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Judgments of Supreme Court of India and High Courts

Vasant Kumar Singh vs Smt. Kavita Singh And Anr on 24 October, 2018

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AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

MA No. 6 of 2015

 Vasant Kumar Singh S/o Shri Virendra Pratap Singh Aged About 37 Years
Occupation Service, Present Address- P.G.T. (English) Central School
Chudachandpur Manipur, Permanent Address- Qr. No. 4, D-Street, Number 19,
Zone-1, Sector-11, Khursipar, Bhilai, Distt. Durg C.G.

—- Appellant

Versus

1. Smt. Kavita Singh, W/o Shri Basant Kumar Singh Aged About 36 Years

2. Shreyansh Kumar Singh @ Pranjal S/o Basant Kumar Singh Aged About 8
Years, non-applicant No.2 Minor Through- Legal Guardian as respondent No.1

Smt. Kavita Singh,

both are R/o D.M.Q. 28, Hospital Colony, Bishrampur, District Surajpur C.G.

—- Respondents

For Appellant : Shri Sushil Dubey and Shri H.K. Sharma,
Advocates
For Respondents : Shri S.D. Singh, Advocate

Hon’ble Shri Justice Goutam Bhaduri

Order On Board

24/10/2018

1. Heard.

2. The instant appeal has been preferred against the order dated 03.12.2014

passed by the Third Additional District Judge, Surajpur in Civil Suit No.26-A/12,

whereby the petition of the appellant/father under Section 6 of the Hindu

Minority and Guardianship Act, 1956 (for short the Act, 1956) for the custody of

the child, has been dismissed, however, reserving a right to father to meet the
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child on the first sunday of every month apart from the festivals like Holi, Diwali,

New Year and birthday, in a public place in between 11am to 5 pm. The order

further observed that to comply the said direction i.e. to bring the children in a

public place would be that of the mother/defendant No.1 and the place of public

choice would be under a prior intimation.

3. The facts of this case are that a petition was filed by the father under Section 6

of the Act, 1956 and custody of the child namely Shreyansh Kumar Singh alias

Pranjal, who at the time of filing of the petition was 5 years 4 months old in

the year 2012 was claimed. Undisputed facts are that the respondent No.1

Smt. Kavita Singh was married to Vasant Kumar Singh on 03.02.2006

according to the hindu rituals. Subsequently, out of the wedlock a child namely

Shreyansh Kumar Singh was born on 18.01.2007. As per the averments of the

appellant, when the matrimonial life could not go along, the wife Smt. Kavita

Singh lodged a complaint under Section 498-A IPC at Vishrampur, which is her

maternal place, the said complaint on further date was transferred to the Durg,

wherein the place of crime was said to have happened. It is contended that on

behalf of the child namely Shreyansh Kumar Singh, the mother had filed an

application before the Chief Judicial Magistrate, Surajpur under Section 125

Cr.P.C. and claimed an amount of Rs.2000/-. It was stated that the wife do not

have any source of income as she was claiming the right of maintenance,

consequently she would not be able to maintain her child with proper care. The

appellant further claimed that he is a teacher of national level in central school

presently and at the time of filing of petition he was posted at Manipur and

being teacher in such capacity he would be able to impart the proper education
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to his child. It was stated that on 27.12.2011, the mother Smt. Kavita Singh

kept the son in her custody, which has hampered his education as such the

child being more than 5 years, the custody may be handed over to him. It was

further pleaded that the appellant being the father would be able to take care of

the child in proper manner.

4. In reply to such averments, the wife came out with the fact that Vasant Kumar

Singh, the father, is an employee of central school and he could be transferred

anywhere in India. It was further stated that as compared to father the child

would require more care, love and custody of the mother and the husband

Vasant Kumar Singh being a freelancer would not be able to impart the proper

education and the custom to his son. It was further denied that only being the

teacher, the father would be entitled to give the child proper education and

upbringing. It was further alleged that the wife and the child were forcefully

thrown out of the house by husband and as such she had to take shelter to her

maternal home at Vishrampur. It is further stated that the child is admitted to

D.A.V. School and he is studying therein. Further the averments were made

that if the child is kept along with the father, his future would be ruined and he

will not get the proper environment to grow up. Consequently, it was stated that

the custody of the child would be more proper with the mother.

5. Both the father mother of the child were examined before the Court below.

The court after evaluating the statement and the evidence, came to a finding

that the welfare of the child would be better in custody of mother and allowed

the custody of the child to her. The Court further observed that the visiting right

would be given to the father as per the terms of the order. The said order is
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under challenge herein.

