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Naresh Kumar vs Anju Devi on 29 August, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

D.B. Civil Miscellaneous Appeal No.2615/2018

Naresh Kumar S/o Shri Puran Singh, B/c Jat, aged about 38
years, R/o Kuwa Subedarjiwala Tan, Village Bharni, Tehsil
Srimadhopur, District Sikar (Raj.)
—-Appellant
Versus
Anju Devi W/o Naresh Kumar D/o Vidhyadhar Meel, B/c Jat,
aged about 35 years, R/o Meelo Ki Dhani, Near Purohiton Ki
Dhani, Tehsil District Jhunjhunu (Rajasthan)
—-Respondent

For Appellant(s) : Shri Mahesh Kalwania
For Respondent(s) : Shri Mahendra Kumar Jain

HON’BLE MR. JUSTICE MOHAMMAD RAFIQ
HON’BLE MR. JUSTICE NARENDRA SINGH DHADDHA

Order

19/08/2019
Order reserved on 19/08/2019
Order pronounced on 29/08/2019

BY THE COURT : (PER HON’BLE DHADDHA,J.)

1. This appeal has been preferred by the appellant Naresh

Kumar against the order of the learned Family Court, Jhunjhunu

passed on 17.4.2018 whereby the learned Family Court rejected

the Civil Misc. Case No.874/2016 (528/2015) (59/2015) filed u/s

25 of the Guardians and SectionWards Act, 1890 read with Sectionsection 6 of

the Hindu Minority and SectionGuardianship Act, 1956 seeking custody of

minor son Yash.

2. Brief facts giving rise to this appeal are that the

marriage of the appellant was solemnized with respondent on

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15.7.2005 as per Hindu rites and customs and spouses are

blessed with male child Yash on 20.12.2006. The appellant was

posted as Sub-Inspector at Mumbai airport. For some time, the

spouses were maintaining good relationship but after passing of

few days there relations became strained and respondent started

quarreling with the appellant and his family members without any

reasons. But in order to maintain peace and harmony in family,

the appellant always tolerated bad and unacceptable behaviour of

the respondent. On misbehave of the respondent, the appellant

filed a divorce petition which was dismissed on 17.4.2018 by the

learned Family Court. The appellant admitted his son at Mahala

Residential Public School, Reengus in Class-IV standard in 2014-

15. The said school is an English medium. On 6..5.2015, the

respondent took his son Yash by force without any information.

The appellant submitted an application before the Sub-Divisional

Magistrate, Srimadhopur u/s 97 of the SectionCr.P.C. to take custody of

his son. His application was rejected and gave custody of his son

Yash was given to the respondent vide order dated 17.4.2018

3. In reply, the respondent wife denied all the allegations

and stated that the behaviour of the appellant was cruel with her

and son. The appellant was careless about his son and he was in

the habit of intoxication. So, the application for taking custody be

rejected.

4. From the pleadings, the learned Family Court framed

issues :

“1- vk;k izkFAhZ ;’k dk uSlfxZd firk gksus ds dkj.k ;’k dk mTtoy
Hafo”; izkFAhZz ds laj{A.k ess a jgus ls gS ?

2 vk;k ;kfpdk o ‘kiFA i_ dk mfpr lR;kiu ugha gksus ls ;kfpdk
[Akfjt fd;s tkus ;ksX; gS ?

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3- vuqrks”k ?”

5. The appellant examined himself as AW-1 and three

other witnesses as Suwa Lal AW-2, Laxmi Devi AW-3 and Pooran

Singh AW-4 and exhibited 15 photographs .

6. The respondent examined hierself as NAW-1 and three

witnesses as Vidhyadhar NAW-2, Sunita Choudary NAW-3 and

Yash NAW-4 and exhibited 18 documents.

7. After hearing the learned counsel for the parties, the

learned Family Court decided these Issues in favour of the

respondent and against the appellant.

8. Learned counsel for the appellant submitted that the

learned Family Court had committed serious error in dismissing

the application filed by the appellant u/s 25 of the Guardians and

SectionWards Act, 1890 read with Sectionsection 6 of the Hindu Minority and

SectionGuardianship Act, 1956 for seeking custody of his minor son Yash.

