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2024 DIGILAW 393 (CHH)

Umend Jaiswal, S/o. Shri Ramji Jaiswal v. Durgeshwari Jaiswal, W/o. Shri Umend Jaiswal

2024-05-01

GOUTAM BHADURI, SANJAY S.AGRAWAL

body2024
JUDGMENT : Goutam Bhaduri, J. Heard. 1. The present appeal is against the order dated 6/12/2022 passed by the Additional Principal Judge, Family Court, Bilaspur whereby an application under Section 7 and 10 of the Guardians and Wards Act, 1890 (hereinafter referred to as the Act of 1890) whereby the custody of the children sought by the father, the appellant herein was dismissed. 2. The father is in appeal before this court. The brief facts of this case are that the appellant got married to the respondent Durgeshwari on 18/04/2014. Out of that wedlock, they were blessed with a child on 12/07/2015 for whom the custody battle is on. Because of the husband and wife could not go along, therefore according to their custom, they got separated on 10/08/2016. At the time of separation, the girl child was in the custody of the mother, the respondent. With the passage of time, the mother got remarried and the father the appellant also got remarried. After remarriage of both husband and wife, they were blessed with another child. At this moment, the child was kept in the lap of the maternal grand father and grand mother. 3. The petition was filed by the husband claiming the custody of the children on the ground that he is the natural guardian as per section 6 of the Act of 1890 read with Section 4 (c), therefore the custody of the children may be given to him. It is further stated that the wife in her statement has admitted that financial position of her father and mother, with whom the child resides are not well. On the other hand, the father the appellant is a man of means can take care of the welfare of the child. It is further stated that since the father is not allowed to visit the child it will have a negative effect and eventually her future will be affected, therefore the best interest of the child would be protected in the company of the father the appellant and the custody be accordingly be given to him. Learned counsel placed reliance in the matter of Babu Charan Patra vs. Nityananda Patra and Anr. reported in 2023 SAR Online (Ori) 47 and in the matter of Githa Hariharan Vs. Reserve Bank of India reported in 1999 (2) SCC 228 . 4. Learned counsel placed reliance in the matter of Babu Charan Patra vs. Nityananda Patra and Anr. reported in 2023 SAR Online (Ori) 47 and in the matter of Githa Hariharan Vs. Reserve Bank of India reported in 1999 (2) SCC 228 . 4. Per contra, learned counsel for the respondent/mother would submit that the facts would suggest that even when the child and the father got separated, the appellant did not take care of the welfare of the child, as such, while the remarriage were performed, the child was kept with her maternal grand parents. She would further submit that the mother also keeps on visiting, therefore the statement of the child which was recorded before the Court would show that she want to stay with her maternal grand parents and the mother both. Consequently, under these circumstances, forceful order should not be made to hand over the custody of the children to the appellant. She would further submit that for welfare of the child the mother filed a petition for maintenance wherein amount of Rs.2000/- has been ordered, however that too is not being paid regularly. 5. We have heard the learned counsel for the parties, perused the pleading and the evidence on record. 6. There is no dispute about the fact that both the parties after the marriage got separated on 10/08/2016. At that time, the child was in the company of the mother. Subsequently, both the father and the mother they got remarried. In these circumstances, the child was put to the lap of the maternal grand parents. 7. The submission which is been made that the father is the natural guardian there is no doubt about such legal proposition but based upon right of being a legal guardian the custody battle cannot be decided. The prime consideration of court is happiness and the welfare of the child and same is supreme factor for deciding custody of child. It is a admitted fact that both the mother and father have been remarried which may cause eclipse to the degree of affection. This court while hearing the case interacted with the child and the order sheet dated 26/04/2023 would show that the child expressed her desire to stay with the grand parents and the mother. The extract of the order dated 26/04/2023 is reproduced here under:- “Heard. Pursuant to order dated 13.04.2023, child is produced before the court. This court while hearing the case interacted with the child and the order sheet dated 26/04/2023 would show that the child expressed her desire to stay with the grand parents and the mother. The extract of the order dated 26/04/2023 is reproduced here under:- “Heard. Pursuant to order dated 13.04.2023, child is produced before the court. Ms. Anjali Sharma, counsel who is present in the court is requested to have a conversation in a congenial atmosphere with the child, as it appears that the child may be little scared inside the court room. She may take the child along her and in a friendly manner she may try to know the mind of the child where the child wants to stay. Matter be taken up at 2.15 p.m. Later on (2. 15 p.m.) Parties as before Ms. Anjali Sharma, learned counsel interacted with the girl outside the Court in a congenial atmosphere. She reports that according to the wish of the child, she wants to stay with her Nana-Nani and also with her mother.” 8. As it has been held by the Supreme Court in the case of Ritika Sharan v. Sujoy Ghosh reported in 2020 SCC OnLine SC 878 that there has to be sense of security for the child. The statement of the child recorded before this court would show that the child feels that she is more secured in the company of the grand parents wherein she expressed that she want to stay with them and also want to stay with the mother. 