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Judgments of Supreme Court of India and High Courts

Dipesh Raj vs Khushbu Kumari on 26 April, 2019


Dipesh Raj, Son of Shri Mahesh Sah, Resident of Village- Mathura Uttar,
Ward No. 09, P.S.-Narpatganj, District- Araria.

… … Plaintiff-Petitioner
Khushbu Kumari, Wife of Dipesh Raj and Daughter of Shri Binod Sah
Resident of Station Chowk, Forbesganj, Ward No. 11, P.S.-Forbesganj,

… … Opposite party-Respondent

Appearance :
For the Petitioner : Mr. Kumar Ravish, Advocate
Mr. Sanjay Kumar Sharma, Advocate
Mr. Kashyap Kaushal, Advocate
For the Respondent/s : Mr.


2 26-04-2019 Heard learned counsel for the petitioner.

This application under SectionArticle 227 of the Constitution

of India has been filed by the petitioner challenging the order

dated 06.09.2018 passed by the learned Principal Judge, Family

Court, Araria in Matrimonial Case No. 107 of 2016 whereby a

petition filed under Section 226 of the Hindu Marriage Act

dated 11.04.2018 with respect to custody of the minor child,

namely, Master Dev Raj aged about 3 years has been allowed in

favour of the respondent-wife and the petitioner has been

directed to hand over the custody of the minor child to the

respondent-wife within a period of 15 days as also the petitioner

has been directed to pay a sum of Rs. 2,000/- per month from

the date of order in order to fulfill the basic need and welfare of
Patna High Court C.Misc. No.463 of 2019(2) dt.26-04-2019

the child.

It is submitted by the learned counsel for the

petitioner that the marriage between the petitioner and

respondent was solemnized on 13.03.2015 whereafter on

16.02.2016 Master Dev Raj was born in a hospital at Purnea.

Since there was matrimonial discord and incompatibility, the

petitioner filed Matrimonial Suit No. 107 of 2016 under Section

13 of the Hindu Marriage Act against the respondent seeking

dissolution of the marriage. The respondent appeared upon

notice and filed her written statement and contested the said


The further contention of the petitioner is that

immediately after the birth of the child, the respondent left the

matrimonial house leaving the child and, since then, the child is

being looked after properly by the petitioner and his parents.

After more than one year of the birth of the child, the

respondent filed a miscellaneous case in the court of District

Judge, Araria vide Miscellaneous Case No. 22 of 2017 under the

provisions of Section 12 of the Guardians and SectionWards Act, 1890

and sought for appointment as a guardian of the minor child till

disposal of the case. Later, the respondent opted to withdraw the

said miscellaneous case. Accordingly, the miscellaneous case
Patna High Court C.Misc. No.463 of 2019(2) dt.26-04-2019

was dismissed on 24.11.2017. Thereafter, she filed another

petition on 19.12.2017 vide Miscellaneous Case No. 27 of 2017

under Section 8 of the Guardians and SectionWards Act, 1890. She filed

another petition on 07.03.2018 seeking withdrawal of the said

case, which was allowed on 07.03.2018 by the learned District

Judge and said Miscellaneous Case No. 27 of 2017 was also

permitted to be withdrawn. Thereafter, in the matrimonial case

filed by the petitioner, the respondent preferred a petition on

11.04.2018 seeking custody of the child under Section 26 of the

Hindu Marriage Act. After hearing the parties, vide order dated

06.09.2018, the learned Principal Judge, Family Court, Araria

allowed the petition dated 11.04.2018 filed by the respondent.

He contended that the impugned order passed by the

learned Principal Judge is bad in law as well as on facts. Before

passing the order, the learned Principal Judge did not call the

child in question for interaction in order to appreciate and to

understand the welfare of the child. The settled principle of law

that the welfare of the child should be the prime consideration in

deciding the cases of child custody has completely been

ignored. He argued that the father being the natural guardian of

the child can also keep the custody of the minor child if he is

able to keep the child and maintain the child properly even in
Patna High Court C.Misc. No.463 of 2019(2) dt.26-04-2019

the absence of the mother. He pleaded that the respondent did

not take any effort to seek child custody when she left the

matrimonial house on 11.08.2016 when the child was only six

months old and was in need of care and protection of mother.

The respondent produced a false birth certificate purported to

have been issued on 27.12.2017 with respect of the birth of the

child. In support of his submission that the order impugned is

bad in law, he has placed his reliance on the judgments of the

Supreme Court in the matters of SectionVishnu and Ors. vs. Jaya

since reported in (2010) 6 SCC 733 and SectionMausami Moitra

Ganguli vs. Jayanti Ganguli since reported in (2008) 7


Issue notice to the sole respondent both by ordinary

process as well as registered cover with A/D, for which

requisites, etc. must be filed within one week, failing which the

application shall stand dismissed without further reference to a


List this matter under the same heading immediately

after receipt of the service report.

(Ashwani Kumar Singh, J.)


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