6. Learned counsel for the appellant would submit that the evidence on record

would show that the wife is not working, she is completely dependent on the

maintenance which is being given by the husband, therefore, in any case, in

order to bring up the child, the financial stability and the support would be

necessary. He further submits that the statement of the wife would show that

she herself has left the house, therefore, she cannot be allowed to take

advantage of the situation for her own wrong. He placed reliance in the case of

Mausami Moitra Ganguli Versus Jayant Ganguli {(2008) 7 SCC 673} and

submits that the welfare and interest of the child would be better in the hands of

the father, therefore, submits that the child being more than 5 years of age and

according to the Section 6 (a) of the Act, 1956, the custody of the child is

required to be handed over to the father.

7. Per contra, learned counsel for the respondent would submit that the order of

the Court below is well merited and reasoned. He would further submit that

when the wife is well educated, she could anytime avail the job and only the

financial condition would not be the deciding factor to hand over the custody of

the child. He further submits that the facts would demonstrate that the FIR was

lodged by the wife and the case was registered under Section 498-A IPC, which

is still pending and if the conviction is made it will relate back to the date of

commission of crime of cruelty meted out to the wife, therefore, the order do not

call for any interference.

8. I have heard learned counsel for the respective parties at length and perused

the record.

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9. This Court by an earlier order dated 10.10.2018 had directed the respondent to

appear in person along with the child before the Court so as to adjudge the

intelligent preference of the child. Pursuant to such order the child is produced

before the Court. The Court had interacted with the child and it was reduced in

the form of question answer, which would be relevant in the case and are as

under :-

“Q.1- what is your name?

Ans.1 -My name is Shreyansh Singh.

Q. 2- What game you play?

Ans.2- Cricket.

Q.3 -What is the name of your father?

Ans. 3- Vasant Kumar Singh.

Q. 4.- What is the name of your mother?

Ans.4 -Smt. Kavita Singh.

Q.5 -Whether you want to become an advocate?

Ans.- 5 No.

Q. 6- Where do you study?

Ans. 6- D.A.V. School, Vishrampur.

Q.7- Whether you want to stay with your mother or
father?

Ans.7- I want to stay with my mother.

Q.8.- Whether you meet your father?

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Ans.8- Yes.

Q.9.- Who stays along with you in the house?

Ans.9- My maternal grandfather, maternal
grandmother, Maternal uncle Mama and Maternal
Aunty Mami.

Q.10.- What is the name of your Maternal uncle
(Mama)?

Ans.10.- Name of my Mama is Sourabh Singh.”

During such interaction, the child was friendly and was answering the questions

without any hesitation or fear.

10. The Statute as governs the subject issue is Section 6 of the Hindu Minority and

Guardianship Act, 1956. The relevant part of Section 6 is reproduced as

under:-

“6. Natural guardians of a Hindu minor. – The natural
guardian of a Hindu minor, in respect of the minor’s
person as well as in respect of the minor’s property
(excluding his or her undivided interest in joint family
property), are –

(a) in the case of a boy or an unmarried girl- the father,
and after him, the mother: provided that the custody of
a minor who has not completed the age of five years
shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate
unmarried girl- the mother, and after her, the father;

(c) xxx xxx xxx

xxx xxx xxx

xxx xxx xxx
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11. At present apparently the age of child is more than 5 years. Therefore, the

question arises whether the Court can only follow the rule book or lens the child

mission with a object of welfare of child.

12. The Supreme Court in the case of Mausami Moitra Ganguli (supra) had

occasioned to consider this likewise situation while deciding the custody of the

child and upbringing of the minors. The Court has laid down that the principles

of law in relation to the custody of a minor child, the paramount consideration is

the welfare and interest of the child and not the rights of the parents under a

statute. It further held that the question of welfare of the minor child has to be

considered in the background of the relevant facts and circumstances as every

case has to be decided on its own facts. It further held that no doubt, father is

presumed by the statutes to be better suited to look after the welfare of the

child, being normally the working member and head of the family, yet in each

case the Court has to see primarily to the welfare of the child in determining the

question of his or her custody. It further held that better financial resources of

either of the parents or their love for the child may be one of the relevant

considerations but cannot be the sole determining factor for the custody of the

child. Therefore, judicial discretion is cast on the Court to consider the custody

in the background of all the relevant facts and circumstances. The relevant part

of the judgment i.e. para 19, 20, 21 22 are reproduced hereunder:-

19. The principles of law in relation to the custody of a minor child
are well settled. It is trite that while determining the question as to
which parent the care and control of a child should be committed, the
first and the paramount consideration is the welfare and interest of
the child and not the rights of the parents under a statute. Indubitably
the provisions of law pertaining to the custody of a child contained in
either the Guardians and Wards Act, 1890 (Section 17) or the Hindu
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Minority and Guardianship Act, 1956 (Section 13) also hold out the
welfare of the child as a predominant consideration. In fact, no
statute, on the subject, can ignore, eschew or obliterate the vital
factor of the welfare of the minor.

