter, had tried to lodge an FIR, and in this regard he had also approached the Police Commissioner, Prayagraj. Hence, it is contended that, in view of the fact that Shivani Yadav had passed away solely on account of the abuse and head injuries sustained in the hands of her husband and in-laws, thus the custody of the minor daughter Avya should remain with the respondents.

The crux of contention of the respondents is that the impugned judg-ment and decree dated 31-05-2025 has been passed after taking into con-sideration all the relevant facts involved in the controversy and should be upheld. The minor child has been residing with her maternal grandfather since the time she was a few months old, and it would be torturous for the child, if her custody is handed over to the appellant. Besides, the welfare of the minor child is being well taken care of while she is resid-ing with her maternal grandfather. Further, the appellant and his family did not treat Shivani Yadav well, and she was repeatedly subjected to ha-rassment and physical abuse including a severe head injury, which ulti-mately led to her demise. There was every likelihood of the appellant getting remarried in future, and the same would jeopardize the welfare of the minor child, whose mother was ill-treated in the hands of the appel-lant and his family.

On the perusal of the records of the case and the pleas raised by the respective parties, the following points of determination arise in the present appeal:-

The records reveal that the appellant was married to Shivani Yadav on 21.04.2019, and a daughter, Avya, was born from the wedlock on 30.08.2022. Avya lived with her father, the appellant, upto 29.11.2023, and thereafter went to the house of her maternal grandfather and has been residing there till date. Presently, Avya is about four years old and has resided at the house of her maternal grandfather for about two years and nine months . It is also undisputed that the appellant is the father of the minor, and the mother of the minor, Shivani Yadav, passed away on 29.02.2024.

As far as the background of the two families is concerned, the family of the appellant comprises his parents and an elder brother and his wife. The father, brother and sister-in-law of the appellant are practicing advo-cates at the High Court at Allahabad, while the appellant himself is a practicing advocate at Prayagraj/Allahabad,while the mother of the ap-pellant is a homemaker. The father of the appellant owns a house at Prayagraj as well as agricultural lands. The records further reveal that the parents of the appellant have invested an amount of about Rs. 15 lakhs in fixed deposits at Indian Bank. The appellant himself has in-vested an amount of about Rs. 9.58 lakhs in a life insurance policy in the name of his minor daughter. Thus, it is evident that the appellant, his father, brother, and sister-in-law are law graduates and maintain the life-style of a middle-class family.

On the other hand, the respondent no.1 has retired from a Class IV post in the UP Public Works Department in the year 2024. The respon-dent no.1 is not a literate . The wife of the respondent no.1 has already passed away. The respondent no. 1 has three sons i.e respondents no. 2 to 4, and two daughters, his younger daughter, Shivani Yadav, the mother of the minor having passed away. The eldest son of the respon-dent no.1, respondent no. 2, is a graduate and is employed as Assistant Signal at Kanpur, a Group C post in the Indian Railways. The respon-dent no.1 is married and has two children who reside with respondent number 1 at Prayagraj. The second son of the respondent no.1 , respon-dent no.3 is also married and has two children. There is not much clarity about the occupation of respondent no. 3, as respondent no. 1 in his cross-examination in reference to a question in this regard has not said anything about the occupation of respondent no.3 ,respondent no. 4 in his cross-examination has stated that respondent no. 3 along with his younger brother, respondent no.4 is doing the business of retail sale of sand, while respondent no. 3 himself in his cross-examination has stated that he does plotting of land purchased from farmers. The youngest son of the respondent number 1, respondent number 4, is also married but is issueless, according to respondent no. 1 and respondent no. 2, respon-dent no.4 is doing the business of retail sale of sand, while the respon-dent no 4 himself states that he is into animal husbandry and owns five cows and three buffaloes. The eldest daughter of the respondent no. 1 is married and has got 5 children from the wedlock and stays separate from the respondent no.1.

