Allahabad High Court
Ragini Mishra And Another vs Nitin Nigam on 14 October, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:183857-DB
HIGH COURT OF JUDICATURE AT ALLAHABAD
FIRST APPEAL DEFECTIVE No. - 849 of 2025
Ragini Mishra And Another
.....Appellant(s)
Versus
Nitin Nigam
.....Respondent(s)
Counsel for Appellant(s)
:
Kali Azad, Rohan Gupta
Counsel for Respondent(s)
:
Subodh Kumar
Court No. - 39
HON'BLE ARINDAM SINHA, J.
HON'BLE SATYA VEER SINGH, J.
(Per Arindam Sinha, J.)
1. The appeal has been preferred against judgment dated 31st July, 2025 of the Family Court directing, inter alia, custody of the younger son to be with respondent (the father). Appellant (the mother) being aggrieved had preferred the appeal. Mr. Rohan Gupta, learned advocate appears on her behalf, while Mr. Subodh Kumar, learned advocate appears on behalf of respondent.
2. Appellant and respondent had got married on 15th December, 2006. They were blessed with two sons. The elder one was born on 9th March, 2010. The younger one, subject of the custody battle, was born on 19th January, 2017. A further relevant fact is, the children were separated sometime in September, 2021. As per recital by the learned Judge of appellant's case in the Family Court, respondent had filed for restitution under section 9 of Hindu Marriage Act, 1955, pursuant to appellant, who was continuing to stay in Delhi with the younger son after separation, going away to reside in her parental home at Odhisa. A further recital is appellant's contention that she never refused to live with respondent, provided he stopped his violent behaviour and took full responsibility for the family.
3. Mr. Kumar submits, after separation his client went back to the USA. On getting information that appellant was personally looking into the travel business in undertaking travel, leaving the younger son behind at home, he gave up his job and returned to India. Hence, he filed for custody of the younger son.
4. We have heard submissions made on behalf of the parties. Main ground of appeal is that the Court below did not inquire and therefore, failed and neglected to take into consideration intelligent preference of the child.
5. Mr. Gupta relies on judgments of the Supreme Court. Firstly on Mamta alias Anju vs. Ashok Jagannath Bharuka reported in (2005) 12 SCC 452. Paragraphs 2 to 4 of the judgment are reproduced below.
"2. The question is whether the custody of the two daughters should be given to the appellant who is the mother or to the respondent who is the father. The parties were divorced by a decree of mutual divorce on 2-3-1998. At that time the ages of the daughters were eight-and-a-half years and five-and-a-half years respectively. Prior to the divorce decree being passed, the respondent had filed an application for being appointed as guardian of his two minor daughters. The application was allowed on 12-6-1998. The appellant was directed to hand over the custody of the two children to their father. The appellant's appeal before the High Court was rejected.
3. The sole ground on which the appeal was rejected was the satisfaction of the Court that the appellant had disqualified herself from getting the custody of the children because she was residing with a stranger without any relation known to law.
4. The respondent himself has since married. The appellant has also married. The ground on which the High Court rejected the appellant's appeal is thus no longer available. We are of the view that before deciding the issue as to whether the custody should be given to the mother or the father or partially to one and partially to the other, the High Court must (a) take into account the wishes of the child concerned, and (b) assess the psychological impact, if any, on the change in custody after obtaining the opinion of a child psychiatrist or a child welfare worker. All this must be done in addition to ascertaining the comparative material welfare that the child/children may enjoy with either parent."
He next relies on Nil Ratan Kundu vs. Abhijit Kundu reported in (2008) 9 SCC 413, inter alia, paragraphs 65 and 72. The paragraphs are reproduced below.
" 65. As already noted, Antariksh was aged six years when the trial Court decided the matter. He was, however, not called by the Court with a view to ascertain his wishes as to with whom he wanted to stay. The reason given by the trial Court was that none of the parties asked for such examination by the court.
xxx xxx xxx
72. We have called Antariksh in our chamber. To us, he appeared to be quite intelligent. When we asked him whether he wanted to go to his father and to stay with him, he unequivocally refused to go with him or to stay with him. He also stated that he was very happy with his maternal grand-parents and would like to continue to stay with them. We are, therefore, of the considered view that it would not be proper on the facts and in the circumstances to give custody of Antariksh to his father, the respondent herein."
