HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 1323 / 2017
Sachin Kalra S/o Shri Subhash Kalra, aged about 34 years, by
Caste Arora, R/o House No. 226, Mukharji Nagar, Sri Ganganagar,
District Sri Ganganagar (Rajasthan).
—-Appellant
Versus
Smt. Jyoti Kalra W/o Shri Sachin Kalra, D/o Shri Subhash Chabra,
by Caste Arora, R/o Near Ramdev School, Kamla Colony, Bikaner
(Rajasthan).
—-Respondent
__
For Appellant(s) : Mr. G.J. Gupta
__
HON’BLE MR. JUSTICE GOVIND MATHUR
HON’BLE MR. JUSTICE VINIT KUMAR MATHUR
Judgment
13/09/2017
This appeal is preferred to question correctness of the order
dated 07.04.2017 passed by learned Family Court, Sriganganagar
in Civil Misc. Case No.19/2016.
By the Order aforesaid, learned Family Court dismissed an
application preferred as per provisions of Section 25 of the
Guardian and Wards Act, 1890 (for short, “the Act of 1890”).
In brief, factual matrix of the case is that respondent entered
into a wedlock with appellant-applicant on 13.09.2007, as per
Hindu customs and rites. The couple is having a male child who
was born on 29.01.2010. Since birth, the boy is residing with his
mother, the respondent. Since 30.05.2014, the couple is
residing separately and a divorce petition preferred by the
respondent has already been granted and a decree to annul the
(2 of 3)
[CMA-1323/2017]
marriage dated 13.09.2007 has already been granted.
The appellant preferred an application under Section 25 of
the Act of 1890 with the assertion that being father he is a natural
guardian of the male child and, therefore, his custody is required
to be given to him.
Learned Family Court, after examining the entire evidence
available on record, arrived at the conclusion that the welfare of
the child demands to continue the custody with his mother.
In appeal the argument advanced by learned counsel
appearing on behalf of the appellant is that the Court below has
taken into consideration the irrelevant aspects while dealing with
the issue pertaining to custody of child. It is emphasized that as
per the evidence available on record the issues taken into
consideration too are not based on well founded facts.
We do not find any merit with the argument advanced.
Learned trial Court noticed that the appellant is facing a trial
for an offence punishable under Section 376 IPC and there are
serious allegations even to misuse of information technology to
the extent of keeping and watching porn on Artificial Intelligence
Devices. Learned Court below has also taken into consideration
the facts pertaining to the cruelty, advanced by the respondent
while pursuing her application under Section 13 of the Hindu
Marriage Act which ultimately came to be accepted.
Besides the above, the Court also noticed that the male child
is residing with his mother since birth and she is taking adequate
care of his welfare. Pertinent to note that the Court has secured
(3 of 3)
[CMA-1323/2017]
right to visit in favour of the appellant.
In entirety, we are of the view that learned Family Court
while rejecting application under Section 25 of the Act of 1890
kept in mind the welfare of the child. The order, as such, does not
suffer from any wrong that may warrant interference in appellate
jurisdiction. The appeal hence is dismissed.
It is made clear that dismissal of this appeal will not be an
impediment for moving application afresh on change of
circumstances due to any reason including the acceptance of the
appeal preferred by the appellant to challenge the divorce decree
or otherwise.
(VINIT KUMAR MATHUR) J. (GOVIND MATHUR) J.
Ramesh/13