The learned Family Court in routine and cursory manner and

without application of judicial mind, straightway dismissed the

petition. Learned counsel for the appellant submitted that

behaviour of the respondent after marriage, was not good. She

used to quarrel with appellant and his family members and

without any reason on trivial matter, she used to live matrimonial

home for her parental house without taking care of appellant and

her child Yash. The appellant and his parents had to take care of

minor child Yash since his childhood. For better future of his child

Yash, the appellant requested his higher-ups in office to get his

transferred at Mumbai where Yash admitted in Kandriya Vidyalaya

for study. The behaviour of the respondent had not changed. So, it

was impossible for the appellant to stay with respondent at

Mumbai. The appellant shifted Yash and respondent from Mumbai

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to his village in the care protection of his own parents and

further got his son admitted in an English Medium School at

Reengus in the academic sessions 2014-15 in Standard-IV. The

respondent without permission of the appellant, took minor son

Yash from school bus. Appellant’s father thereafter made a

complaint u/s 97 of the SectionCr.P.C. before Sub-Divisional Magistrate,

Srimadhopur. The SDM, Srimadhopur handed over the custody of

minor child Yash to the respondent. Learned counsel for the

appellant submitted that atmosphere in the parental family of the

respondent, was not so good for the study of Yash because

brother of the respondent is a driver by profession. On the other

hand, his father is an Ex-Serviceman and sister is also well

educated. So, the atmosphere of appellant’s home is very

favorable for minor child Yash.

9. Learned counsel for the appellant submitted that for

custody of minor child, the matter was to be decided not on

considerations of the legal rights of the litigant parties but on the

sole and predominant criteria of what would best serve the

interest and welfare of the minor is the paramount consideration.

The order of the learned Family Court was not in the best interest

of the child. The learned counsel for the appellant also submitted

that the appellant had left his job for betterment of the child Yash

but the learned Family Court had failed to consider this averment.

10. The learned counsel for the appellant submitted that

the learned Family Court erred in believing the statement of minor

child who was only twelve years old. On question to minor Yash, to

whom he wanted to live, he readily answered of his own to live

with his mother. Learned counsel for the appellant submitted that

the minor Yash was only twelve years old and he did not

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understand as to where his welfare lies and in such a tender age,

the will of a child with whom he wanted to live had no significance.

The learned Family Court ought to have decided the matter on the

basis of evidence lead by the parties and welfare of minor child.

The learned counsel for the appellant also submitted that the

appellant had better financial condition than the respondent. The

learned Family Court wrongly interpreted that the financial

position of the appellant was not so good. So, the appeal be

allowed and custody of the minor child should be granted to the

appellant.

11. On the other hand, the learned counsel for the

respondent submitted that there was no illegality and infirmity in

the impugned order. He submitted that the respondent is well

educated and she was serving and the minor Yash was studying in

S. S. Modi School, Jhunjhunu. Learned counsel for the respondent

submitted that on query of the court, minor Yash clearly answered

that he wanted to live with his mother. Learned counsel for the

respondent submitted that educational record of Yash also reflects

that the study was going very well. So, the appeal may be

dismissed.

12. Learned counsel for the respondent placed reliance in

Smt. Jhamku V/s Goda 2006 WLC (Raj.)UC 418, Smt. Kiran

V/s Anil Kumar 2005(5) WLC(Raj.) 573, Lekha V/s P. Anil

Kumar, 2007(1) WLC(SC) Civil 362, Govind Sahai

Bagarhatta Ors. V/s Shri Santosh Mishra, 2001 DNJ(Raj.)

886, Kirtikumar Maheshankar Joshi V/s Pradipkumar

Karuashanker Joshi AIR 1992 SCC 1447 and Nil Ratan

Kundu Anr. V/s Abhijit Kundu 2008(2) WLC(SC) Civil

785.

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13. We have given our thoughtful consideration to the

arguments advanced by both the parties, perused the impugned

order and the material available on record.

14. Minor Yash is presently in the custody of his mother

and his study is going very well. The learned Family Court in its

order clearly stated that the wishes and welfare of the minor child

are paramount consideration for custody. The learned Family Court

in its order clearly stated that the respondent is well educated at

presently minor Yash is studying at S. S. Modi School, Jhunjhunu.

In the Family Court the minor Yash was asked to whom with he

wanted to live. On this question, minor Yash clearly stated that he

wanted to live with his mother. The learned Family Court in its

order observed that during the trial the appellant was given

visiting right to meet minor Yash but he had not followed the order

and in his evidence he stated that by his meeting adverse effect

might reflect on child, so he did not want to meet him. The

learned Family Court in its order observed that the appellant had

left the jo0b and he was in pathetic condition. So, he could not

take care of minor child. Therefore, we find no illegality or

infirmity in the order of the learned Family Court.

15. Therefore, we are of the considered opinion that the

learned Family Court had not committed any error in rejecting the

divorce petition filed by the appellant. Therefore, we are

persuaded to reject the appeal and accordingly, it is dismissed.

(NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),J

RAJ KUMAR CHAUHAN /17

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