Lastly, Mr. Gupta relies on Shazia Aman Khan vs. State of Orrisa reported in (2024) 7 SCC 564. Paragraphs 22 and 23 are reproduced below.
"22. Another principle of law which is settled with reference to custody of the child is the wish of the child, if she is capable of. Reference can be made to Rohith Thammana Gowda v. State of Karnataka, (2022) 20 SCC 550. It was held as under:
?18. We have stated earlier that the question ?what is the wish/desire of the child? can be ascertained through interaction, but then, the question as to ?what would be the best interest of the child? is a matter to be decided by the court taking into account all the relevant circumstances. A careful scrutiny of the impugned judgment would, however, reveal that even after identifying the said question rightly the High Court had swayed away from the said point and entered into consideration of certain aspects not relevant for the said purpose. We will explain the raison d?etre for the said remark.?
23. In the case in hand, vide order dated 12.12.2023 (Shazia Aman Khan v. State of Orrisa, 2023 SCC OnLine SC 1845), we had called the child in Court. We had interacted with the child, the appellants and respondent No. 2 individually in chamber. We found the child to be quite intelligent, who could understand her welfare. She categorically stated that she is happy with the family where she has been brought up. She has other brother and sister. She is having cordial relations with them. She does not wish to be destabilized."
Mr. Gupta submits, impugned judgment be reversed in appeal. The petition for custody be dismissed.
6. Mr. Kumar submits, Mamta alias Anju (supra) is distinguishable on facts. Both the spouses had remarried, thereby removing the ground of appeal before the Supreme Court. In those and other circumstances, there was reference to section 17 (3) in Guardians and Wards Act, 1890. He refers to supplementary counter affidavit dated 23rd September, 2025, wherein stands disclosed order-sheet of the Family Court. He relies particularly on order dated 17th February, 2024. Text of the order is reproduced below.
"17.2.2024: Called out. Parties are present with their learned counsel. Some talks done today with the children of the parties. Some more talks with parent is necessary hence put up on 2.3.2024 for Mediation. Parties are directed to be present on the date fixed.
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Relying on aforesaid and other procedural orders of the Family Court Mr. Gupta submits, there was exercise made by said Court to ascertain preference of the child, then a little over 5 years old. Interaction with the children happened in presence of the learned advocates and parties. Mr. Gupta submits, the restitution and custody cases were being heard together by the Family Court. This purported interaction therefore cannot be said to be in compliance of section 17 (3) of Guardians and Wards Act, 1890.
7. On Nil Ratan Kundu (supra), Mr. Kumar submits, in that case both the father and paternal grandmother of the boy stood accused in relation to death of the mother. The custody was with the maternal grand parents. As such the case too is distinguishable on facts.
8. Mr. Kumar then relies on judgment of the Supreme Court in Shaleen Kabra vs. Shiwani Kabra reported in 2012 (5) SCC 355. He refers us to paragraphs 14 to 17 in 'Law Finder' print of the judgment. The paragraphs are reproduced below.
"14. Upon speaking to the children personally, we also found that they are indeed very much attached to each other. This fact was also noted by the learned Single Judge of the High Court in the impugned judgment, and is also admitted by both the parties in their respective written submissions. Looking to the overall peculiar circumstances of the case, it is our view that the welfare of both the children would be best served if they remain together. In our view it would not be just and proper to separate both brothers, who are admittedly very close to each other.
15. If we are of the view that both the brothers should not be separated and should be kept together, the question would be as to who should be given custody of the children.
16. We are of the view that the children should be with the appellant- father. The Respondent-mother is not in a position to look after the educational need of the elder son and as we do not desire to separate both the brothers, in our opinion, looking to the peculiar facts of the case, it would be in the interest of the children that they stay with the appellant-father.
17. We are sure that the appellant- father, who is a member of Indian Administrative Service and is a well groomed person, with the help of his father, who was also a professor, will be able to take very good care of the children. Their education would not be adversely affected even in Jammu and Kashmir as it would be possible for the Appellant- father to get them educated in a good school in Jammu. We do not believe that the children would remain in company of servants as alleged by the Learned Counsel appearing for the respondent-mother. Father of the appellant i.e. the grandfather of the children would also be in a position to look after the children and infuse good cultural values into them. Normally, grandparents can spare more time with their grand children and especially company of well educated grandparents would not only help the children in their studies but would also help them to imbibe cultural and moral values and good manners. "
He submits, there be no interference and the appeal, dismissed.
