[Cites 31, Cited by 0]
Jharkhand High Court
Rakesh Shukla vs Putul Devi Upadhyay on 16 December, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
2025:JHHC:37806-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No.78 of 2023
----- -
Rakesh Shukla, aged about 46 years, son of Late Yogendra
Prasad Shukla, resident of Neel Kuthi Danga, S.C. Sen Road,
P.O. + P.S. Purulia and District Purulia-723101, at present
residing at 143-B, Alok Smrity Budha Colony, Patna, P.O.-
G.P.O., Patna, P.S. Budha Colony, District Patna (Bihar).
... ... Appellant
Versus
1. Putul Devi Upadhyay, wife of Late Ram Ratan Upadhyay.
2. Raj Kishore Upadhyay, son of late Ram Ratan Upadhyay.
3. Rakesh Kumar Upadhyay, son of Late Ram Ratan
Upadhyay.
All residents of Bank Colony, Near New Stadium Pakur,
P.O. Pakur, P.S. Pakur, District Pakur (Jharkhand).
... ... Respondents
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
.....
For the Appellant : Mr. Subhro Sanyal, Advocate
[Through V.C.]
: Mr. Sunil Kr. Mahto, Advocate
For the Respondent : Mr. Ashish Verma, Advocate
: Mr. Manoj Kr. Jha, Advocate
.....
C.A.V. on 28.11.2025 Pronounced on 16/12/2025
Per Sujit Narayan Prasad, J.
Prayer:
1. The instant appeal, under Section 19(1) of the Family
Court Act, 1984, is directed against the judgment and decree
dated 05.01.2023 and 15.01.2023 respectively, passed by
learned Principal Judge, Family Court, Pakur in Original
Guardianship Suit No. 86 of 2019, whereby and whereunder
the petition filed by the plaintiff/appellant under the
Guardians and Wards Act, 1890 for custody of minor son has
been dismissed.
2025:JHHC:37806-DB
Factual Matrix
2. The case of the plaintiff/appellant in brief is that the
plaintiff/appellant is the father of the minor Anirudh Kumar
and plaintiff/appellant was married to Rita Shukla and out
of their wedlock she delivered the minor Anirudh Kumar on
03.11.2009 at Purulia District (West Bengal) in a Nursing
Home and just after eight hours of delivery she died in the
said hospital.
3. Since the wife of plaintiff/appellant died just after
eight hours of delivery of minor Anirudh Kumar the
defendant no. 1 (Putul Devi Upadhyay) was allowed to retain
the custody of the minor with consent of the
plaintiff/appellant.
4. The defendant made promise that after five years
she will hand over/return the minor to the
plaintiff/appellant and at the time of death of wife of the
plaintiff/appellant the father-in-law of the plaintiff/appellant
was alive and he has given assurance to return the minor to
the plaintiff/appellant but in the meantime father-in-law
also died.
5. With the consent of defendant no. 1 Putul Devi
Upadhayay and father-in-law, plaintiff/appellant got
married with another lady who is also willing to get the
custody of minor.
2025:JHHC:37806-DB
6. It is the further case of the appellant that the
defendant no. 2 Raj Kishore Upadhayay and defendant no. 3
Rakesh Kumar Upadhayay are not allowing the defendant
no. 1 Putul Devi Upadhayay to handover the custody of
minor to the plaintiff/appellant.
7. After attaining five years of age minor Anirudh
Kumar custody was promised to be given to
plaintiff/appellant for his welfare and the plaintiff/appellant
is capable to get minor Anirudh Kumar educated and wiling
and ready to do all act for his welfare as his earning is more
than 7 Lakhs per annum.
8. After attaining five years of age the custody of Minor
Anirudh Kumar was not handed over the plaintiff/appellant.
He visited the house of defendant on 12.06.2017 along with
his mother and two younger brothers again on 15.08.2018
and lastly visited on 19.05.2019 but the defendant denied to
return the ward/minor to the custody of the
plaintiff/appellant, as such cause of action arose on
19.05.2019.
