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2005 DIGILAW 3109 (RAJ)

Jhamku v. Goda

2005-11-23

R.P.VYAS

body2005
Judgment R.P. Vyas, J.-This appeal is directed against the judgement and order dated 15.09.2001, passed by the Judge, Family Court, Udaipur, by which he has allowed the application filed by the respondent (applicant) Goda under Section 25 of the Guardians and Wards Act, 1890, (hereinafter referred to as the Act, 1890) and ordered the appellant (non-applicant) Smt. Jhamku to hand over the custody of the minor child Bhagudi @ Bhagwanti to the appellant - Goda. 2. Brief facts, giving rise to the instant appeal, are that respondent - Goda filed an application under Section 25 of the Act, 1890 against the appellant - Smt. Jhamku, alleging, inter alia, therein that the respondent was married to the appellant and from their matrimony, a girl child named Bhagudi @ Bhagwanti was born. Thereafter, the appellant got herself separated from the respondent and has contracted Nata with one Kana S/o Shri Gangaji Dangi. It was further alleged that when the minor child Bhagudi was living with the respondent, the appellant got a search warrant issued from the Additional District Magistrate (City), Udaipur and, in pursuance to that warrant, the child was handed over to the appellant. It was also alleged that the appellant was not the wife of the respondent and was not having welfare interest towards the minor child and she intended to get the child married to some person by taking a handsome amount. 3. The appellant submitted a specific reply to the application, denying the allegations made in the application and pointed out that the respondent had contracted Nata marriage with the appellant and prior to that, the respondent was married to one, out of which wedlock, he had two children. But he has deserted the previous wife and two children from that matrimony and neither he is in a position to look after those two children of previous marriage, nor is maintaining them. It was stated that the respondent was having unnatural habits and ultimately, he divorced the appellant, according to the customs of the community. It was also stated that the minor child Bhagwanti was in her infancy and was required to remain in the custody of her mother, as she was maintaining the child and was getting her educated in the school. It was also stated that the minor child Bhagwanti was in her infancy and was required to remain in the custody of her mother, as she was maintaining the child and was getting her educated in the school. She also stated that only a talk had taken place about her accepting Nata with Kana, but she in her statement had denied the fact of Nata having taken place with Kana. 4. The learned Judge, Family Court, Udaipur, after framing the issue to the effect that whether the respondent Goda was entitled to obtain custody of the minor, examining the respective witnesses and hearing both the parties, allowed the application vide his Judgment and order dated 15.09.2001 and ordered to give custody of the minor to the respondent Goda. 5. Being aggrieved by the Judgment and order dated 15.09.2001, passed by the learned Judge, Family Court, Udaipur, the appellant - Smt. Jhamku has preferred the instant miscellaneous appeal. 6. It is submitted by the learned Counsel for the appellant that the learned Judge, Family Court, Udaipur has acted wholly illegally and has seriously erred in law as well as on facts in passing the impugned Judgment and order dated 15.09.2001 and directing the custody of the minor girl to the respondent - Goda. The learned Judge, without arriving at any definite conclusion, regarding the age of the child, has abruptly held that the custody of the child above the age of 5 years of age could be given to the father, provided the father was not otherwise ineligible. Learned Counsel submitted that the learned Judge has also wrongly concluded that since the appellant was not having any source of income, she would not be able to maintain the minor and, on these considerations alone, the child has been ordered to be given in the custody of the respondent. 7. It is further submitted by the learned Counsel for the appellant that the learned Judge, Family Court, Udaipur has failed to consider the core question about the welfare of child. He has also erred in assuming the age of the minor child that the age of the minor was beyond six years, as the applicant has stated her age to be four years at the time of filing the application on 24.08.1999. 8. He has also erred in assuming the age of the minor child that the age of the minor was beyond six years, as the applicant has stated her age to be four years at the time of filing the application on 24.08.1999. 8. It is also submitted by the learned Counsel for the appellant that respondent -- Goda was earlier married and was having two children from the earlier matrimony and he was not maintaining them. The respondent already contracted marriage and then got separated from the earlier wife and he contracted second marriage with the appellant and, therefore, got separated from her also. In this view of the matter, the respondent cannot be trusted with the custody of the minor daughter. 9. Lastly, it is submitted by the learned Counsel for the appellant that while giving the impugned judgement and order, the learned Judge, Family Court, Udaipur has utterly failed to consider the age of the minor, status of the parties, the conduct of the respondent and particularly the consideration of the welfare of the minor child, which is the paramount consideration. 10. Per contra, learned Counsel for the respondent has supported the impugned Judgment and order given by the learned Judge, Family Court, Udaipur and submitted that the father of the respondent is having about 22 Bighas of agricultural land, so he would be able to maintain and look after the welfare of his daughter. It is also submitted that the appellant has contracted Nata with one Kana, so she would not be able to look after the welfare of the child. Apart from that, as she has no source of earning, she would not be able to maintain her daughter. 11. Heard learned Counsel for the parties. 