9. Ground R in the appeal is reproduced below.
"R. Because, the court below further failed to ascertain that whether the minor child was old enough to form an intelligent preference or consider such a preference and without taking that into consideration or that taking in steps to a certain the same has ordered his custody away from his natural mother."
Relied upon by respondent procedural order dated 17th February, 2024 already stands reproduced above. The ground and said order must be considered in context of relevant facts. They are that the parents who were staying in Ghaziabad/Delhi, separated. Respondent took the elder son with him. Appellant remained behind in Delhi with the younger son. Respondent filed for restitution. Subsequent thereto, appellant moved to her parental home in Odhisa. Respondent then filed for custody of the younger son. Both the cases were taken up together by the Family Court and by impugned judgment, inter alia, custody of the younger son was directed to be given to respondent.
10. We notice that appellant had not protested when respondent had moved away with the elder son. It is he who filed for restitution. We have already narrated above, appreciation by the learned Judge of appellant's contention regarding restitution. Appellant had expressed willingness with rider, inter alia that respondent take care of the entire family. Respondent wants to as he filed for restitution and custody of the younger son, the elder son being with him. It also appears to be undisputed that appellant moved away to Odhisa. Considering that both the parties had lived together in Delhi (Ghaziabad), appellant moving away to Odhisa was cause for respondent to file for custody of the younger son. At this stage Mr. Gupta submits, presently his client is residing in Ghaziabad.
11. In view of aforesaid facts we must consider application to them, the authorities relied upon. In Mamta alias Anju (supra) the Supreme Court noted dissolution of the marriage happened by mutual consent on 2nd March, 1998. Both the daughters at that time and thereafter continued to be with the father. A further fact noted by the Supreme Court was, prior to the mutual divorce, the father had filed for custody of the daughters. Subsequent to the divorce, the mother filed for custody. Her petition was rejected because she was then residing with a stranger. A further subsequent fact was that both parties, at the time when they were before the Supreme Court, had remarried. In those circumstances, the Supreme Court said that question of custody in the situation before it had to be decided upon taking into account wishes of the child concerned, psychological impact, if any on change of custody and further direction for obtaining opinion of a child psychiatrist and child welfare officer. We accept Mr. Kumar's submission that the case is distinguishable on facts. So also his submission in respect of Nil Ratan Kundu (supra).
12. In Shazia Aman Khan (supra) and in the foregoing cases of Mamta alias Anju (supra) and Nil Ratan Kundu (supra) there was reliance and emphasis laid on the provision in section 17 (3) of Guardians and Wards Act, 1890. In Nil Ratan Kundu (supra) the child had interacted with the learned Judges in the Supreme Court at a much later stage and thus had a formed intelligent preference. So we have to see whether there was compliance by the Family Court, with the provisions.
13. As aforesaid, there are two children. Order dated 17th February, 2024 of the Family Court clearly states interaction with the children in presence of the warring parents. The learned Judge thereafter appears to have discharged duty of conciliation, by the Court itself trying to mediate. In our view, it is not necessary to record in the procedural orders, opinion formed by the trial Court on interaction with the child or children, who are subject of custody battles. We are satisfied that the Court below had complied with the provision to interact with the children and in this case, there are two of them who were together till September, 2021.
14. It follows that Shaleen Kabra (supra) can be relied upon for instruction, as facts and circumstances therein are nearest to facts and circumstances of this case. In this case both parents are earning. Financial capability to look after the children is possessed by both. Having said so, we see that it is always the father, who having taken away the elder son on no protest, had first filed for restitution and thereafter for custody. The Family Court, as appears from impugned judgment, went into the facts and circumstances in detail and upon analyzing the evidence came to conclusion that custody of the younger boy is to be with the father. We are satisfied that there is no error, either on facts or in law.
15. Impugned judgment is confirmed. The appeal is disposed of. Mr. Gupta prays for stay of the judgment. The prayer is refused.
(Arindam Sinha,J.)
(Satya Veer Singh,J.)
October 14, 2025
Jaswant