9. The Supreme Court in the matter of Smriti Madan Kansagra v Perry Kansagra reported in (2021) 12 SCC 289 and several other cases repeatedly held that best interest of the child is required to be considered. The Court observed that 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 would be a deciding factor. The Supreme Court held thus at paras 15.5 and 15.6 : 15.5. The Supreme Court 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 para 52 as follows : (SCC p. 428) “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.” 10. The Supreme Court has observed that in the custody battle matter the right flowing from the statute cannot be the sole decisive factor. The Supreme Court has observed that in the custody battle matter the right flowing from the statute cannot be the sole decisive factor. The court therefore dealing with custody cases is neither bound by the statute nor by strict rule of evidence and the paramount consideration would be the welfare of the child and the financial position of the parties may be a factor but that would also not be a decisive factor. 11. Similarly, the Supreme Court in the matter of Mausami Moitra Ganguli v Jayant Ganguli, (2008) 7 SCC 673 , held 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 and each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents. The Court observed that the children are not mere chattels; nor are they mere play things for their parents. 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. 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. In Rosy Jacob v. 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 playthings 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 (4th Edn., Vol. 13), the law pertaining to the custody and maintenance of children has been succinctly stated in the following terms: “809. In Halsbury's Laws of England (4th Edn., 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.” 12. In the backdrop of the facts which has enumerated on the face, since both the parents have remarried and after the remarriage child are born to them. In such changed circumstances consideration of custody of child born out of first marriage may not be similar as little space for her may be reduced. Considering the facts and evaluating it with the intelligence preference of the child which was recorded by the court, we deem it proper that paramount interest of the child would be served in keeping her custody with the grand parents to avoid all head wind. Both the mother and father having remarried, the venue of the child is therefore appears to be better in a neutral custody wherein both the parents can approach and would be able to meet and support the child. When the child has already expressed her opinion to stay at a particular place, in the given facts, we deem it proper the custody of the child wherein she feels secured and have confidence would be better. 13. Consequently, we are not inclined to allow this appeal so as to up set the order passed by the learned family court. 14. Since it has been apprehended that the maintenance amount is not being paid to the child, the Family Court, Bilaspur shall ensure that the benefit of the maintenance shall go to the welfare of the child. 13. Consequently, we are not inclined to allow this appeal so as to up set the order passed by the learned family court. 14. Since it has been apprehended that the maintenance amount is not being paid to the child, the Family Court, Bilaspur shall ensure that the benefit of the maintenance shall go to the welfare of the child. Since the maintenance amount is paid by the father/appellant and the child is in the custody of the maternal grand parents, the amount of maintenance shall be handed over to the maternal grand parents which would be a due discharge of the payment. 15. Looking to the facts and circumstances of the present case, specially the submission of learned counsel for the appellant/father that he is not allowed to visit his child, it is duty of the court to strike out balance so that both the parents can contribute in upbringing of the child. 16. In a recent decision rendered in Ritika Sharan Vs. Sujoy Ghosh, 2020 SCC OnLine SC 878 the Supreme Court held that a balance has to be drawn so as to ensure that in a situation where the parents are in a conflict, the child has a sense of security. The interests of the child are best served by ensuring that both the parents have a presence in his/her upbringing. Therefore, following the principles laid down in Yashita Sahu Vs. State of Rajasthan reported in (2020) 3 SCC 67 and Ritika Sharan Vs. Sujoy Ghosh (supra), we hereby order to facilitate the grant of visitation and contact rights to the appellant/father. The following arrangements shall be made by both the appellant and respondent as father and mother : (i) The appellant/father would be able to engage with the child on a suitable video conferencing platform for one hour every Saturday and Sunday and 5 – 10 minutes on other days. (ii) Respondent the mother/maternal grand parents and the appellant the father in order to facilitate the video conferencing between them shall procure smart phones which would facilitate the inter-se video calling. (iii) During long holidays/vacation covering more than 2 weeks the child will be allowed to be in the company of the father for a period of 7 days. The period shall be fixed by the father after due intimation to the respondent the mother/grand parents. (iii) During long holidays/vacation covering more than 2 weeks the child will be allowed to be in the company of the father for a period of 7 days. The period shall be fixed by the father after due intimation to the respondent the mother/grand parents. (iv) Every month preferably on Saturday or Sunday the grand parents/mother shall allow the child to visit his father or father may take the child in his company and leave her back in the evening of such day. (v) During festivals the father may join the company of the child at the place of grand parents and may spend the festival days with the child along with his other family members. 17. With the aforesaid observations/direction, the appeal stands disposed of.