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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