Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 2341 (RAJ)

Naresh Kumar v. Anju Devi

2019-08-29

MOHAMMAD RAFIQ, NARENDRA SINGH DHADDHA

body2019
JUDGMENT Narendra Singh Dhaddha, J. - This appeal has been preferred by the appellant Naresh Kumar against the order of the learned Family Court, Jhunjhunu passed on 17.4.2018 whereby the learned Family Court rejected the Civil Misc. Case No.874/2016 (528/2015) (59/2015) filed u/s 25 of the Guardians and Wards Act,1890 read with section 6 of the Hindu Minority and Guardianship Act,1956 seeking custody of minor son Yash. 2. Brief facts giving rise to this appeal are that the marriage of the appellant was solemnized with respondent on 15.7.2005 as per Hindu rites and customs and spouses are blessed with male child Yash on 20.12.2006. The appellant was posted as Sub-Inspector at Mumbai airport. For some time, the spouses were maintaining good relationship but after passing of few days there relations became strained and respondent started quarreling with the appellant and his family members without any reasons. But in order to maintain peace and harmony in family, the appellant always tolerated bad and unacceptable behaviour of the respondent. On misbehave of the respondent, the appellant filed a divorce petition which was dismissed on 17.4.2018 by the learned Family Court. The appellant admitted his son at Mahala Residential Public School, Reengus in Class-IV standard in 2014- 15. The said school is an English medium. On 6..5.2015, the respondent took his son Yash by force without any information. The appellant submitted an application before the Sub-Divisional Magistrate, Srimadhopur u/s 97 of the Cr.P.C. to take custody of his son. His application was rejected and gave custody of his son Yash was given to the respondent vide order dated 17.4.2018 3. In reply, the respondent wife denied all the allegations and stated that the behaviour of the appellant was cruel with her and son. The appellant was careless about his son and he was in the habit of intoxication. So, the application for taking custody be rejected. 4. From the pleadings, the learned Family Court framed issues : 5. The appellant examined himself as AW-1 and three other witnesses as Suwa Lal AW-2, Laxmi Devi AW-3 and Pooran Singh AW-4 and exhibited 15 photographs . 6. The respondent examined hierself as NAW-1 and three witnesses as Vidhyadhar NAW-2, Sunita Choudary NAW-3 and Yash NAW-4 and exhibited 18 documents. 7. After hearing the learned counsel for the parties, the learned Family Court decided these Issues in favour of the respondent and against the appellant. 8. 6. The respondent examined hierself as NAW-1 and three witnesses as Vidhyadhar NAW-2, Sunita Choudary NAW-3 and Yash NAW-4 and exhibited 18 documents. 7. After hearing the learned counsel for the parties, the learned Family Court decided these Issues in favour of the respondent and against the appellant. 8. Learned counsel for the appellant submitted that the learned Family Court had committed serious error in dismissing the application filed by the appellant u/s 25 of the Guardians and Wards Act,1890 read with section 6 of the Hindu Minority and Guardianship Act,1956 for seeking custody of his minor son Yash. The learned Family Court in routine and cursory manner and without application of judicial mind, straightway dismissed the petition. Learned counsel for the appellant submitted that behaviour of the respondent after marriage, was not good. She used to quarrel with appellant and his family members and without any reason on trivial matter, she used to live matrimonial home for her parental house without taking care of appellant and her child Yash. The appellant and his parents had to take care of minor child Yash since his childhood. For better future of his child Yash, the appellant requested his higher-ups in office to get his transferred at Mumbai where Yash admitted in Kandriya Vidyalaya for study. The behaviour of the respondent had not changed. So, it was impossible for the appellant to stay with respondent at Mumbai. The appellant shifted Yash and respondent from Mumbai to his village in the care & protection of his own parents and further got his son admitted in an English Medium School at Reengus in the academic sessions 2014-15 in Standard-IV. The respondent without permission of the appellant, took minor son Yash from school bus. Appellant's father thereafter made a complaint u/s 97 of the Cr.P.C. before Sub-Divisional Magistrate, Srimadhopur. The SDM, Srimadhopur handed over the custody of minor child Yash to the respondent. Learned counsel for the appellant submitted that atmosphere in the parental family of the respondent, was not so good for the study of Yash