12. Admittedly, Smt. Jhamku - appellant has stated in her statement before the Judge, Family Court, Udaipur that her daughter Bhagudi @ Bhagwanti is residing with her. She has not got her daughter contracted to marriage to someone else and the marriage of her daughter will be performed when she becomes mature. She also stated that if the daughter remains with her, then it will be in the interest of the child, as she is providing all necessary requirements to the child. In sum and substance, she stated that by retaining the daughter, she would be able to look after her welfares properly. She also stated that if the daughter remains with her, then it will be in the interest of the child, as she is providing all necessary requirements to the child. In sum and substance, she stated that by retaining the daughter, she would be able to look after her welfares properly. The respondent -Goda would not be able to look after her minor daughter properly, as he has not been maintaining and looking after his earlier wife and the two children, who were born out of the wedlock of his previous wife. 13. It is well settled that in the proceedings for custody of the minor child, the only consideration is the welfare of minor in respect of claims by the rival parties. The expression welfare of the minors though has not been defined, yet undoubtedly has to be given a wide meaning. It ought not to be measured in money only or by physical comfort alone. It has many facets, such as financial, education, physical, moral and religious welfare. 14. It is not strait jacket rule of law that a child above five years should always be given in the custody of the father, but on the other hand, the Court must consider on the facts and circumstances of each case whether it is in the interest of the welfare of child to hand over custody to the father. Especially, in the case of a female child the Court must bear in mind that it is desirable that the female child is normally kept in the custody of the mother irrespective of her age. 15. The expression “welfare of the infant” should be construed in the wide perspective. The Court should put itself in the position of a reasonable and wise parent and determine what would be best for the infant or infants, not what a selfish parent wants the infants to have. In such cases, the welfare of the minor child is the dominant factor and it is the prime duty of the Court to see where the welfare of the minor lies. 16. In such cases, the welfare of the minor child is the dominant factor and it is the prime duty of the Court to see where the welfare of the minor lies. 16. It may be mentioned before an order for custody of a minor child is passed, the Court must be satisfied that his or her welfare lies in an order for custody being passed in favour of one of the two parents and, in doing so, one of the paramount and germane considerations would be to take into accou0t the wishes of the child. It is also the duty of the Court to examine whether the wish expressed by the minor is free and frank desire. Where the minor is old enough and able to make intelligent preference, wishes of the minor should be considered by the Court. It may be pointed out that where a child above 5 years in custody of the mother throughout was found to be well nourished and playful, the application of the father for the custody of the child is to be considered more cautiously in the background of his conduct. 17. In this case, the finding arrived at by the learned Judge, Family, Court Udaipur is primarily influenced by the fact that father of the respondent - Goda is having 22 Bighas agricultural land and the respondent - Goda has a sufficient source of earning, and it has been assumed that Smt. Jhamku - appellant has no source of income, so it will be in the interest of the child that she be handed over to the father. The whole approach is not correct and is arrived at by ignoring the attending circumstances. 18. In order to ascertain the wishes and desire of the child to make an intelligent preference about the custody of the child, the girl child Bhagudi @ Bhagwanti was called by taking her all alone, in the Chamber, uninfluenced by any person and her wishes and desire were ascertained. She stated that she is studying in Class IV at Shivaji Primary School in the village. She has properly answered our elementary questions relating to mathematics. It shows that the mother has looked after her as well as she has necessary means to support the childs welfare. She stated that she is studying in Class IV at Shivaji Primary School in the village. She has properly answered our elementary questions relating to mathematics. It shows that the mother has looked after her as well as she has necessary means to support the childs welfare. If money is the only consideration of maintenance, if necessary, the father can be required to provide maintenance for his minor children, living with divorced mother. The father of the child was not present, in spite of being called to participate in proceedings and to meet the child. This further shows his disinterestedness. She expressed her willingness and happiness to go and stay with her mother. 19. The learned Judge, Family Court, Udaipur ignored this vital aspect of the matter. He did not consider the up bringing of the child uptil now. It has also not been considered by the learned Judge, Family Court that undisputedly, applicant father had left his earlier wife and two children unprovided for to contact a second marriage. A father, if he has taken no interest to take care of his two minor children from one divorced wife, cannot be presumed to take a vital interest in child from second marriage which too had not survived. Wifes allegation that applicant is in the habit of insisting on unnatural sex, has gone unrebutted. This is yet another factor which goes against the applicant in considering the welfare of female child to be left in his custody and may not be conductive. Thus, looking to the totality of the facts and circumstances of the case, particularly the welfare of the child, it will be in the interest of justice to allow the custody of the child Bhadu @ Bhagwanti to remain with her mother as the child is presently residing with her mother. 20. However, Goda - the father of the child Bhagudi @ Bhagwanti would be at liberty to meet his daughter every last week of the month during the recess-period in the School, after seeking prior permission of the Headmaster of the School. After having met with the child, it will be the responsibility of respondent - Goda to handover the child to the Headmaster of the School. 21. In the result, the appeal is allowed as indicated above. The impugned Judgment and order dated 15.09.2001 is set-aside. 22. The parties are left to bear their own costs.