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2014 DIGILAW 1210 (JHR)

Rubi Varu v. Sandeep Varu

2014-12-04

SHREE CHANDRASHEKHAR

body2014
ORDER : Aggrieved by order dated 05.03.2013, whereby the application seeking immediate custody of her minor daughter has been dismissed, the petitioner has approached this Court by filing the present writ petition. 2. The brief facts as narrated in the writ petition are that, the marriage of the petitioner was solemnised with one Sandeep Varu on 15.04.2009 and a female child namely, Jiya Varu was born on 11.03.2010. Though, an amount of Rs. 2,00,000/in cash and gold ornament worth Rs. 1,50,000/and other domestic articles were given in the marriage by the family of the petitioner, only three months after the marriage, the petitioner was subjected to various acts of cruelty. The respondent compelled the mother of the petitioner to pay a sum of Rs. 70,000/in cash for purchasing motorcycle. The husband of the petitioner maintained illicit relationship with another women namely, Jiya Parween and when the petitioner objected to it, she was brutally assaulted and driven out of her matrimonial home on 14.03.2012. The matter was reported to Mahila Koshang on 14.03.2012 at Jamshedpur and thereafter, her husband on 20.03.2012 took her again to home. However, on 08.05.2012, the petitioner was again ousted from her matrimonial home and the family members of the respondent forcibly snatched her minor daughter who is since then in the custody of the respondent and therefore, the petitioner was constrained to file Guardianship Case No. 14 of 2012. 3. The learned counsel appearing for the petitioner refers to Section 6 of The Hindu Minority and Guardianship Act, 1956 and submits that the petitioner being the mother is entitled for immediate custody of her daughter who is aged only about 2 years. The manner in which the petitioner was treated by the respondent and thrown out of her matrimonial home is sufficient to infer that her minor daughter cannot be looked after properly by the respondent and it is in the welfare of the child that the custody of the child namely, Jiya Varu be given to the petitioner. 4. To a pointed query from the Court to indicate an averment in the application under Section 7 r/w Section 17 of the Guardians and Wards Act where it is averred that it is in the paramount interest of the child that the custody of the child should be given to the petitioner forthwith, the learned counsel for the petitioner refers to paragraph no. 12 of the writ petition wherein the petitioner has stated as under : 12. “ That petitioner humbly submits that the age of her minor daughter is about three years as her date of birth is 11.03.2010 and as such as per the mandatory provision as contained in Section 6 (a) of the Hindu Minority and Guardianship Act, 1956 the custody of her minor child should have been given to this petitioner and as such the Impugned Order dated 05.03.2013, passed by learned Principal Judge, Family Court, Jamshedpur is against the spirit of mandatory provision as contained in Section 6 (a) of The Hindu Minority and Guardianship Act, 1956”. 5. From the impugned order dated 05.03.2013, it appears that the application filed by the petitioner has been dismissed and the matter has been referred for reconciliation between the parties. Guardianship Case No. 14 of 2012 filed by the petitioner is pending in the trial court. The respondent-husband appeared in the case and pleaded that the petitioner left her matrimonial home on her own, voluntarily living behind her minor child with the respondent and his family. The petitioner has not disclosed any relevant fact which may lead to inference that if the custody of her daughter who is living with her father for more than one year is not given to the petitioner, it would be detrimental to the welfare of the child and her future would be jeopardized. It is well settled that financial capacity of a party or the deep emotional attachment or concern of a party to his/her child is not a ground for granting custody of the child. At this interim stage, when the matter has been sent for conciliation and the minor child is living with her father for more than one year, I am of the opinion that the application dated 21.08.2012 seeking immediate custody of the minor child namely, Jiya Varu, has rightly been refused by the trial court, at this stage. Since, this Court has not expressed any opinion on the merits of the pending Guardianship Case No. 14 of 2012, it is made clear that any observation made by the trial court in the impugned order dated 05.03.2013 and the dismissal of the present writ petition, would not cause any prejudice to the case of the petitioner.