JUDGMENT
1. This appeal filed by the husband under Section 19 of the Family Courts Act challenges the order passed by the Principal Judge, Family Court, Allahabad in matrimonial petition No. 161 of 2003 rejecting the application of the appellant husband filed under Section 26 of the Hindu Marriage Act, 1955 claiming custody of the minor female child and allowing the application of the respondent wife filed under Section 27 of the said Act for refund of a sum of Rs.96,000/- in lieu of the cash, gift and other items given in the marriage.
2. The facts are that a petition under Section 9 of the Hindu Marriage Act, 1955 (for short 'the Act') was filed by the appellant husband seeking divorce. The case set up in the petition was that parties were Hindu and were married according to Hindu customs and rites on 29.4.1996. On the first night the wife disclosed about her love affairs and sexual relationship prior to marriage and after the love affair came to light her parents forced her to marry much against her wishes. It was further pleaded that since the husband belongs to a respectable family as such he accepted the facts in the name of the family honour. It was further pleaded that wife remained with the husband for fifteen days at the matrimonial home in Allahabad and thereafter, went with the husband to Ambala where he was employed as a teacher and remained there for a month. Thereafter, she came back to Allahabad from where she went to Nasik along with her father where he was serving in the air force. While going she took away all her clothes, jewellery and 'stridhan' with her. She again came back to Ambala in September, 1999 and remained there for about seven months and thereafter she went away with her father and never came back. It was pleaded that a female child was born on 21.9.2000. In spite of many efforts she did not return to her matrimonial home and at present she is employed as a manager in Sekhar Hospital at Lucknow drawing a salary of Rs.19,600/-. Allegations were also made that she is still having extra marital affair with her lover and for the last three years she has refused to discharge her pious matrimonial obligation and has deserted the husband.
3. The respondent wife filed a written statement accepting the fact of marriage. It was pleaded by her that after marriage she was discharging all her matrimonial obligation and paid due respect and regards to all the members of her husband's family. It was further pleaded that her father had spent about four lakhs towards cash, gift items and jewellery in the marriage. Still the husband and her family members were not satisfied and used to harass and torture her for not bringing sufficient dowry. When she returned to parents' home she disclosed all these facts to them. Efforts of reconciliation were made by her father through some relatives and thereafter, the husband agreed to take her back after he was given Rs.50,000/- in cash as dowry. The husband thereafter, took her to Ambala and for some days his behaviour was normal. Thereafter, he again started harassing her to get a computer from her parents. In the year 2000 the husband resigned from his services and came to Allahabad without telling the wife and left her alone at Ambala. After waiting for a few days she informed her father who took her to Nasik. Allegations were also made that the husband is doing business of computer at Allahabad and he and his entire family is very greedy and it is not possible for her to live with him. She also made a prayer for grant of divorce.
4. During the pendency of the proceedings before the Family Court an application under Section 25 of the Act claiming Rs.7,00,000/- as maintenance and another application under Section 27 for refund of cash, gifts and jewellery worth Rs.4,50,000/- given in the marriage was moved by the wife.
5. The appellant husband also moved an application under Section 26 of the Act for custody of the minor female child.
6. The trial Judge made efforts for reconciliation between the parties which failed. Since both the parties were claiming divorce, no issue was framed on the point and decree for divorce was passed which is not under challenge in the present appeal. On the applications moved under Sections 25, 26 and 27 of the Act following issues were framed by the trial Judge.
i) Whether the wife is entitled to the amount claimed by her in the applications under Sections 25, & 27 of the Act and if yes, the quantum.
ii) Whether the husband is entitled to custody of the minor child and
iii) Relief.
7. However, the application under Section 25 of the Act was not pressed and was withdrawn by the wife. Thus this issue was not considered and decided by the trial Judge.
8. The respondent-wife filed a list giving details of cash, various gift items and jewellery given at the time of marriage and other ceremonies along with the application moved under Section 27 of the Act. The claim of the wife was contested by the husband denying the allegations. It was stated that at the time of marriage he was employed on a meager salary of Rs.2000/- in DAV School, Ambala and as such nobody would have given such huge dowry in marriage. He however, admitted that utensils were given as gift item in the marriage. It was also stated that while leaving the matrimonial home the wife had taken away all the gift items and stridhan with her.
9. The wife also appeared in the witness box and stated cash and other items mentioned in the list was given by her father at the time of marriage which has been kept by the husband and his family members. Her father also appeared as a witness and stated that the cash and other items mentioned in the list were given by him in the marriage.
10. The husband did not cross-examine either the wife or her father.
11. The trial court after analyzing the oral evidence of both the parties allowed a sum of Rs.21,000/- as cost of various utensils given at the time of marriage. This claim was allowed on the basis of the admission made by the husband himself.
12. The trial court further found that claim made by the wife for refund of Rs.31,000/- paid in cash on 15.3.1996 at the time of 'Bariksha' (engagement ceremony) and Rs. 10,000/- and Rs.22,000/- given in cash at the time of reception of 'Barat' was proved and accordingly, directed its refund. The trial Judge further directed refund of Rs.12,000/- in lieu of clothes given in various ceremony of the marriage. In this manner a claim of Rs.96,000/- was allowed by the trial Judge and the husband was directed to refund the same.
13. However, the claim made by the wife for refund of Rs.1,50,000/- given in cash at the time of 'Tilak' ceremony and motor cycle and other items mentioned in the list was disallowed on the ground that wife had failed to prove the same. The claim for refund of Rs.60,000/- towards reception of 'Barat' and dinner was also disallowed on the ground that guest of both sides had participated in the marriage ceremony and attended the dinner.
14. We have gone through the findings recorded by the trial Judge. The same are based on proper appraisal of oral evidence brought on record by the parties and we find no illegality in the same.
15. In so far as issue No. 2 relating to custody of minor child is concerned, the application filed by the appellant husband has been rejected. The trial court found that appellant husband had himself stated that he was unemployed and he has failed to demonstrate how he will arrange for good education, proper upbringing and maintenance of the child. The trial court has further recorded a finding that it was stated by the husband that he has given financial help for upbringing the child but he has failed to adduce any evidence in this regard.
16. It is well settled that welfare of the minor child is of paramount consideration while deciding the dispute about the custody. If the custody of the father cannot promote the welfare of the minor child equally or better than the custody of the mother then he should not be allowed to the custody as the same may adversely affect the welfare of the child.
17. In the present case as is clear from the pleadings of the parties that appellant husband is unemployed whereas the wife is employed drawing a salary of Rs. 19,600/-per month, she is definitely in a much better position to arrange for proper education, upbringing and better health of the child. It is also clear from the pleadings of the parties that the child ever since after her birth has never lived with her father or his family. The trauma that a child of five years is likely to experience in the event of change of custody of a person with whom she has never lived or may not have even seen his face ever will have also to be borne in mind while deciding the dispute about the custody. We are also conscious of the fact that the child for whose custody the two parent are fighting is a female child who on the advent of puberty would primarily require the care and attention of a mother. Thus considering the facts that financial position of the wife which is far superior to that of the husband, who according to his own pleading is unemployed, the child ever since after her birth has never lived with the father or his family and being a female child would be better attended to and guided by a mother at the time of attaining of puberty, it would be best to give her in the custody of the mother (respondent-wife) as in the facts and circumstances of the case, the same would best serve the welfare and interest of the minor child.
18. In view of the aforesaid discussions, we see no illegality in the impugned judgement of the trial court rejecting the application of the husband for custody of the minor child and giving her in the custody of the respondent-wife.
19. From the aforesaid discussions, it is clear that the appeal is without any force and lacks merit. It is, accordingly, dismissed.