because brother of the respondent is a driver by profession. On the other hand, his father is an Ex-Serviceman and sister is also well educated. So, the atmosphere of appellant's home is very favorable for minor child Yash. 9. On the other hand, his father is an Ex-Serviceman and sister is also well educated. So, the atmosphere of appellant's home is very favorable for minor child Yash. 9. Learned counsel for the appellant submitted that for custody of minor child, the matter was to be decided not on considerations of the legal rights of the litigant parties but on the sole and predominant criteria of what would best serve the interest and welfare of the minor is the paramount consideration. The order of the learned Family Court was not in the best interest of the child. The learned counsel for the appellant also submitted that the appellant had left his job for betterment of the child Yash but the learned Family Court had failed to consider this averment. 10. The learned counsel for the appellant submitted that the learned Family Court erred in believing the statement of minor child who was only twelve years old. On question to minor Yash, to whom he wanted to live, he readily answered of his own to live with his mother. Learned counsel for the appellant submitted that the minor Yash was only twelve years old and he did not understand as to where his welfare lies and in such a tender age, the will of a child with whom he wanted to live had no significance. The learned Family Court ought to have decided the matter on the basis of evidence lead by the parties and welfare of minor child. The learned counsel for the appellant also submitted that the appellant had better financial condition than the respondent. The learned Family Court wrongly interpreted that the financial position of the appellant was not so good. So, the appeal be allowed and custody of the minor child should be granted to the appellant. 11. On the other hand, the learned counsel for the respondent submitted that there was no illegality and infirmity in the impugned order. He submitted that the respondent is well educated and she was serving and the minor Yash was studying in S. S. Modi School, Jhunjhunu. Learned counsel for the respondent submitted that on query of the court, minor Yash clearly answered that he wanted to live with his mother. Learned counsel for the respondent submitted that educational record of Yash also reflects that the study was going very well. So, the appeal may be dismissed. 12. Learned counsel for the respondent submitted that on query of the court, minor Yash clearly answered that he wanted to live with his mother. Learned counsel for the respondent submitted that educational record of Yash also reflects that the study was going very well. So, the appeal may be dismissed. 12. Learned counsel for the respondent placed reliance in Smt. Jhamku V/s Goda, (2006) WLC(Raj) 418 UC, Smt. Kiran V/s Anil Kumar,2005 5 WLC(Raj) 573 , Lekha V/s P. Anil Kumar, (2007) 1 WLC(SC)CVL 362 , Govind Sahai Bagarhatta & Ors. V/s Shri Santosh Mishra,2001 DNJ 886 (Raj), Kirtikumar Maheshankar Joshi V/s Pradipkumar Karuashanker Joshi, (1992) AIR SC 1447 and Nil Ratan Kundu & Anr. V/s Abhijit Kundu, (2008) 2 WLC(SC)CVL 785 . 13. We have given our thoughtful consideration to the arguments advanced by both the parties, perused the impugned order and the material available on record. 14. Minor Yash is presently in the custody of his mother and his study is going very well. The learned Family Court in its order clearly stated that the wishes and welfare of the minor child are paramount consideration for custody. The learned Family Court in its order clearly stated that the respondent is well educated at presently minor Yash is studying at S. S. Modi School, Jhunjhunu. In the Family Court the minor Yash was asked to whom with he wanted to live. On this question, minor Yash clearly stated that he wanted to live with his mother. The learned Family Court in its order observed that during the trial the appellant was given visiting right to meet minor Yash but he had not followed the order and in his evidence he stated that by his meeting adverse effect might reflect on child, so he did not want to meet him. The learned Family Court in its order observed that the appellant had left the jo0b and he was in pathetic condition. So, he could not take care of minor child. Therefore, we find no illegality or infirmity in the order of the learned Family Court. 15. Therefore, we are of the considered opinion that the learned Family Court had not committed any error in rejecting the divorce petition filed by the appellant. Therefore, we are persuaded to reject the appeal and accordingly, it is dismissed.