Besides, as far as the financial status of the respondents is concerned, admittedly, respondent no. 1, though has a house and owns agricultural lands but at the same time had taken a loan of Rs. 6 lakhs at the time of the marriage of his younger daughter, Shivani Yadav. Respondent no. 1 does not draw any pension as of now and seems to be largely dependent on his sons. The respondent no.. 2 in his cross-examination has stated that his younger brothers earn around Rs 1,500 to Rs 2,000 per day from the business of retail sale of sand, while the respondent no. 2 himself draws a monthly salary of Rs.55,000/. Besides this court cannot lose sight of the fact that the respondents no .2 to 4, have their own families to maintain from their earnings, which is not so in the case of the appel-lant.

Thus, it can be concluded that the family of the appellant is finan-cially more stable and educated as compared to that of the respondent no. 1.

Besides, this court is mindful of the fact that both the respondent no. 1 and respondent no. 3 have admitted the fact that the minor either stays with the respondent No. 1 or with her maternal aunt. In fact, the respon-dent no.3 in his cross-examination has stated that the minor stays with him for 2 to 4 months and with her maternal aunt for 2 to 4 months. The records further reveal that the maternal aunt of the minor herself has a family including five children to maintain. Thus, we cannot remain oblivious of the fact that, even as of now, the minor child is not being maintained and cared for solely by the respondents.

The minor has been residing with the respondents for the past about two years and nine months, but at the same time, we also need to look into the future prospects of the minor. The appellant no. 1 is presently about 35 years old and has no dependents to take care as on date, other than the minor daughter. On the other hand, the respondent no.1 is presently aged about 62 years and is largely dependent upon his sons. Besides, the sons and daughter of the respondent no.1 are all married and have their own families to maintain. Thus, it is difficult to understand as to who would bear the responsibility of taking care of the minor with the passage of time, as the respondent no. 1 grows older. Hence, though we are cognizant of the fact that the minor daughter would face difficulties in adjusting with the appellant and his family, but at the same time, we also are mindful of the fact that the future prospects of the minor daugh-ter do not seem to be very secure and stable if she is allowed to stay with the respondents. Better future prospects of the minor cannot be jeopar-dized at the cost of difficulties she is going to face on account of the changed circumstances, if her custody is given to the appellant.

Besides, the minor daughter Avya is only about 4 years old and, as such, is not old enough to form an intelligent preference, which may be taken into consideration by this court while passing orders in respect of her custody.

The Apex Court in the case of Mausami Moitra Ganguli v. Jayant Ganguli (2008) 7 Supreme Court Cases 673 while handing over the cus-tody of the minor son to the father in respect of the welfare of the minor had held as under:-

Further the Apex Court in the case of Lahari Sakharmuri v. Sobhan Kodali AIR 2019 SC 2881 while considering the question of welfare of the minor while deciding the case of custody had held as under:-

Thus in view of the facts narrated above and the law as laid down by the Apex Court we are of the view that the welfare of the minor would be best ensured, if the custody of the minor is given to her father-appel-lant.

In view of the provisions of Section 6 of the Hindu Minority and Guardianship Act, 1956, the father has a paramount right to the custody of the children, he cannot be deprived of the custody of the minor child unless it is shown that he is unfit to be her guardian. Thus, we have to look into the fact as to whether any such circumstances are made out in the present case, which may make the appellant unfit to be the guardian of his minor daughter, Avya.

In this regard, the contention of the respondents is largely to the ef-fect that Shivani Yadav was harassed and physically abused in her matri-monial home for dowry. Besides, the respondents had at the time of mar-riage given a car, household goods, jewellery, and cash as dowry. It is also contended that it is during these acts of physical abuse that Shivani Yadav had sustained a head injury resulting in her illness.

As far as the question of dowry at the time of marriage and subse-quent thereto is concerned, there is little documentary evidence available on record except for allegations and counter-allegations. As far as the car being given in dowry is concerned, the appellant No. 1 himself admits that the respondents, out of their own sweet will, had given an amount of Rs. 2 lakhs for the purchase of the car at the time of marriage, the rest of the amount was paid by the appellant, and even the monthly installments in respect thereof are being paid by the appellant, The said fact is also evident from the bank statement of the appellant which is on record.