9. In the aforesaid circumstances as alleged by the
appellant, an application under the Guardians and Wards
Act, 1890 for return of ward/minor to the custody of the
biological father as a guardian for the benefit and upliftment
to give proper education and care of the minor and the same
has been numbered as the Original Guardianship Suit No.
2025:JHHC:37806-DB
86 of 2019.
10. After, service of notice defendants appeared before
the court and filed their written statement on 13.01.2022.
11. The defendants have stated in their written
statement inter alia that the present suit is not maintainable
in view of the facts and circumstances of the case as well as
in the eyes of law and the suit is without jurisdiction and hit
by the principles of law of waiver, estoppel and
acquiescence.
12. It has been stated that Late Rita, daughter of the
defendant no. 1 (Putul Devi Upadhayay) had been married to
the present plaintiff Rakesh Shukla, who is resident of
Purulia (West Bengal) in the year 2004 and the present
plaintiff was not possessing good character since before his
marriage which was not known to this defendant no. 1
(Putul Devi Upadhayay) or her husband.
13. It has further been stated that Rita became
pregnant and she delivered a male child on 13.11.2009.
14. It has been stated in the written statement that the
plaintiff was not happy with the birth of the male child and
he having done some foul play got her daughter killed and
the doctor treating her after eight hours declared her dead.
15. It has been stated that soon after the death of the
defendant's daughter, the plaintiff got her body released
2025:JHHC:37806-DB
from the hospital quickly and cremated her and the
defendant having found no way out, took a day born child to
native village where defendants maintained him by making
all sorts of expenditure and he is now reading in Class -VI.
16. It has been stated that the appellant/plaintiff has
never taken care of the child during the period of 11 years
nor he spent even a single farthing over his maintenance.
The plaintiff never came back to see the face of the newly
born child, save and except, two and half year back and
therefore, there has been no occasion for giving any
assurance by maternal grandfather or this defendant.
17. Soon after the death of the daughter of defendant
no. 1 (Putul Devi Upadhayay) the appellant/plaintiff married
to a woman with whom he had illicit connection since before
and it is wholly false to say that he had taken second wife
with the consent of the defendant no. 1 (Putul Devi
Upadhayay) especially she had seen the face of this plaintiff
after about two and half year ago.
18. It has been stated that about two and half year
back, the plaintiff came to the house of this defendant and
asked her to allow him to take away the child with him on
the pretext that he will now take care of the child as a legal
guardian and the aforesaid minor Anirudh Kumar, having
heard the proposal of the plaintiff started weeping very
loudly. Therefore, some of the neighbours assembled there
2025:JHHC:37806-DB
and scolded this plaintiff for not taking any care within a
period of about 11 years.
19. It has been stated that the demand of the plaintiff at
this stage is malafide in as much as he is completely in the
clutch of his wife and he now wants to do away the life of
this Anirudh Kumar in order to secure the position of his
son born from his present wife and there has been
reasonable apprehension that this plaintiff wants to kill the
child Anirudh Kumar in order to safeguard the interest of
his son born from the second wife and for this end in view,
he wants to take away the minor child after about 11 years
of his birth.
20. It has also been stated that the plaintiff has annual
income of Rs. 7,00,000/- (Rupees Seven Lacs) as admitted
by him, but curiously enough, he never paid even a single
farthing for maintenance and welfare of the minor child
within a period of 11 years and be wants custody of the
child for killing him on the pretext of giving education which
does not appear reasonable to anybody.
21. It has been asserted that plaintiff claims custody on
the ground of his becoming the legal guardian but the
welfare of the child which is the paramount consideration is
absolutely impossible at the ends of the plaintiff and his
wife, rather there has been serious danger on the life of the
minor child Anirudh Kumar.
2025:JHHC:37806-DB
22. It has been stated that the Hon'ble Supreme Court
repeatedly held that the custody of minor child and his
interest and welfare is paramount consideration and
convenience and pleasure of the parents. The present minor
child has attained the age of about 11 years and he will be
grown up after 5-6 years and then he will take his own
decision about his custody, interest and welfare and so the
present suit is malafide one and is fit to be dismissed.
