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Judgments of Supreme Court of India and High Courts

Seema Kaur vs Jaswinder Kaur And Another on 12 February, 2020

FAO No.1259 of 2020 1


FAO No.1259 of 2020
Date of Decision: 12.02.2020

Seema Kaur ….Petitioner

Jaswinder Kaur and another ….Respondents


Present:- Mr. Pardeep Kumar Kapila, Advocate
for the petitioner.



Appellant-Seema Kaur has filed the present appeal to

challenge the judgment dated 09.01.2020 passed by the Principal Judge,

Family Court, Barnala, whereby, the petition filed Jaswinder Kaur

(respondent No.1) was allowed in her favour but against the appellant and

the custody of minor children was directed to be handed over to respondent

No.1 herein before Secretary, District Legal Services Authority, Barnala

after intimating the date and time to respondent No.1 within a period of two


Briefly, the facts of the case, which are relevant for the present

case, are that Jaswinder Kaur (respondent No.1) got married with one

Nimma Singh in the year 2012. However, out of said wedlock, two children

namely Mandeep Kaur and Jaspreet Singh were born and they are residing

with present appellant i.e. Seema Kaur and respondent No.2-Jailo Kaur.

Said Nimma Singh expired in an accident on 16.12.2017 and thereafter, the

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dispute arose between the parties. Respondent no.2-Jaswinder Kaur, the

mother of the children left to her parental home along with her children. The

present appellant-Seema Kaur and respondent No.2 Jailo Kaur forcibly took

away both the children. The mother of the children filed a petition under

Section 25 of the Guardians and Wards Act which was allowed. The

children were residing with present appellant and respondent No.2.

Learned counsel for the appellant submits that mother of the

children (Jaswinder Kaur) was having illicit relation with some other person

and she was responsible for the death of her husband Nimma Singh. She

herself left the matrimonial home. Learned counsel also submits that the

lower Court has not taken into consideration the relevant facts and the

circumstances of the case and a wrong finding has been recorded. The prime

consideration is the welfare of the children and respondent No.1 cannot look

after the interest of minor children. At the end, learned counsel for the

appellant submits that in case, the appeal of the appellant is dismissed then a

period of two months’ be given for handing over the custody of the children

because of their examinations. It has been undertaken to hand over the

custody immediately after the expiry of period of two months.

Admittedly, the present appellant is sister-in-law of the mother

of minor children and custody has been sought on the ground that the

mother of the children has left the matrimonial home without taking into

consideration the welfare of the children whereas the children cannot be

looked after by her as she is having illicit relation with some other person.

Nothing has been mentioned as to how the welfare of the minor children

cannot be look after by the mother. Simply by saying that the mother of the

children is having illicit relation and interest of the children cannot be

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FAO No.1259 of 2020 3

looked after is not sufficient. Moreover, the present appellant is having her

own children and the welfare of the children is always with the mother who

is a natural guardian. The role of the mother in bringing up of the children

cannot be doubted as mother is always concerned with the welfare of the

child being the natural guardian. Simply by saying that mother cannot take

care of the children and to give custody to aunt (chachi) who is not only

having her own children but they would be deprived of love and affection of

the mother. The prime consideration is the welfare of the children so that

they may grow up in a normal balanced manner to be useful members of the

society. The presence of the mother is necessary for the development of a

child’s personality and her ability in performing duty while looking after the

children cannot be doubted.

While granting custody of the children, it is to be seen as to

whether the children would be given love and affection by the mother as the

company of the mother is the most natural thing for a child. While deciding

issue of custody of minor, the Court is to see various factors. By taking into

consideration the welfare of the child, it is to be seen as to which of the

party can look after the children in a better manner with love and affection.

It is also to be seen as to who is most likely to contribute to the well-being

of the minor and also to bring up and educate the minor in the manner as

required to develop their personality. The proper custody depends upon the

circumstances and in particular, upon the minor’s position and prospects in

life. The welfare of the child is not to be measured by money alone but there

are certain other factors which are necessary to be taken into consideration.

The prime consideration is the `welfare’ of the child and the word `welfare’

has to be taken in its widest sense. It includes physical as well as love and

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In the present case, all the factors have been taken into

consideration and a detailed speaking order has been passed. It cannot be

said in any manner that the findings recorded by the lower Court are

perverse or the stand of the appellant has not been taken into consideration.

Although, there are allegations of having illicit relation of the mother with

some other person but nothing has been brought on record to this effect.

Accordingly, by keeping in view the facts and circumstances of

the present case and on perusal of findings recorded by the lower Court, we

find no reason to interfere with the impugned judgment and the present

appeal is hereby dismissed. It is also directed to the appellant to hand over

the custody of the children to respondent No.1 on the expiry of period of

two months from today.


12.02.2020 JUDGE

Whether speaking/reasoned Yes/No

Whether Reportable Yes/No

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