Jamshed vs Smt. Gulista on 22 June, 2017

IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL

Appeal from Order No.673 of 2015

Jamshed …………..Appellant
Versus

Smt. Gulista ………. Respondent

Present: Mr. Mohd. Safdar, Advocate for the appellant.
Mr. Raj Kumar Singh, Advocate for the respondent.

Coram:- Hon’ble Rajiv Sharma, J.

Hon’ble Sharad Kumar Sharma, J.

Reserved on: 16.06.2017
Delivered on: 22.06.2017

Per – Hon’ble Sharad Kumar Sharma, J.

In the present Appeal from Order, the appellant
(husband) challenges the order dated 26.08.2015, passed by
Additional Judge, Family Court, Roorkee, District-Haridwar,
whereby, his Misc. Case No.22 of 2012, preferred under Section
10 r/w Section 25 of Guardian of Ward Act, for seeking custody
of the minor child Rehan, has been rejected.

2. Heard Mr. Mohd. Safdar, Advocate learned counsel
for the appellant and Mr. Raj Kumar Singh, Advocate learned
counsel for the respondent.

3. According to the appellant his marriage with
respondent was solemnized on 27.03.2008, out of marriage son
Rehan was born on 30.11.2009, at the time when the
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miscellaneous case was filed Master Rehan was only three years
of age.

4. For procuring the custody of Rehan, the appellant had
filed an application before the Family Court under Section 25 on
26.04.2014, on the ground that there had been earlier litigations
between the husband and wife registered as Suit No.108 of 2009,
“Jamshed vs. Smt. Gulista,” for restitution of conjugal rights
and there had been other proceedings wherein a claim has been
raised by respondent for the payment of an amount for
maintaining the child.

5. Another ground which was taken was that since, the
respondent (wife) is residing in her parent’s house and is not
willing to reside with the husband and discharge her matrimonial
obligation, the future of Rehan would be rendered in dark, if he
is permitted to continue to live with her at her parents place.

6. The appellant also stated that there is certain
misunderstanding between the husband and wife and on account
of the aforesaid misunderstanding, she has left the in-laws house
and is residing with her parents, he contended that all his efforts
to bring her back was of no avail on account of the arrogant
attitude of hers.

7. It is an admitted case of the appellant that the
proceedings registered as Suit No.108 of 2009, for restitution of
conjugal rights “Jamshed vs. Gulista”, was decreed, but still the
wife has declined to discharge her matrimonial obligations. The
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appellant (husband) has also placed reliance in the proceedings
of Case No.180 of 2009, wherein she has claimed maintenance
for maintaining her son, which was too dismissed on 09.10.2012.

8. The learned Family Court after considering the rival
contentions and the wellbeing of the minor child Rehan, which is
supreme to be attained as intended under Guardian and Wards
Act, in particular under Section 25, the Court by the impugned
order dated 26.08.2015, rejected the application of the appellant
and custody of minor Rehan continued to be with Gulista
(mother).

9. According to the findings recorded, the Court on the
basis of the evidence brought on record has come to a conclusion
that it would not be in the interest of child to give the custody to
the appellant, because it has been established that he has
company of females whose characters are deceptive, apart from
it according to the applicant himself that he is uneducated and is
having an income of Rs.800 to 900 per month only. The case of
the appellant developed before the Court below was that he
would be the most suited person to maintained his son Rehan,
because according to the wife’s case as she pleaded in Case
No.145 of 2011, preferred under Section 125 of the Cr.P.C., she
has contended that the appellant is earning a sum of Rs. 30,000/-
per month, on the basis of the said premise, the husband stated
that his income is on the higher side and he would be in a better
position to maintain his son Rehan.

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10. The learned Family Court rejected the application
rightly, so taking into consideration the fact that the statement of
the respondent pertaining to the income of the appellant in 125
Cr.P.C. proceedings is irrelevant, more particularly when it is an
admitted case of the appellant that he is having an earning of
Rs.800 to 900, only which is too meager to maintain Rehan. The
parties before the Court below had agreed to the submissions
that Rehan is residing with the respondent, who is taking care of
Rehan by imparting good education and is taking care of his
wellbeing. Nothing was brought on record to this affect.

11. The learned Trial Court also took note of the fact
after the birth of Rehan on 30.11.2009, the applicant under
Section 25 had never made any effort to show his affinity and
shower his affection towards Rehan which more important and
even so much so, he has not made any efforts to meet his son to
shower his affection on him nor made any responsibility which a
father has to discharge. Nothing was brought on record to this
affect.

12. The stand taken by the appellant before the Court
below that since in the proceedings for restitution of conjugal
rights, and against the orders passed in the same, since the writ
petition is pending consideration in which the notices have been
issued, the order of restitution of conjugal right will become
ineffective, and hence according to the appellant, the issue of
custody cannot be considered is a misconception, the
proceedings under Section 10 r/w Section 25 of Guardianship
and Ward Act, has got no nexus with the proceedings for
restitution of conjugal rights and thus, merely because of the
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pendency of a writ petition against an order of restitution of
conjugal rights will in no manner adversely affect the
proceedings of Guards and Wards Act, which is independent to
one and another, in which the prime consideration is the welfare
of the child without being swade by any other consideration.

13. According to respondent, the minor Rehan when he
was in the womb of his mother, her care was being taken by her
parents and during the said period she resided with a parents
who have taken the utmost care and during the said period since,
the appellant has not shown any concern or his willingness to
discharge his responsibilities towards his pregnant wife when
she was in the family way which shows the bend of mind, as
such the custody by the impugned order has given to the mother
has rightly been given to her because of insensitivity of the
appellant towards his wife and his son. It is highly unexpected
that a father would not make any efforts to meet his son and to
discharge his responsibilities as a father, in such a situation, the
learned Family Court has rightly granted the custody of the child
to his mother. On perusal of the oral evidence adduced by way
of paper no.19a of the appellant along with the affidavit as
submitted by the respondent (wife) shows that it was a specific
case of the respondent that the in-laws of her too more interested
in their procurement of booty from the respondent’s parents
home instead of showing their concern and attachment to the
respondent and her son Rehan.

14. According to the oral and documentary evidence it
stands established that Rehan ever since his birth is residing with
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his mother Gulista and is a student of second standard and is
being reared by the respondent (wife), mother who would be
best person to take care of his wellbeing.

15. Keeping the aforesaid issues and taking into
consideration the fact that the provisions of Section 25 intends to
secure welfare of the child, and to determine the safest place
ensuring future is to be settled by the Court and thus, the Family
Court by the impugned order dated 26.08.2015, rightly rejected
the application of the appellant, considering the fact that he is
illiterate, having limited source of earning and the environment
with the appellant is not supporting the up-liftment of the child
and its future. Thus, the appeal fails and is dismissed.

(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.)
22.06.2017

A.kaur

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