23. The learned family court, on the basis of respective
claim of the parties assertions and its denial, framed the
following issues:-
(i) Whether the suit is maintainable in its present form?
(ii) Whether the Plaintiff has got valid cause of action for
the suit?
(iii) Whether this court has got territorial jurisdiction to try
the suit?
(iv) Whether the plaintiff being the father of the child
entitled to having custody of the child as prayed?
(v) Whether the custody of minor child in the hand of
plaintiff is for his better welfare and education?
(vi) Any other relief/reliefs, the plaintiff is entitled to?
24. In order to prove its case, the plaintiff/appellant has
examined four witnesses including himself, namely -
P.W. 1 is Rakesh Shukla, the plaintiff himself.
2025:JHHC:37806-DB
P.W. 2 is Shashikala Devi Shukla, the mother of
plaintiff.
P.W. 3 Chandshekhar Sharma.
P.W. 4 Umesh Kumar Shukla
25. Defendants have adduced five witnesses on their
behalf, namely -
D.W. 1 Rakesh Kumar Upadhayay (Defendant no. 03).
D.W. 2 Sheweta Upadhayay.
D.W. 3 Putul Devi Upadhayay (Defendant no.1).
D.W. 4 Raj Kishore Upadhayay (Defendant no.2)
D.W. 5 Manoj Kumar
26. The learned family court, based upon consideration of
principle of handing over the children, and the evidence led
on behalf of parties, has dismissed the suit holding that the
plaintiff/father is not entitled a decree under Section 10 of
Guardians and Wards Act, 1890 of custody of minor, against
which the present appeal has been preferred.
Submission of learned counsel for the appellant:
27. The learned counsel for the appellant has submitted
that the wife of the appellant died just after eight hours of
delivery of minor Anirudh Kumar so the maternal
grandmother, defendant No. 1 (Putul Devi Upadhayay) was
allowed to retain the custody of the minor with consent of the
appellant with promise that after five years she will hand over
/ return the minor to the appellant.
2025:JHHC:37806-DB
28. The learned counsel for the appellant has further
submitted that after attaining five years of age minor Anirudh
Kumar custody was to be given to appellant for his welfare
and the appellant is capable to get minor Anirudh Kumar
educated and wiling and ready to do all act for his welfare.
29. Learned counsel has submitted that the learned trial
court has failed to appreciate that as per provisions of Section
6 of the Hindu Minority and Guardianship Act, 1956, the
natural guardian of a boy is the father in absence of the
mother, as such, the plaintiff appellant was the natural
guardian who should have been granted custody and
guardianship of his minor son.
30. It has been submitted that the learned trial court has
failed to appreciate that the appellant was not disqualified
under the proviso to Section 6 of the Hindu Minority and
Guardianship Act 1956 as the appellant has not ceased to be
a hindu or completely and finally renounced the world by
becoming a hermit or an ascetic.
31. It has been submitted that the learned trial court has
failed to appreciate that the respondents were in temporary
custody of the minor son but the respondents had never
applied for guardianship of the minor before any Court of law
and as such the respondents had no legal right to resist the
guardianship of the father i.e., appellant.
2025:JHHC:37806-DB
32. The Learned Trial Court has failed to appreciate that
the appellant had filed petition for custody of his minor son
as he has better means to support the family.
33. The Learned Trial Court has also failed to appreciate
that the respondent no.1 is an old lady and further the
respondent nos. 2 & 3 are maternal uncles who have their
own families and children to look after.
34. It has been submitted that the learned trial court has
failed to appreciate that temporary custody by respondents
over the minor was merely as a caretaker with the oral
permission of the appellant during difficult times i.e. death of
his mother after child birth.
35. Learned counsel has submitted that the learned trial
court has failed to appreciate that the respondent had never
filed any application under the Guardianship and Wards Act,
to formalize/legalize their right of guardianship over the
minor son.
36. The Learned Trial Court has failed to appreciate the
evidence on record which reflects that the appellant is in no
manner unfit for appointment as guardian of his minor son.
