Chattisgarh High Court
Kamlesh Kumar vs Chintaram on 3 September, 2021
1
FAM No.136 of 2018
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on 19-02-2021
Judgment delivered on 03-09-2021
FAM No. 136 of 2018
[Arising out of judgment and decree dated 4-4-2018 passed by the Judge,
Family Court, Rajnandgaon, in civil suit No.131-A/2015]
1. Kamlesh Kumar S/o Trilochan Sahu, Aged About 30 Years R/o
Village Singhibhedi, Tahsil Mohala, Thana Chilhati, District
Rajnandgaon, Chhattisgarh............(Original Applicant)
---- Appellant
Versus
1. Chintaram S/o Bodhanlal Sahu, Aged About 53 Years
2. Smt. Heeramoti Sahu W/o Chintaram Sahu, Aged About 48 Years
Both R/o Village Domhatola, Near Padumtara, Thana Dhumka, Tahsil
And District Rajnandgaon Chhattisgarh..............(Original Non-
Applicant)
---- Respondents
For Appellant Mr. Sachin Singh Rajput, Advocate
For Respondents Mr. Malay Shrivastava, Advocate
(Proceedings through Video Conferencing)
Hon'ble Mr. Prashant Kumar Mishra, Ag. CJ.
Hon'ble Mrs. Rajani Dubey, J.
CAV Judgment
The following judgment of the Court is delivered by Prashant
Kumar Mishra, Acting Chief Justice.
1. In this appeal challenge is to the judgment and decree passed by
the Family Court, Rajnandgaon dismissing the appellant's
FAM No.136 of 2018
application under Section 25 of the Guardians and Wards Act,
1890 for custody of his minor daughter namely; Vaishnavi.
2. The appellant was married with Tejeshwari @ Teja Bai (since
deceased), daughter of the respondents, on 11-5-2013. Daughter
Vaishnavi was born out of the wedlock on 11-9-2014. The naming
ceremony (Namakarana Sanskar) of the newly born daughter was
scheduled to be held on 17-10-2014, however, the wife of the
appellant Tejeshwari committed suicide the day before the
function i.e. on 16-10-2014. An offence under Section 306 read
with Section 34 of the Indian Penal Code was registered against
the appellant and his parents, however, they were acquitted of the
charge vide judgment of acquittal dated 16-6-2015 rendered by the
Sessions Judge, Rajnandgaon, in ST No.89 of 2014, which is
under challenge before this Court ACQA No.178 of 2015.
3. Application was moved on pleadings that the appellant is a
Teacher and has 10 acres of agricultural land at Rajnandgaon,
therefore, he having sufficient means to raise his daughter and
secure a bright future for her and also for the fact that he has not
performed second marriage, he is entitled to seek custody of his
minor daughter.
4. The respondents (in-laws of the appellant) denied the allegations.
According to them, before the appellant's marriage with their
daughter Tejeshwari he threatened that if they were not married,
he will not allow Tejeshwari to marry any other boy. Due to this
threat, marriage of Tejeshwari was solemnized with the appellant.
Soon after the marriage the appellant used to commit physical
cruelty, which continued despite knowing that she is carrying
pregnancy and he always expressed that he does not want child.
Tejeshwari came to her parental house in July, 2014 for appearing
in B.Sc. examination; for proper care during pregnancy; and for
delivery. During this period the appellant never visited Tejeshwari
FAM No.136 of 2018
to enquire about her well being. On 9-10-2014 he forcibly took
away the deceased and the newly born daughter. Thereafter, he
informed them on 16-10-2014 that Tejeshwari has committed
suicide. The appellant used to threaten that he will perform
second marriage because Tejeshwari has failed to deliver a baby
boy and that he was having an affair with the daughter of
Ghanshyam Sahu of village Singabedi. He used to keep photo of
that girl with him and used to bring and drop her at Dongargaon
BTI. Due to this reason there was always a dispute between the
appellant and the deceased. It was also specifically stated in the
reply filed by the respondents that during rituals after the death of
Tejeshwari, the mother of the appellant namely; Ramshila Sahu
handed over the newly born daughter of the appellant to the
respondent No.2 by saying that they do not have any person to
take care of the child, therefore, respondent No.2 should keep the
child with her.
5. Before proceeding to deal with the merits of the case, it would be
appropriate to notice the principles which govern decision on
dispute concerning custody of child.
6. Reiterating the well settled legal position that while deciding the
dispute pertaining to custody of minor, Courts should keep in
mind the paramount interest of the minor, the Supreme Court, in
Purvi Mukesh Gada v. Mukesh Popatlal Gada and Another 1, has
held that it was incumbent upon the High Court to find out the
welfare of the children before passing the order regarding custody
because the welfare of the child is the supreme consideration in
such matters.
7. In yet another judgment rendered in Roxann Sharma v. Arun
Sharma2 the Supreme Court has held thus :
1 (2017) 8 SCC 819
2 (2015) 8 SCC 318
FAM No.136 of 2018
10. Section 6 of the HMG Act is of seminal
importance. It reiterates Section 4 (b) and
again clarifies that guardianship covers both
the person as well as the property of the
minor; and then controversially states that the
father and after him the mother shall be the
natural guardian of a Hindu. Having said so, it
immediately provides that the custody of a
minor who has not completed the age of 5
years shall ordinarily be with the mother. The
significance and amplitude of the proviso has
been fully clarified by decisions of this Court
and very briefly stated, a proviso is in the
nature of an exception to what has earlier
been generally prescribed. The use of the
word "ordinarily" cannot be overemphasised.