The case of the respondents is also that the appellant did not take good care of his wife, Shivani Yadav, and did not visit the doctor for her treatment while she was unwell. It has been specifically pleaded by the appellant that his wife was initially suffering from a skin ailment and he had visited Dr. Shashank Rastogi on 20.03.2023. Dr. Sudha Yadav and other doctors, and also Prakriti Clinic and Neuro Centre, Prayagraj, on 29.11.2023, the day on which the respondents had taken away Shivani Yadav and the minor daughter from the house of the appellant. In this re-gard, the prescriptions of Dr. Shashank Rastogi dated 20.03.2023 and 15.05.2023, that of Dr. Sudha Yadav dated 11.10.2023 and 12.11.2023, and that of Prakriti Clinic and Near Centre dated 29.11.2023 are on record. Thus, it cannot be said that the appellant did not visit doctors for the treatment of his wife.

As far as the allegation regarding harassment of Shivani Yadav and she being subjected to physical abuse is concerned, this Court finds that the marriage of the appellant was solemnized on 21.04.2019,the couple largely stayed together up to 29.11.2023, a duration of about four and a half years. During this period admittedly, no police complaint was made in respect of the physical abuse that Shivani Yadav was allegedly being subjected to, which said fact has also been admitted by the respondent no.1 during his cross examination. In fact, the Court of Chief Judicial Magistrate, Prayagraj, while dismissing the application under Section 175(3)BNSS filed by the respondents after the demise of Shivani Yadav, vide order dated 25.09.2024 had held that no case of harassment and physical abuse for dowry was made out and Shivani Yadav had passed away on account of tuberculosis meningitis.

The medical records in respect of the illness of Shivani Yadav that have been brought on record reveal that she was suffering from Tubercu-lar Meningitis Stage III with Hydrocephalus and had expired due to Brain Stem Herniation and Shock on the 29.02.2024. It is relevant to state here that tuberculosis meningitis is a life-threatening infection caused by the bacteria “Mycobacterium Tuberculosis”, which spreads from the lungs to the central nervous system. Thus, it is difficult to un-derstand as to how an alleged head injury could have led to tuberculous meningitis, moreso when the records reveal that Shivani Yadav was keeping unwell for the past about one year and her earliest medical pre-scriptions in respect of her illness pertain to March 2023.

Besides, the respondents were also very much aware of the illness of Shivani Yadav, the respondent no.2 on 29.12.2023 gave his consent for the surgery of Shivani Yadav, wherein he had acknowledged the fact that she had only 50 percent chances of survival. The respondent No. 4 in his cross-examination also admits the fact that he was aware that Shivani Yadav was suffering from brain TB. Hence, there is nothing on record to substantiate the allegation that Shivani Yadav fell ill and passed away on account of the head injuries sustained during physical abuse in the hands of the appellant and his family.

The fact is that there is nothing on record to demonstrate that there was any dischord between the appellant and his wife, late Shivani Ya-dav.

The Apex Court in similar circumstances in the case of Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others (2019) 7 Supreme Court Cases 42 wherein the wife was detected with breast can-cer in May, 2017 and the minor girl child was born on 14.08.2017 while the wife was undergoing treatment, on 29.11.2017 the wife was diag-nosed with Tuberculor Meningitis and Pulmonary Tuberculosis, while the wife was undergoing treatment her sister ,Tejaswini Gaur and the husband of Tejaswini had taken the wife along with minor to Mumbai for continuation of treatment. Subsequently the wife along with the mi-nor had shifted to her parental home in Pune but were again shifted back to the house of Tejaswini Gaur in Mumbai. The wife succumbed to her illness on 17.10.2018 and the minor continued to remain in the custody of her maternal aunt. Subsequently the father of the minor had filed a pe-tition seeking her custody. The Apex Court in the said case had held as under:

Further the Apex Court in the case of Gautam Kumar Das v. NCT of Delhi and others (2024) 10 Supreme Court Cases 588 where the wife had passed away due to Covid-19 leaving behind two minor children and the husband took the help of his sister-in-law in taking care of his chil-dren as an interim solution. However after sometime the custody of the minor son was given back to the father but the sister-in-law sought to keep the minor daughter and thereafter started refusing the father to meet his minor daughter. It is under such circumstances that the father had filed a petition under the Gurdian and Wards Act, 1890, and the Apex Court while granting the custody of the minor to the father had held as under:-

Thus, in view of above this court holds that the appellant being the natural guardian of his minor daughter, Avya is entitled for the custody of his daughter.

A perusal of the impugned judgment and decree reveals that al-though it runs into 22 pages but the larger part of the judgment contains reproduction of the pleadings of the parties and the evidences of the six witnessess produced. The reasons assigned by the learned trial court while dismissing the suit filed by the appellant is that the minor had been residing with her maternal grand father since long, and there was nothing material on record to show that the minor is not being well taken care of. Moreover, the impugned judgment and decree is based upon the judg-ment of the Apex Court in the case of Somprabha Rana and others v. State of M.P.

A perusal of the judgment reveals that no reasons have been as-signed by the learned trial court while deciding issue nos. 2 and 3, while the issue no.1 has been decided by solely relying upon Section 6 of Hindu Minority and Guardianship Act, 1956. Hence, the judgment on the face of it is unreasoned and non speaking. The learned trial court has neither given any reasoning or finding in respect of question of paramountcy of welfare of the minor even though the learned trial court has adverted to the provisions of Section 17 of the Gurdian and Wards Act, 1890. Further the learned trial court has also failed to assign any reasons and finding that made the appellant unfit to be given custody of the minor, while dismissing the suit.

In this regard the provision of Order XX Rule 5 CPC are relevant and provide that the Civil Court is required to decide each issue framed by stating its findings or decision with reason therefor. The provisions read as under

Insofar as the reliance placed upon the case of Somprabha Rana (supra) is concerned we find that the facts of the case are totally differ-ent from those involved in the present controversy. In the said case the unnatural death of the mother had occurred on account of hanging. Sub-sequently an FIR was lodged against the father who was arrested in con-nection with the offence and was subsequently granted bail and a charge sheet was also filed. It is under such circumstances that the Apex Court had granted the custody of the minor to the maternal grand parents, and also, in view of the fact that High Court had failed to consider the ques-tion of welfare of the minor while granting custody of the child of the fa-ther.

We fail to understand as to how the said judgment would be applica-ble in the facts and circumstances of the present case. In this regard it is settled that the Courts should not place reliance on decision without dis-closing as to how factual situation fits in with the facts and circum-stances on which reliance is placed. The observation of Court should neither be read as Elucids theorem nor as the provisions of a statute and that too taken out of their context. Thus the observations must be in the context in which they appear to have been stated. However, the learned trial court has completely overlooked this settled principle of law.

It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. However, the learned trial court while applying the judgment in the case of Som Prabha Rani (Supra) has completely overlooked the factual as-pects of the controversy involved in the said case.

Thus, we can very well conclude that the impugned judgment and decree has been passed without assigning reasons and findings and is li-able to be set aside on this ground.

In view of the above, the judgment and decree dated 31.05.2025 passed by the learned trial court in case No. 793 of 2024 (Abhishek Ya-dav v. Khemraj and 3 others) is set aside. The respondents are directed to hand over the custody of the minor, Avya to her father-appellant within one month from today. We are also aware that the minor has been residing with the respondents for the past two years and nine months, hence, the respondents are given visitation rights to meet the minor be-tween 2 pm to 5 pm at District Legal Services Authority, Prayagraj. It shall be open for the parties to move to the learned trial court, if they want to change the venue of visitation.