20.The question of welfare of the minor child has again to be
considered in the background of the relevant facts and
circumstances. Each case has to be decided on its own facts and
other decided cases can hardly serve as binding precedents insofar
as the factual aspects of the case are concerned. It is, no doubt, true
that father is presumed by the statutes to be better suited to look
after the welfare of the child, being normally the working member
and head of the family, yet in each case the Court has to see
primarily to the welfare of the child in determining the question of his
or her custody. Better financial resources of either of the parents or
their love for the child may be one of the relevant considerations but
cannot be the sole determining factor for the custody of the child. It is
here that a heavy duty is cast on the court to exercise its judicial
discretion judiciously in the background of all the relevant facts and
circumstances, bearing in mind the welfare of the child as the
paramount consideration.

21.In Rosy Jacob Vs. Jacob A. Chakramakkal 1 , a three- Judge
Bench of this Court in a rather curt language had observed that:

“15…….The children are not mere chattels; nor are they mere
playthings for their parents. Absolute right of parents over the
destinies and the lives of their children has, in the modern
changed social conditions, yielded to the considerations of
their welfare as human beings so that they may grow up in a
normal balanced manner to be useful members of the society
and the guardian court in case of a dispute between the
mother and the father, is expected to strike a just and proper
balance between the requirements of welfare of the minor
children and the rights of their respective parents over them.”

22.In Halsbury’s Laws of England (Fourth Edition, Vol.13), the law
pertaining to the custody and maintenance of children has been
succinctly stated in the following terms:

“809. Principles as to custody and upbringing of minors.-

Where in any proceedings before any court, the custody
or upbringing of a minor is in question, the court, in
deciding that question, must regard the welfare of the
minor as the first and paramount consideration, and
must not take into consideration whether from any other
point of view the claim of the father in respect of such
custody or upbringing is superior to that of the mother, or
the claim of the mother is superior to that of the father. In
1 (1973) 1 SCC 840
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relation to the custody or upbringing of a minor, a mother
has the same rights and authority as the law allows to a
father, and the rights and authority of mother and father
are equal and are exercisable by either without the
other.”

13. In view of the principles laid down in the case of Mausami Moitra Ganguli

(supra) in order to assess the welfare of child and to read the mind of the child

to judge the intelligent preference, he was produced before this Court. The

child who is said to be studying in class 6 th unequivocally without interruption

and free liberty of thoughts stated that he wants to stay with the mother. This

Court cannot ignore the fact that the child was in the custody of the mother and

when the application was filed he was 5 years and 4 months old. Now with the

roll of time the child has attained the age of 11 years and said to be studying in

the 6th class at D.A.V. School, Vishrampur. By evaluating the answer given by

the child before the Court, it appears that neither he was under any influence of

fear but instead volunteered his choice to stay with his mother. The financial

stability even if that of father cannot be given the sole deciding factor to give

edge over the choice of the child of 11 years and to superimpose the force

handing over the custody of child like a hired chattel to leave the child with

unforgettable and unbearable agony and horror against his wish.

14. In continuity of other facts, if the statement of the husband wife both are

considered, the facts would reveal that a report was made by the wife under

Section 498 A IPC and it is admitted by both the parties before the Court that

the said criminal case is still pending before the JMFC and serious allegations

have been made by mother against father. The statement of the father given

before the Court would reveal that he stays at Sagar alone and gets his food
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from the mess in the afternoon and prepares his food himself in the evening.

The circumstances points out that he stays alone. The statement also reflects

that he has to do his job in the school for a considerable period. As against this

the mother stated that she is completely in charge of the child to take care and

give all possible affection moral support and has completely dedicated herself

to the welfare of the child. Both the statements if are compared and evaluated

together to decide the custody of the child the mother would hold the sway in

her favour. So after evaluating all the facts together and having given an

anxious consideration to the statement given by the child before the Court, I am

of the opinion that the custody of the child would be better in the hands of the

mother for a idyllic life.

15. In a result, the appeal has no merits. It is accordingly dismissed.

Sd/-

Goutam Bhaduri
Judge
Ashu

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