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2023 DIGILAW 586 (CHH)

Samarin Nishad, W/o. Narendra Lal Singh v. Dhaniram Nishad, S/o. Rupchand Nishad

2023-11-01

DEEPAK KUMAR TIWARI, GOUTAM BHADURI

body2023
JUDGMENT : (Goutam Bhaduri, J.) : 1. This appeal is against the order dated 12.04.2022 passed by the Judge, Family Court, Mahasamund in Misc. Civil Suit No.14/2021, whereby the application filed by the appellant under Section 25 of the Guardians and Wards Act, 1890 for custody of 3 children from respondent No.1 - Dhaniram Nishad was dismissed. 2. The mother of the children being appellant is in the appeal. The admitted facts of the case are that the appellant was married to Dhaniram Nishad who works as a labour and out of their wedlock, 3 children who are arrayed as respondents No.2, 3 & 4, were born. According to the appellant/mother, in the year 2014, she got separated from respondent No.1. Thereafter, she performed second marriage with one Narendra Singh and started residing with him. It was stated that the second husband has sufficient means to look-after the children as he is working as a driver, whereby, he earns Rs.12,000/- per month and he is also having 7 acres of land, therefore, they are more capable in financial terms to look-after the children as compared to respondent No.1 who works as a labour and is getting Rs.150/- per day and he is not able to look-after the welfare of the children and their education is also getting affected. Therefore, she wants the children back in her custody. 3. Respondent No.1 filed his reply and stated that the appellant deserted the husband and 3 children in the year 2014 and thereafter she performed second marriage. It is further stated that after the year 2014, she never tried to contact the children till the petition was filed. The non-applicant (respondent No.1) is residing in the joint family along with his mother and brother who is issueless and he takes care of the children. It is also stated that the children are studying well. On such grounds, the application was registered. 4. The Family Court after evaluating the evidence of the appellant (AW-1) and her second husband Narendra Singh (AW-2) as also by taking into account the statement of the biological father Dhaniram Nishad (NAW-1) and the grand-mother Sukwaro Bai (NAW-2) found that welfare of the children would be better in the hands of father and thereby, dismissed the application for custody. Hence this appeal. 5. Hence this appeal. 5. Learned counsel for the appellant would submit that the appellant being biological mother and her second husband can take better care of the children. It is further submitted that her second husband has affluent means to take care of the children as compared to the father of the children. It is further submitted that in view of the fact that the second husband of the appellant is also issueless is agreed to take care of the children therefore, betterment of the children would be in the custody of appellant. Learned counsel submits that dismissal of the application by the learned Family Court is required to be interfered and prays to allow the present appeal. 6. On the other hand, learned counsel for the respondents would submit that the appellant after deserting the husband and children in the year 2014, the appellant never turned back to take care of the children and such conduct itself would show that she was not willing to take care of the children. It is further submitted that once the desertion is made voluntarily, it would not be proper for the appellant to ask for custody of the children and prays to dismiss the appeal. 7. We have heard learned counsel for the parties and perused the record. 8. It is settled proposition that upon an application for custody of the minor, the Court should be very careful and should anxiously weigh the evidence led before it which would include the various considerations so as to promote the welfare of the minor. In deciding the question of custody, the welfare of minor is the paramount consideration. Claim seeking custody of the children is not akin to the property right as various factors would be necessary to evaluate to decide the question. Keeping such object in our mind, we shall explore the evidence led by the parties. 9. The biological mother - the appellant stated that after the divorce with respondent No.1 Dhaniram in the year 2014, she performed marriage with Narendra Singh and started residing with him. She further stated that after birth of 3 children she underwent tubectomy operation, due to which, she cannot conceive and therefore, she has filed an application for custody of the children. She further stated that after birth of 3 children she underwent tubectomy operation, due to which, she cannot conceive and therefore, she has filed an application for custody of the children. Apart from such fact, she narrated that second husband has sufficient means to take care of children as he owns 7 acres of agricultural land from which he earns Rs.5 Lacs per annum and he is working as a driver and getting Rs.12,000/- per month. Similar statement has also been given by the second husband Narendra Singh (AW-2) who says that the appellant could not conceive therefore, they want custody of the children. Further, he is working as a driver and earning Rs.12,000/- per month and he is having 7 acres of agricultural land from which he earns Rs.2 Lacs per annum. So he would be in better position to look-after the children. Against this statement, the biological father – Daniram Nishad with whom the children are residing, in his statement stated that he is a daily wager and working as a labour and his brother is working as a mason. He also stated that he resides in a joint family along with his brother and mother and they are jointly capable to look-after the welfare of the children. 