Deepan Jon Johari vs Anju on 31 August, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Miscellaneous Appeal No. 4352 / 2011
Deepan Jon Johari son of Late Rabinson Johari by caste Christian,
resident of Plot No. K-142, Bunglow No. 60, Old City Nagar Palika
Premises, Neemach M.P.
—-Appellant
Versus
Anju d/o Late Mauris William by caste Christian, resident of
Dadwada Kota Junction Kota
—-Respondent

__
For Appellant(s) : Mr. Abhimanyu Singh Adv.
For Respondent(s) : Mr. Lokesh Sharma Adv.
__
HON’BLE MR. JUSTICE AJAY RASTOGI
HON’BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
31/08/2017

The instant intra-court appeal is directed against the order

passed by the ld. Family Court on an application filed by the

appellant who happens to be the biological father of Kunal seeking

his custody under the Guardians and Wards Act, 1890.

The undisputed facts which have come on record are that the

marriage of the appellant with the respondent was solemnized on

2nd June, 1999 at Kota according to the rites and customs and

from this wedlock son Kunal was born on 5 th February, 2001 who

indisputably from the day of his birth is with his mother.

They got their marriage dissolved through consent under

Section 10(A) of the Special Marriage Act, 1954 dt. 18 th January,

2003 and started living separately and maintaining their own
(2 of 4)
[CMA-4352/2011]

affairs and since their son remained in the custody of the

respondent mother from the date he was born. The appellant on

22nd August, 2008 filed application u/Sec. 7 of the Guardians and

Wards Act, 1890 for taking the guardianship of their son who was

of 7 years at that time on the pleadings of the parties 3 issues

were framed by the ld. Family Court which read ad infra:-

U;k;ky; }kjk i{kdkjksa dh lekbZ”k dh xbZ] tks iw.kZrk;k foQy jgkA rnqijkUr i{kdkjks ds

mijksDr vfHkopuksad ds vk/kkj ij fuEu fook/kdks dh jpuk dh xbZ gS%

1. vk;k cPps dk fgr izkFkhZ dh laj{krk o dLVM+h esa j[kus esa gS

2- vk;k nksuks i{kks ds e/; lgefe ls rykd ds ckn rFkk mlesa cPps dh
dLVM+h vizkFkhZ;k dks fnyk;s tkus ds ckn Hkh izkFkhZ ;g fiVh”ku dj ldrk gS
3- vuqrks’k
Parties led their evidence and in support of their case the

appellant recorded his statement as AW-1, Zahid Khan Pathan

AW-2, Kamini Johari as AW-3 and Shalini Johari as AW-4the

respondent in support of her defence got herself examined as NW-

1 and Naseem Harold as ANW-2.

On the pleadings of the parties, the ld. Family Court finally

arrived to the conclusion while deciding issue Nos. 1 2 together

that after their marriage was solemnized on 2 nd June, 1999, and

from this wedlock son Kunal was born on 5 th February, 2001 and

they dissolved their marriage with consent on 18 th January, 2003,

and both agreed at the time of dissolving their marriage by

consent that son Kunal will remain in the custody of the

respondent-wife and she will not demand any maintenance from

the appellant and she has a sufficient means/financial assistance

to maintain their son as well.

The ld.Family Court finally held that the paramount interest
(3 of 4)
[CMA-4352/2011]

of their son is to remain in the custody of his mother and she has

sufficient means for her to maintain their son and at the time

while dissolving their marriage by consent it was also resolved

that the son will remained with the wife/mother and there appears

no reason in the given facts and circumstances to hand-over

guardianship of the appellant under its order impugned dt. 28 th

July, 2011.

During pendency of the appeal, we called upon Master Kunal

who is now a grown up child of 17 years and on the last date of

hearing when the matter came up on the misc. application filed by

the appellant for seeking visiting rights of their son Kunal a

detailed order dt. 23rd Sept. 2017 was passed by us taking note of

wishes of their son who frankly stated before the court that he is

not willing to meet his alleged father as he has never seen him

from his childhood at any point of time and he is happy to stay

with his mother. It will be appropriate for us to refer the extract

of the order dt. 23rd September, 2017, where we have noticed the

wishes of their minor son Master Kunal, which reads ad infra:-

“It has been informed that son (Master Kunal) who is
minor refused to meet his father, the appellant herein
and thereafter when the matter came up before the
court on 04.04.2013, the respondent along with her son
Master Kunal appeared before the court and this court
took note of the conversation between parents son
Master Kunal and observed that Master Kunal has
frankly stated before the court that he is not willing
even to meet his father and has never seen his father
since his childhood at any point of time is happy with
his mother alone.”

Their son named Kunal whose date of birth is 8 th January,

2001 is a grown up child and is in the guardianship of his mother

from his childhood and has never shown his willingness even to
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[CMA-4352/2011]

meet his father.

In the given facts circumstances, when the paramount

consideration is the wish of their son, whose custody and

guardianship has been claimed by the appellant, when their son is

not even willing to see his father or to meet him and at the same

time he has also stated that he is happy to stay with his mother

and there is no complaint made and when his welfare is being

properly watched by his mother, there appears no reason for us to

interfere with the finding recorded by the ld.Family Court rejecting

the application filed by the appellant seeking guardianship of their

son under order impugned dt. 28th July, 2011.

The finding which has been recorded by the ld. Family Court

is based on cogent material on record and we find no perversity in

the said finding which calls for our interference.

Consequently, the instant Misc. Appeal being devoid of merit,

accordingly stands dismissed.

(ASHOK KUMAR GAUR),J. (AJAY RASTOGI),J.

Monika/Solanki-26

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