37. The Learned Trial Court has also failed to appreciate
that the appellant had remarried two years after the death of
his first wife and second marriage per se does not render him
unfit to be guardian of his minor son and that a father can be
deprived of his right only when it is shown that he is unfit
2025:JHHC:37806-DB
and the welfare of the minor required that he should not be
allowed to exercise his rights.
38. The Learned Trial Court has failed to appreciate that
the contest was between maternal grandmother and maternal
uncle on one hand and father on the other hand as such the
guardianship ought to have been given to the appellant
(father).
39. The Learned Trial Court has failed to appreciate that
there were no cogent materials placed on record by the
respondents against the appellant to show his unfitness to be
natural guardian of his minor son.
40. It has been submitted that the learned trial court has
failed to appreciate that the respondent nos. 2 & 3 have their
own families and responsibility towards them and the minor
son of the appellant will be deprived of love and affection of
his natural father apparently for no plausible reason.
41. The learned counsel for the appellant based upon the
aforesaid ground has submitted that since there is no
consideration of these facts by learned trial court, as such the
impugned judgment requires interference by this Court.
Submission of learned counsel for the respondent:
42. Per contra, learned counsel for the respondents has
taken the following ground in defending the order passed by
the learned family court.
2025:JHHC:37806-DB
43. It has been contended that marriage late Rita Shukla
(daughter of respondent no.1) was solemnized with Rakesh
Shukla. From their wedlock a child Anirudh Kumar was born
who has been living at his maternal grandmother house since
his birth and appellant or his family members never visited to
see the Anirudh Kumar and he has not paid any single penny
for maintenance of Anirudh Kumar, therefore, the contention
of the appellant that he will take care of all the need of the
said child Anirudh Kumar is not fit to be accept.
44. It has further been contended that the plaintiff never
took care of the child within a period of 11 years nor he spent
even a single penny over his maintenance and his welfare and
plaintiff never came back to see the face of the newly born
child, save and except, two and half year back and therefore,
there has been no occasion for giving any assurance by
maternal grandfather or this defendant. The demand of the
plaintiff regarding the hand over of custody of child at this
stage has been malafide in as much as he is completely in the
clutch of his 2nd wife.
45. It has further been contended that after the death of
first wife the plaintiff very soon solemnized 2nd marriage with
Priyanka Devi and from Priyanka Devi he has a son Anurag.
The learned counsel of the respondents further strongly taking
plea that the step mother and step brother never will be able
to accept the minor Anirudh as a son and brother respectively
2025:JHHC:37806-DB
and in that situation the welfare of the child will be
jeopardized.
46. It has further been contended that Plaintiff/Appellant
with connivance and collusion with his wife want to take
custody of the child Anirudh with their ulterior motive, so it is
not in the interest and welfare of the child to be handed over
the custody of child to his maternal grandmother as his own
mother and maternal uncle is his own father.
47. It has been submitted that since the learned family
court based upon the aforesaid grounds and on consideration
of the aforesaid fact and particularly taken into consideration
the welfare of child as paramount consideration, has passed
the impugned judgment which requires no interference by this
court.
Analysis
48. We have heard learned counsel for the parties and gone
through pleading available on record as also the finding
recorded by learned family court.
49. This Court, before going to examine as to whether the
finding recorded by learned family court denying the custody
of the minor son to the father, the appellant herein, requires
interference needs to refer herein the provision of law as
provided under the Hindu Minority and Guardianship Act, 1956
and as also the Guardians and Wards Act, 1890.
