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2020 DIGILAW 172 (RAJ)

Dinesh Jetwani v. Smt. Jyoti Jetwani

2020-01-20

MR.NARENDRA SINGH DHADDHA, SABINA

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ORDER Dhaddha, J. - This appeal has been preferred by the appellant Dinesh Jetwani against the order of the learned Family Court No.2, Kota (Raj.), passed on 20.01.2017 whereby the learned Family Court rejected Guardian & Wards Act Case No.5/2016 filed u/s 7, 12 and 25 of the Guardians and Wards Act, 1890 seeking custody of minor children. 2. Brief facts giving rise to this appeal are that the appellant filed a petition u/s 7,12 and 25 of The Guardian and Wards Act against the respondent seeking custody of his daughter Sambhawana and son Jayaj before the Family Court, Kota. The petitioner got married to the respondent on 21.11.1996 in Porwala Dharamshala Ramganj Mandi, Kota and since then they had been in cordial marital relations. After some time of marriage, the respondent's behaviour started changing and she started fighting on trivial matters. The respondent used to go to her parental house without even telling or informing the appellant. She used to spend all her time lying in bed and pretended herself to be hungry and ill. Due to this, the appellant's time was also getting wasted in stress and arguments and also the children got sick. As the children were growing up, the respondent's demand and her stubborn behaviour started increasing and also she learnt black magic from her mother and used it on the appellant as well as the children. The appellant had always been kind and respectful towards the respondent but the respondent had never been sensitive towards the appellant. On 26.05.2012, the respondent without informing and without the permission of the appellant left the appellant's house and went to her parental house along with the children and since then the respondent was living at her parental house. The respondent had deprived the appellant of any kind of marital happiness and by keeping him away from the children, she was upto destroying their future as well. Appellant is the best natural guardian of the daughter Sambhawana and the son Jayaj. There was no environment of education at the respondent's parental house and there was always a stressful environment. The respondent's parental house was in the busiest place of the city where there were multiple shops of mechanic. Appellant is the best natural guardian of the daughter Sambhawana and the son Jayaj. There was no environment of education at the respondent's parental house and there was always a stressful environment. The respondent's parental house was in the busiest place of the city where there were multiple shops of mechanic. Therefore, the place where the respondent lived was not suitable enough for the complete development and nurturing of the children as the personality and the mentality of the children is affected mostly by the environment around them. In such situation, it is of prime importance that the children stay with the appellant. The appellant further stated that the respondent is unable to bear the expenses of the children as she herself is financially dependent on her father, but the appellant is able to bear all the expenses of the children as he is running a hotel in the name of his daughter Sambhawna and a stone industry in the name of his son Jayaj. Therefore, the appellant's application be accepted and he be declared the natural guardian of the daughter Sambhawna and the son Jayaj. 3. In reply, the respondent wife denied all the allegations and stated that the behaviour of the appellant and his family became cruel and immoral towards her due to their demand of dowry in the form of money, jewellery and expensive gifts. Also they used to beat the respondent for the demand of dowry and also did not give her sufficient food and water and threatened her to throw her out of the house. The appellant was careless about the children. The appellant himself had thrown the respondent as well as the children out of his house and is now presenting false facts in his application to save himself from paying the interim maintenance. The appellant had never taken care of the nurturing and education of the children and had never provided any kind of financial help. Both the children are also not in favour of staying in the appellant's guardianship. The appellant out of ill intention as well as to save himself from the interim maintenance was trying to take the children under his guardianship, whereas, he does not even have the appropriate means to take proper care of the children and their education. Therefore, it was prayed that the appellant's application be dismissed. 4. The appellant out of ill intention as well as to save himself from the interim maintenance was trying to take the children under his guardianship, whereas, he does not even have the appropriate means to take proper care of the children and their education. Therefore, it was prayed that the appellant's application be dismissed. 