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Madhya Pradesh High Court · body

2014 DIGILAW 727 (MP)

Kalicharan Verma v. Archana Arya

2014-06-25

S.K.GANGELE, S.K.PALO

body2014
Judgment: 1. Appellant Kalicharan has filed this First Appeal under Section 19 of the Family Court Act against the order dated 8.1.2014 passed by Smt. Meena Singh, Additional Principal Judge, Family Court, by which the Court has refused to accept the application filed by the appellant under Section 25 of the Guardian and Wards Act, 1890. 2. It is not disputed that the appellant and the respondent are husband and wife. On 7.12.1996 their marriage was solemnized. Out of their wedlock two children are born. Daughter Kirti has been residing with the appellant Kalicharan and son Dikansh is residing with respondent Archana. It is also not disputed that there has been a decree of divorce between the appellant and the respondent and they are living separately. 3. The appellant husband has filed a petition before the learned Family Court for custody of minor son Dikansh on the ground that the respondent is not residing with the appellant, she is residing at Delhi and working in some Company. Their minor son Dikansh is staying with the maternal grand parents, who are old and unable to look after the child whereas the appellant, a joint family in which his father, brother and the family members are residing. They can very well look after the minor Dikansh. The respondent is also not inclined to look after the child. She is in the habit of going to her parental house. The appellant did not marry again for the sake of his children. Appellant and his daughter tried to meet Dikansh but the respondent did not allow them to meet. The respondent is a lady of independent thinking. She always leaves Dikansh with her parents, therefore, if the minor Dikansh is allowed to remain with the respondent, it would not be good for his future. Therefore, the custody of minor Dikansh be given to the appellant. 4. Per contra, the respondent completely denied these averments and has submitted that the appellant's conduct is not good. He is in the habit of taking alcohol. Therefore, the future of the minor son as well as minor daughter is not secure with the appellant. There is every possibility of their future being spoiled, if they are allowed to remain with the appellant. The appellant also beats the minor children. He also does not allow them to go to school sometimes. Therefore, the future of the minor son as well as minor daughter is not secure with the appellant. There is every possibility of their future being spoiled, if they are allowed to remain with the appellant. The appellant also beats the minor children. He also does not allow them to go to school sometimes. The conduct of the appellant is also opposed by his family members. This conduct would also have an adverse effect in the development of minor Dikansh. For this reason only, the respondent is living separately. This application has been filed with imaginary ground to avoid paying maintenance allowance. 5. The learned Family Court after affording opportunity to both the parties to lead their evidence pronounced the impugned order on 08.01.2014. Learned Family Court discussed the evidence and came to the conclusion that it is not in the interest and welfare of the minor Dikansh to keep him with the appellant-father. Therefore, turned down the request and dismissed the application. 6. After hearing the rival contentions and the perusal of record we are in agreement with the learned Family Court. 7. Apart from the evidence which is come in record, this fact cannot be over looked that the mother is more educated, financially more sound and looking after her son with more attention. 8. In the evidence, it is shown that the appellant and his other family members have been partitioned, therefore, it would hamper the growth of the minor for lack of proper attention. 9. Even if assuming that the fitness of the father to be entrusted with the custody of his minor child Dikansh and considerations of his welfare, the father's fitness has to be considered, determined and weighed, predominantly in terms of the welfare of his minor child in the context of all the relevant circumstances. If the custody of the father cannot promote their welfare equally or better than the custody of the mother, then, he cannot claim indefeasible right to his custody under Section 25 merely because there is no defect in his personal character and he has attachment for the child, which every normal parent has. If the custody of the father cannot promote their welfare equally or better than the custody of the mother, then, he cannot claim indefeasible right to his custody under Section 25 merely because there is no defect in his personal character and he has attachment for the child, which every normal parent has. Father loves his child and is not shown to be otherwise undesirable, cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting the minor's custody to him, as against the wife respondent, who may also be equally affectionate towards her son and otherwise equally free from blemish and who, in addition because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for him. Thus, the court in case of a dispute between the father and mother 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. 10. In short, while giving custody of the child, the welfare of the child should be regarded as a paramount consideration. As that it may be, considering the welfare of the minor Dikansh, his custody to his father has been rightly denied by the learned Family Court. 11. During the course of the argument it is further stated by the counsel for the respondent that minor Dikansh has been given admission in Delhi School and he is living with the respondent at Delhi. 12. With this note that we are inclined to allow the "visiting right" to the appellant to visit the minor, we dismiss this appeal. The appellant-father is allowed to visit his minor son once a week for half an hour if the minor "Dikansh" agrees to meet him. 13. The appeal is disposed of accordingly. No order as to costs.