2025:JHHC:37806-DB
50. Section 6 of the Hindu Minority and Guardianship Act,
1956 deals with natural guardian of a Hindu minor, Section 9
thereof deals with the testamentary guardians and their
powers and Section 13 deals with the provision of welfare of
the minor to be paramount consideration. For ready reference,
these provisions are quoted as under:
"6. Natural guardians of a Hindu minor.--The natural
guardians of a Hindu minor; in respect of the minor's
person as well as in respect of the minor's property
(excluding his or her undivided interest in joint family
property), are-- (a) in the case of a boy or an unmarried
girl--the father, and after him, the mother: provided that
the custody of a minor who has not completed the age of
five years shall ordinarily be with the mother; (b) in the
case of an illegitimate boy or an illegitimate unmarried
girl--the mother, and after her, the father; (c) in the case
of a married girl--the husband: Provided that no person
shall be entitled to act as the natural guardian of a minor
under the provisions of this section-- (a) if he has ceased
to be a Hindu, or (b) if he has completely and finally
renounced the world by becoming a hermit (vanaprastha)
or an ascetic (yati or sanyasi). Explanation.--In this
section, the expressions "father" and "mother" do not
include a step-father and a step-mother.
9. Testamentary guardians and their powers.--(1) A
Hindu father entitled to act as the natural guardian of his
minor legitimate children may, by will appoint a guardian
for any of them in respect of the minor's person or in
respect of the minor's property (other than the undivided
interest referred to in section 12) or in respect of both. (2)
An appointment made under sub-section (1) shall have no
effect if the father predeceases the mother, but shall revive
if the mother dies without appointing, by will, any person
as guardian. (3) A Hindu widow entitled to act as the
natural guardian of her minor legitimate children, and a
Hindu mother entitled to act as the natural guardian of
2025:JHHC:37806-DB
her minor legitimate children by reason of the fact that the
father has become disentitled to act as such, may, by will,
appoint a guardian for any of them in respect of the
minor's person or in respect of the minor's property (other
than the undivided interest referred to in section 12) or in
respect of both. (4) A Hindu mother entitled to act as the
natural guardian of her minor illegitimate children may;
by will, appoint a guardian for any of them in respect of
the minor's person or in respect of the minor's property or
in respect of both. (5) The guardian so appointed by will
has the right to act as the minor's guardian after the death
of the minor's father or mother, as the case may be, and to
exercise all the rights of a natural guardian under this Act
to such extent and subject to such restrictions, if any, as
are specified in this Act and in the will. (6) The right of the
guardian so appointed by will shall, where the minor is a
girl, cease on her marriage.
13. Welfare of minor to be paramount consideration.--
(1) In the appointment of declaration of any person as
guardian of a Hindu minor by a court, the welfare of the
minor shall be the paramount consideration. (2) No person
shall be entitled to the guardianship by virtue of the
provisions of this Act or of any law relating to
guardianship in marriage among Hindus, if the court is of
opinion that his or her guardianship will not be for the
welfare of the minor."
51. It needs to refer herein that the word 'after' as used in
Section 6(a) can be construed so as to save it from being
unconstitutional the presumption being that the legislature
acted in accordance with the constitution. Moreover, when
Sections 4 and 6 of the Hindu Minority and Guardianship
Act are construed harmoniously the word 'after' can be
understood to mean 'in the absence of', thereby referring to
father's absence from the care of the minor's property or
person for any reason whatever. Hence, in such situations
2025:JHHC:37806-DB
mother can act as natural guardian of the minor during the
lifetime of the father, who would be deemed to be 'absent'
reference in this regard may be taken from the judgment
rendered by the Hon'ble Apex Court in the case of Githa
Hariharan v. Reserve Bank of India, (1999) 2 SCC 228.
52. It is evident from Section 13 that while appointing any
person as guardian of a Hindu minor the paramount
consideration is the welfare of the minor and no person shall
be entitled to the guardianship by virtue of the provisions of
this Act or of any law relating to guardianship in marriage
among Hindus, if the court is of opinion that his or her
guardianship will not be for the welfare of the minor.