4. From the pleadings, the learned Family Court framed the following issues : "(1) Whether the appellant Dinesh Jetwani capable of taking care of his daughter Sambhawna and his son Jayaj being their father and of providing them with basic facilities and to remove the respondent's guardianship to take it by himself ? (2) Relief ?" 5. The appellant examined himself as AW-1 and witnesses as AW-2 Madan Lal and AW-3 Rajesh Kumar and the respondent examined herself as NAW-1 Jyoti and witnesses as NAW-2 Sambhawna and NAW-3 Nand Lai. 6. After hearing the learned counsel for the parties, the learned Family Court decided the issue in favour of the respondent and against the appellant. 7. Learned counsel for the appellant submitted that the learned Family Court had committed serious error in dismissing the application filed by the respondent u/s 7, 12 and 25 of the Guardians and Wards Act, 1890 for seeking the custody of Sambhawana and Jayaj. The learned Family Court in routine and cursory manner and without application of judicial mind straight away, dismissed the petition. Learned counsel for the appellant further submitted that behaviour of the respondent, after marriage was not good. She used to quarrel with the appellant and his family members on trivial matters without any reason. She used to leave her matrimonial home without informing the appellant. 8. Learned counsel for the appellant further submitted that for the custody of minor child, the matter was to be decided not on consideration on legal rights of the litigant parties but on the sole of pre-dominant criteria of what would best serve the interest and welfare of the minor. The order of the learned Family Court was not based by keeping in mind the interest of the children. 9. Learned counsel for the appellant further submitted that learned Family Court had erred in believing the statement of Sambhawana. Learned counsel for the appellant further submitted that learned Family Court erred in coming to the conclusion that children during trial had stated that they wanted to live with their mother. 9. Learned counsel for the appellant further submitted that learned Family Court had erred in believing the statement of Sambhawana. Learned counsel for the appellant further submitted that learned Family Court erred in coming to the conclusion that children during trial had stated that they wanted to live with their mother. Learned counsel for the appellant further submitted that children were under the influence of their mother, so, they had not given right statement before the Family Court. They are of tender age, so, will of the children had no significance. 10. On the other hand, the learned counsel for the respondent submitted that there was no illegality and infirmity in the impugned order of the learned Family Court. Learned counsel for the respondent further submitted that Sambhawana is studying in Engineering College at Jaipur. She is major and son Jayaj is studying in Kota. Sambhawana in her statement clearly stated that behaviour of her father was not good towards her and the respondent and herself. Learned counsel for the respondent further submitted that during the trial, learned Family Court had called both the children in the Court and they had denied to live with their father. 11. Learned counsel for the respondent further submitted that appellant had inadequate income to maintain his children. In his statement, he had clearly stated that he had rental income of Rs.5,000/- per month. So, learned Family Court had not committed any illegality and infirmity in dismissing the petition filed by the appellant. So, the appeal deserves to be dismissed. 12. We have given our thoughtful consideration to the arguments advanced by both the parties, perused the impugned order and the material available on record. 13. Sambhawana is presently studying in Engineering College, Jaipur. She had attained the majority. In her statement before the learned Family Court, she had clearly stated that behaviour of appellant towards her and her mother was not good and she did not want to reside with her father. During the trial, learned Family Court had also called both the children and they had stated that they did not want to live with the appellant. Learned Family Court in its order clearly observed that the appellant had income of only Rs.5,000/- per month and he was in a pathetic condition, so, he could not take care of the children. During the trial, learned Family Court had also called both the children and they had stated that they did not want to live with the appellant. Learned Family Court in its order clearly observed that the appellant had income of only Rs.5,000/- per month and he was in a pathetic condition, so, he could not take care of the children. Therefore, we find no illegality or infirmity in the order of the learned Family Court. 14. Therefore, we are of the considered opinion that the learned Family Court had not committed any error in rejecting the petition filed by the appellant. Hence, we are necessitated to reject the appeal and accordingly it is dismissed.