Sarju Thakur, son of Late Ludhu Thakur v. Ranjeet kumar Pramanik, son of Dulal Paramanik
2016-08-02
AMITAV K.GUPTA, D.N.PATEL
body2016
DigiLaw.ai
ORDER : Amitav K. Gupta, J. The present appeal has been preferred, under Section 19(1) of the Family Court Act, 1984, against the order dated 19.07.2011 passed in Civil Misc. No.18 of 2005 whereby the learned Principal Judge, Family Court, Dhanbad, allowed the petition under Section 26 of the Hindu Marriage Act, filed by the respondent-plaintiff for custody of his minor daughter, Khushbu Kumari. 2. Learned counsel for the appellant has assailed the impugned order inter-alia on the ground that the court below has failed to appreciate that the minor child has been residing with the appellant-defendant, who is the maternal grandfather. The respondent-plaintiff had driven out his wife, late Gita Devi, from the matrimonial home since she could not bear any male child. That late Gita Devi was murdered by the respondent-plaintiff and his relatives, for which, a case under Sections 302/211 of the Indian Penal Code was lodged with the police. It is argued that the respondent-plaintiff has remarried and is not interested in the welfare of the child which is reflected from his conduct as he had abandoned Khushbu Kumari after the death of her mother lat Gita Devi and he is least concerned about the welfare of Khushbu Kumari and has not provided for the maintenance of Khushbu Kumari who has been residing with the appellant who has been looking after and taking care of her since her birth and providing for her education. It is contended that it was the last wish of late Gita Devi that Khushbu Kumari should reside under the guardianship of her nana (maternal grandfather), i.e., the appellant. It is argued that the petition for custody of Khushbu Kumari has been filed by the respondent to pressurize the appellant to withdraw or to compromise the murder case filed against the respondent. It is submitted that welfare of other four daughters of late Gita Devi is at stake, as they are not being given proper love, care and affection by the respondent and their step-mother. It is argued that the court below has failed to appreciate and consider that the welfare of the child would be jeopardized if she was given in the custody of the respondent-plaintiff, accordingly it is argued that the impugned order is fit to be set aside. 3.
It is argued that the court below has failed to appreciate and consider that the welfare of the child would be jeopardized if she was given in the custody of the respondent-plaintiff, accordingly it is argued that the impugned order is fit to be set aside. 3. Per contra, learned counsel, for the respondent-plaintiff, has submitted that it would be evident from the impugned order that the appellant-defendant after filing his reply to the petition under Section 26 of the Hindu Marriage Act, did not lead any evidence to substantiate the allegations that the other four daughters of the respondent, begotten out of the wedlock with Gita Devi, are not being looked after properly by the respondent- plaintiff or their stepmother. That Gita Devi had died due to a disease. That the court below has applied its judicial mind to the available evidence on record and has rightly passed the order, allowing the petition under Section 26 of the Hindu Marriage Act, for giving the custody of the child in the guardianship of the respondent-plaintiff. 4. Having heard learned counsels for the parties and on perusal of the impugned order, it is abundantly clear that the appellant-defendant, i.e., the maternal grandfather of Khushbu Kumari, has not led any evidence or examined any witness in support of the allegation that the welfare of the other four daughters, born from the wedlock of the respondent and late Gita Devi, is at stake. It is not disputed that late Gita Devi gave birth to five daughters and the youngest daughter namely, Khushbu Kumari, is presently residing with the appellant. P.Ws.-2 & 3 namely, Bham Ram Mahto and Rameshwar Prasad Mahto respectively, have supported the case of the respondent-plaintiff. They have stated that other four daughters are residing with respondent-plaintiff and they had accompanied the respondent-plaintiff to Bokaro to bring his daughter, Khushbo Kumari but the appellant had refused to hand over the custody. 5. From the evidence adduced, it is evident that the other four daughters are residing with the respondent-plaintiff whereas the minor Khushbu Kumari has been deprived of the company of her sisters as she has been kept by the appellant. It is settled proposition that for the custody of the child, the paramount consideration is the welfare and interest of the child and not the rights of the parents under the statute.
It is settled proposition that for the custody of the child, the paramount consideration is the welfare and interest of the child and not the rights of the parents under the statute. It is to be noticed that welfare includes material welfare, both in the sense of an adequacy of resources to provide a pleasant home and comfortable standard of living and the most important factor to be considered is the stability, security, love and understanding, care and guidance, the warm and compassionate relationship which are essential for the complete development of the child’s personality, character and talents. In the absence of mother, the father is the main stakeholder for being considered as the guardian to whom the custody of the child is to be given and for giving the custody to either of the parents the attending facts and circumstances of each case has to be given due weightage on the touchstone of welfare of the child. The emotional plight of child is also to be considered, and it is relevant to mention that it is not necessary that if a person is a bad husband he cannot be a good father. Moreover, the remarriage of the father cannot be taken as a ground for not granting the custody of the child. The Court has to weigh the moral and ethical welfare of the child as well as the physical and mental well being of the child because the child cannot be treated as a commodity or property. It is apparent from the recital of the evidence in the impugned order that the appellant has not been able to substantiate the plea that the other four daughters, of the respondent begotten from late Gita Devi, are not being properly cared and looked after by the respondent-plaintiff or their step-mother or the welfare of other daughters are at stake. In the given fact situation the separation of a child from her father and other sisters will only lead to a sense and feeling of isolation and deprivation in the child which will have a negative impact on the psyche of the child affecting the mental and physical health of a child of tender years leading to adverse impact in the development of her personality.
The paramount consideration of the welfare of child also encompasses that the child must get a sense of belonging and social security and she should not feel that she has been neglected by the father or her other siblings. Depriving the child of the company of her father and sisters would have an adverse affect on the tender and impressionable mind of the child. The handing over custody of the minor girl to her father will foster a sense of belonging to the family and she shall enjoy the company of her sisters and foster a healthy relationship which will have positive impact on the overall development of the personality of the child both emotionally and physically. 6. In view of the discussions made above and looking to the evidence on record, and in the facts and circumstances of the case, we see no reason to interfere with the order passed by the learned Principal Judge, Family Court, Dhanbad dated 19th July, 2011 in Civil Misc. No.18 of 2005. No error has been committed by the learned Principal Judge, Family Court, Dhanbad in passing the order under Section 26 of the Hindu Marriage Act, 1955 for giving the custody of the minor daughter Khushbu Kumari to the respondent- plaintiff. 7. In the result this appeal stands dismissed.