It ordains a presumption, albeit a rebuttable
one, in favour of the mother. The learned
Single Judge appears to have lost sight of the
significance of the use of the word
"ordinarily" inasmuch as he has observed in
paragraph 13 of the Impugned Order that the
Mother has not established her suitability to
be granted interim custody of Thalbir who at
that point in time was an infant. The proviso
places the onus on the father to prove that it is
not in the welfare of the infant child to be
placed in the custody of his/her mother. The
wisdom of Parliament or the Legislature
should not be trifled away by a curial
interpretation which virtually nullifies the
spirit of the enactment.
11. We shall now consider the relevance of
the precedents cited before us by the learned
Senior Counsel for the Father. In Sarita
Sharma v. Sushil Sharma, in defiance of the
orders passed by the Jurisdictional Court in
U.S., the mother, Sarita, had returned to India
with two children from their matrimonial
relationship. The High Court viewed that the
divorce decree and custodial directions having
emanated from a competent Court deserve to
be honoured, and accordingly allowed the
Habeas Corpus Petition and directed the
mother to return the custody of the children to
the father, Sushil. This Court was not
persuaded that further consideration by Courts
in India as to whether the interests of the
children, which were paramount, stood
FAM No.136 of 2018
foreclosed and could not be cogitated upon
again. As regards Section 6 of the HMG Act,
it opined that although it constitutes the
Father as a natural guardian of a minor son it
could not be considered as superseding its
paramount consideration as to what is
conducive to the welfare of the minor. These
observations were reiterated and this Court
reversed the decision of the High Court
holding that the interests and welfare of the
children dictated that the custody should be
with their mother. This case, therefore,
militates against the legal and factual position
which the Father seeks to essay before us. It is
also important to underscore the fact that both
the children were over the age of five, a
fortiori, the custody should not have been
reversed in the case in hand by the High Court
from the Mother to the Father since
Thalbir was then around one year old
and is presently still less than three years
old.
8. While dismissing the appellant's prayer for custody of his
daughter the trial Court has observed that the mother of the
appellant herself handed over the child to the respondent No.2 and
since thereafter neither the appellant nor his parents have ever
enquired about the child nor visited her even on any singular
occasion nor provided any amount of maintenance, therefore,
merely because father (appellant) is the natural guardian, the
custody of the minor daughter cannot be handed over to him.
9. In his statement before the Court, the appellant admits that he has
never met his daughter after she was handed over in possession of
the respondent No.2. He also admits that in his service book he
has not entered the name of his daughter as his nominee and
further that albeit he joined service in 2009, he never applied for
amendment in the service book for making his daughter as
nominee. Appellant's mother has not entered the witness box to
controvert the pleadings in the written statement or in the
deposition of the respondent No.1 Chintaram Sahu (DW-1) that
FAM No.136 of 2018
she had handed over custody of minor girl to the respondent No.2
by saying that there is no one to raise the daughter, therefore, the
respondent No.2 should take care of her well being.
10. Thus, it really becomes important that when the appellant had no
love and affection for his newly born daughter, who was only one
month old when her possession was handed over by his mother to
his mother-in-law (respondent No.2 herein), nor any effort was
made by him seeking her custody soon thereafter and he waited
for the criminal trial to be over. It does not impress our judicial
conscience that the appellant is really interested in the well being
of his daughter.
11. The learned trial Court is fully justified in observing that merely
because the appellant is natural guardian of his minor daughter,
the issue of custody cannot automatically be decided in his favour.
The welfare of the minor is a proposition, which depends on a
host of factors. Sufficient means to raise the minor is one of the
factors, which governs the issue of welfare of minor, but that
cannot always be the sole determining factor. If the mother or
father, who is seeking custody of the minor does not have
attachment with the child in real sense, it will discourage the
Court to direct handing over custody to such appellant.
12. The appellant or his mother having handed over the custody of
minor daughter to the respondent No.2 and thereafter never
visiting his daughter, is by itself sufficient to conclude that he does
not have such love and affection for his daughter, which would
entitle him to seek her custody.
13. The impugned judgment and decree rendered by the trial Court is
based on sound reasoning born from the facts and circumstances
of the case, therefore, we are not inclined to interfere with the
same.
FAM No.136 of 2018
14. Shri Sachin Singh Rajput, learned counsel for the appellant, has
also argued that the Court below should have allowed visitation
rights in favour of the appellant because he is the natural guardian
of the minor daughter.
15. Respondents, appearing through Shri Malay Shrivastava, learned
counsel, have contested this argument by saying that when the
appellant has never tried to visit his daughter, he is not entitled to
visit his daughter.
16. Having considered the submissions advanced by the learned
counsel for the parties on the issue of allowing visitation rights
and considering the facts and circumstances of the case, we are of
the considered view that the appellant being the father and natural
guardian is entitled to visit his daughter.
17. Accordingly, we direct that the appellant shall be allowed to meet
his daughter Ku. Vaishnavi for one (01) hour between 11.00 am to
12.00 noon on first Sunday of every month at the Panchayat
Bhawan of village Domhatola, Near Padumtara, Police Station
Dhumka, Tahsil & District Rajnandgaon where the respondents
reside. It is further directed that during such meeting the parties
shall maintain amicable atmosphere and shall not raise any dispute
or quarrel.
18. As an upshot, the appeal sans merit is liable to be and is hereby
dismissed. However, the appellant is allowed the visitation rights
as mentioned supra. No order as to cost(s).
19. A decree be drawn accordingly.
Sd/- Sd/-
(Prashant Kumar Mishra) (Rajani Dubey)
Acting Chief Justice Judge
Gowri
