Court No. - 32
Case :- FIRST APPEAL No. - 78 of 2019
Appellant :- Sanjay Kushwaha
Respondent :- Sangeeta
Counsel for Appellant :- Ajay Kumar Mishra
Hon'ble Shashi Kant Gupta,J. Hon'ble Pradeep Kumar Srivastava,J.
Ms. Ruchita Jain, Advocate has filed her Vakalatnama on behalf of respondent, is taken on record.
Heard learned counsel for the parties.
This appeal has been preferred against the impugned judgment and order dated 04.01.2019, passed by the Principal Judge, Family Court, Jhansi, in Petition No. 12 of 2015 (Smt. Sangeeta Vs. Sanjay Kushwaha), under Section 25 Guardians and Wards Act by which the learned court below has partly allowed the petition of respondent-petitioner and has directed the appellant-opposite party to be the natural guardian of the minor permitting the respondent-petitioner to have the custody of the minor during winter and summer vacation of his school.
Facts of the present case is that respondent-petitioner has filed a petition under Section 25 of the Guardians and Wards Act stating that the minor Aditya is the son of both the parties who was born on 17.02.2001. The appellant-opposite party and his relatives were not happy with the dowry given in the marriage and there remained dispute between both the parties. In the year 2012, the respondent-petitioner and her child were taken to Mumbai and on account of demand of dowry she was put to harassment and maar-peet and they are pressurizing for divorce. From the last three years, the appellant-opposite party is not permitting to meet her child and finally on 30.01.2015 when the appellant- opposite party and his parents met in a marriage, they refused to give the child in the custody of respondent-petitioner and she was forced to live in her parental home. The appellant-opposite party is regularly pressurizing that only in the event of divorce, the custody of the child will be given to her. The appellant- opposite party has also filed petition for divorce and he wants to re-marry after divorce. The child is not being properly nourished and the appellant-opposite party is inclined to give the child to his sister and other in-laws who are childless. Against this petition, objection was filed admitting the age of the child who is at present 7 years old.
It has been stated that the respondent-petitioner is living with her parents by her own will and she has never been put to harassment and cruel treatment. She, herself left the child with the appellant-opposite party in Mumbai and returned to Jhansi to her parental house on 19.12.2011 and since then she has never taken care of the child and the child even does not recognize her. The child is being properly nourished by appellant-opposite party in Mumbai where he is taking education and is not inclined to give the child to his sister- and other in-laws and the allegation in this regard are totally false. The respondent-petitioner has also filed a case claiming maintenance and she is not in a position to properly maintain and nourish the child.
After having heard both the parties, the learned court below has passed the impugned order dated 04.01.2019.
Aggrieved by the aforesaid impugned order, the appellant-opposite party has filed the present appeal. He has stated that when the minor Aditya appeared before the court below, he could not recognize his mother/respondent-petitioner and has also not talked to her. There is no source of income of the respondent- petitioner nor liking and disliking of the minor was considered. The respondent- petitioner is living in her parental house for the last 7 years. The Court below did not consider the best interest of the child nor asked the willingness of the child while passing the impugned order, hence the impugned judgment and order dated 04.01.2019 is liable to be set aside.
Admittedly, both the parties are married and no decree of divorce has yet been passed. The minor was born out of legal wedlock of both the parties. It is also admitted fact that the child is living with the appellant-opposite party in Mumbai where he is studying in school. It is further admitted between the parties that when the petition was filed, the child was about 7 years old and as per Hindu Minority and Guardianship Act, 1956, in case of male or unmarried female child, father will be natural guardian, if the child has attained the age of 5 years. If the child is below the age of 5 years, ordinarily, the child will be kept in the custody of mother.
The parties are not otherwise disqualified to be natural guardian as provided under the act.
This argument has no legal basis that the best interest of the child has not been considered by the learned trial court. On the contrary, it had tried to ensure the best interest of the child by passing the impugned order. Best interest and upbringing of a minor involve affection and association of both father and mother. We are unable to understand how the best interest of the minor will be achieved, if he is kept deprived from the love and affection of the mother.
By the impugned order, the custody of the child has been given to the respondent-petitioner for a limited period i.e. during summer and winter vacations of schools and by doing so, the learned trial court virtually has balanced the equity between both father and mother. It will certainly not affect the schooling of the child, which is so necessary for good upbringing of the child.
The argument that the child did not recognize his mother before the learned trial court or that the respondent-petitioner does not have sufficient financial resources to be spent on the minor for the period he joins her as she herself is claiming maintenance from the appellant, should not be overemphasized as the minor is to live with her for a very short period and the respondent-petitioner is not living elsewhere but living in her parental house. If the appellant-opposite party is so much concerned about the respondent's financial constraints, instead of raising this argument, he should better provide necessary finance, so that the minor may live during the period with respondent conveniently. It should always be kept in mind that when the court is confronted with such kind of conflicting demands, it should not be looked merely on legalistic basis and in such situation human angles and sensibility are relevant for a just decision. The courts are not expected in such situation to lay emphasis on what the parties say, it has to exercise jurisdiction aiming at the welfare of the minor.
The desire of the child coupled with the conducive and appropriate environment for proper upbringing together with the ability and means of the parents to take care of the child are some of the relevant factors to be taken into account by the court while deciding the issue of custody of a minor. All these factors are undoubtedly relevant and important, but the emphasis should be on the desire, interest and welfare of the minor which is the crucial element for consideration by which the court is expected to be guided while making such determination. We find that the learned court below has taken care of best interest of the minor.
On the basis of above discussions, we find that the impugned order is legally, justified and no interference is required.
The appeal is, therefore, dismissed.
Let the certified copy of this order be sent to the concerned court below for compliance.
Order Date :- 24.1.2019 sailesh