10. The Supreme Court in the matter of Smriti Madan Kansagra v Perry Kansagra, (2021) 12 SCC 289 in respect of best interest of the child, held thus at paras 15.5 and 15.6 : 15.5 To decide the issue of the best interest of the child, the Court would take into consideration various factors, such as the age of the child; nationality of the child; whether the child is of an intelligible age and capable of making an intelligent preference; the environment and living conditions available for the holistic growth and development of the child; financial resources of either of the parents which would also be a relevant criterion, although not the sole determinative factor; and future prospects of the child. 15.6 This Court in Nil Ratan Kundu v. Abhijit Kundu (2008) 9 SCC 413 , set out the principles governing the custody of minor children in paragraph 52 as follows: “Principles governing custody of minor children 52. 15.6 This Court in Nil Ratan Kundu v. Abhijit Kundu (2008) 9 SCC 413 , set out the principles governing the custody of minor children in paragraph 52 as follows: “Principles governing custody of minor children 52. In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.” 11. Likewise, way back in the matter of Dhanwanti Joshi v Madhav Unde : (1998) 1 SCC 112 , the Supreme Court observed that more importance to the superior financial capacity of the spouse cannot be given precedent and that cannot be the sole ground for disturbing the child from the custody. The wife in this case through her second husband tried to project that she is in a better position to maintain, but that cannot be the sole ground. 12. Similarly, the Supreme Court in the matter of Mausami Moitra Ganguli v Jayant Ganguli : (2008) 7 SCC 673 , has laid down that in respect of custody of minor, the care and control of the child would be a paramount consideration. 12. Similarly, the Supreme Court in the matter of Mausami Moitra Ganguli v Jayant Ganguli : (2008) 7 SCC 673 , has laid down that in respect of custody of minor, the care and control of the child would be a paramount consideration. The financial resources of either of the parents though may one of the relevant factor but that cannot be the sole determining factor for custody of child. The Supreme Court held thus at paras 19 to 22 : “19. The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. 20. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the Court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration. 21. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration. 21. In Rosy Jacob Vs. Jacob A. Chakramakkal (1973) 1 SCC 840 , a three- Judge Bench of this Court in a rather curt language had observed that (SCC p. 855, para 15): “15….the children are not mere chattels; nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is 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.” 22. In Halsbury's Laws of England (Fourth Edition, Vol.13), the law pertaining to the custody and maintenance of children has been succinctly stated in the following terms: "809. Principles as to custody and upbringing of minors – Where in any proceedings before any court, the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other." 13. Primary reading of the statement shows that marginally the appellant and her second husband may be more affluent individually but welfare of the minor children is not to be measured only in terms of money and physical comfort. The welfare must be considered in the widest sense. Primary reading of the statement shows that marginally the appellant and her second husband may be more affluent individually but welfare of the minor children is not to be measured only in terms of money and physical comfort. The welfare must be considered in the widest sense. The evidence on record would show that when the last child was of 2 years, she deserted the child while the others were also minor. This Court can sense the requirement of the child when he was of 2 years as at that time the child was required maximum company of the mother but the children were abandoned in the hands of the father in a joint family. The mother not only deserted the husband and children in the year 2014 but she also performed second marriage with Narendra Singh. The applicant’s evidence would show that the family of Dhaniram (respondent No.1), is capable in taking care of the welfare of children in proper way and the same is also stated by Sukwaro Bai (NAW-2) that the children are being looked after properly. The overall evidence which is on record would show that the children who are in the custody of respondent No.1 and his joint family, are being looked after properly as the father says that with the help of his brother they run the family. 14. Reading of the statements of second husband of the appellant Narendra Singh (AW-2) and mother of the respondent No.1, Sukwaro Bai (NAW-2) would show that after the children and husband were abandoned by the appellant in the year 2014, an application was filed by her for custody in the year 2021, after a gap of 7 years. In fact, both the parties admitted that since 7 years the appellant has not met the children but after 7 years the question of custody was raised for the reason that she underwent tubectomy operation, therefore, the primary demand of the mother would show that an opportunity was tried to be availed for the reason that she could not conceive any more, as such she wanted the custody of the children. Such demand, if is acceded, coupled with the fact that the appellant is more financially capable, the said demand cannot be given a precedent for the custody and the children who are in the custody of father and his family members for the last seven years seem to be happy. Apart from that, the fact cannot be ignored that mother has already performed second marriage and happily placed. 15. Having considered the entire facts situation of the case, in the considered opinion of this Court, we find that the welfare of the children would be better in the hands of the respondent No.1/father. Thus, the impugned order passed by the Court below is just and proper warranting no interference of this Court. 16. As an upshot, the appeal, sans merit, is liable to be and is hereby dismissed, leaving the parties to bear their own cost(s).