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2014 DIGILAW 413 (HP)

Rakesh Kumar v. Anita Sharma

2014-04-21

SANJAY KAROL

body2014
JUDGMENT Sanjay Karol, J. (oral) Appellant-father has filed the instant appeal, assailing the judgment dated 25.3.2011, passed by Additional District Judge, Fast Track Court, Hamirpur (H.P.) in G & W Act No.5 of 2008, titled as Sh. Rakesh Sharmavs. Smt. Anita Sharma. The Court below has rejected the appellant’s claim for custody of Master Ashu Sharma, born through his wedlock with respondent-Smt. Anita Sharma. 2. Based on the pleadings of parties, trial Court framed the following issues:- “1. Whether the welfare of the minor Ashu Sharma lies in the custody of the petitioner, his father, as alleged? OPP 2. Whether the petitioner is entitled for the custody of the minor Ashu Sharma, as alleged? OPP 3. Whether he petition is not maintainable, as alleged? OPR 4. Whether the petitioner is estopped by his own act and conduct to file the present petition, as alleged? OPR 5. Relief.” 3. Appreciating the testimonies of witnesses and material placed on record by the parties, trial court found that it was not in the interest of the child to hand over custody to the appellant-father. 4. Having heard learned counsel for the parties, as also perused the record, I am of the considered view that findings returned by the trial Court cannot be said to be perverse, erroneous or based on incomplete and/or improper appreciation of material on record. 5. It is not in dispute that since birth, the child is staying with his mother. Now he is 13 years of age. There is nothing on record to substantiate that the child is not being brought up in a healthy, congenial atmosphere or that his overall development is lacking in any manner. Simply because father of the child is a moneyed man cannot be a ground to hand over the custody to him. The child is going to a proper school and his grooming is not lacking in any manner. Apart from the mother, there are other elderly members in the family who are taking care of the child. He is receiving proper care, love and affection. As such, custody of the child cannot be handed over to the father. Paramount consideration being the welfare of the child who is in the custody of the mother. These factors have been considered by the trial court and there is no error with the same. 6. He is receiving proper care, love and affection. As such, custody of the child cannot be handed over to the father. Paramount consideration being the welfare of the child who is in the custody of the mother. These factors have been considered by the trial court and there is no error with the same. 6. However, I am of the considered view that father also cannot be totally deprived of his rights. Also, it is not in the interest of child so as not to allow him to meet his father. There is nothing adverse against the father which has come on record, depriving him of his right to visit, see and meet the child. 7. Thus, present appeal is partly allowed and the judgment and decree dated 25.3.2011 is modified to the extent that appellant would be allowed to meet the child once in a month on mutually consented date, time and place. The appellant shall meet the child in the presence of his wife or other elderly members of her family, which arrangement shall continue, unless otherwise altered mutually or by the Court. Pending application(s), if any, also stand disposed of.