53. The matter to be considered by the Court in appointing
guardian has been made under the provisions of Guardians
and Wards Act, 1890. For ready reference, the relevant
provision of the Act, 1890 is quoted as under:
"4. (1) "minor" means a person who, under the provisions of
the Indian Majority Act, 1875, (9 of 1875) is to be deemed
not to have attained his majority:
(2) "guardian" mean's a person having the care of the
person of a minor or of his property, or of both is person and
property:
7. Power of the Court to make order as to guardianship.--(1)
where the Court is satisfied that it is for the welfare of a
minor that an order should be made-- (a) appointing a
guardian of his person or property, or both, or (b) declaring
a person to be such a guardian, the Court may make an
order accordingly. (2) An order under this section shall
imply the removal of any guardian who has not been
appointed by will or other instrument or appointed or
2025:JHHC:37806-DB
declared by the Court. (3) Where a guardian has been
appointed by will or other instrument or appointed or
declared by the Court, an order under this section
appointing or declaring another person to be guardian in his
stead shall not be made until the powers of the guardian
appointed or declared as aforesaid have ceased under the
provisions of this Act.
17. Matters to be considered by the Court in appointing
guardian.--(1) In appointing or declaring the guardian of a
minor, the Court shall, subject to the provisions of this
section, be guided by what, consistently with the law to
which the minor is subject, appears in the circumstances to
be for the welfare of the minor. (2) In considering what will
be for the welfare of the minor, the Court shall have regard
to the age, sex and religion of the minor, the character and
capacity of the proposed guardian and his nearness of kin
to the minor, the wishes, if any, of a deceased parent, and
any existing or previous relations of the proposed guardian
with the minor or his property. (3) If the minor is old enough
to form an intelligent preference, the Court may consider
that preference. 1 * * * * * (5) The Court shall not appoint or
declare any person to be a guardian against his will."
54. The law, therefore, is well settled that even though the
father is the natural guardian as stipulated in the statute but
the paramount consideration in the matter of handing over the
custody of the child is welfare of the child.
55. The law relating to custody of minors has received an
exhaustive consideration by the Hon'ble Apex Court in a series
of pronouncements. In the case of Gaurav
Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 the principles
of English and American law in this regard were considered by
Hon'ble Apex Court to hold that the legal position in India is
not in any way different. Noticing the judgment of the Bombay
2025:JHHC:37806-DB
High Court in Saraswatibai Shripad Ved v. Shripad
Vasanji Ved [AIR 1941 Bom 103] , Rosy Jacob v. Jacob A.
Chakramakkal (1973) 1 SCC 840 and Thrity Hoshie
Dolikuka v. Hoshiam Shavaksha Dolikuka (1982) 2 SCC
544, the Hon'ble Apex eventually concluded in paras 50 and
51 which reads as under:
"50. [T]hat when the court is confronted with conflicting
demands made by the parents, each time it has to justify
the demands. The court has not only to look at the issue
on legalistic basis, in such matters human angles are
relevant for deciding those issues. The court then does not
give emphasis on what the parties say, it has to exercise a
jurisdiction which is aimed at the welfare of the minor. As
observed recently in Mausami Moitra Ganguli
case [Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7
SCC 673] , the court has to give due weightage to the
child's ordinary contentment, health, education,
intellectual development and favourable surroundings but
over and above physical comforts, the moral and ethical
values have also to be noted. They are equal if not more
important than the others.
51. The word 'welfare' used in Section 13 of the Act has to
be construed literally and must be taken in its widest
sense. The moral and ethical welfare of the child must also
weigh with the court as well as its physical well-being.
Though the provisions of the special statutes which govern
the rights of the parents and guardians may be taken into
consideration, there is nothing which can stand in the way
of the court exercising its parens patriae jurisdiction
arising in such cases."
56. Thus, the Hon'ble Apex Court has categorically held that
while considering the issue of custody of the minor child the
court has not only to look at the issue on legalistic basis, in
such matters human angles are relevant for deciding those
2025:JHHC:37806-DB
issues. Further it has been held that the Court should not
emphasis only on what the parties say rather the welfare of
the minor should be paramount consideration. Further the
Hon'ble Apex Court has opined that the Court has to give due
weightage to the child's ordinary contentment, health,
education, intellectual development and favourable
surroundings but over and above physical comforts, the moral
and ethical values have also to be noted.
57. The Hon'ble Apex Court in the aforesaid Judgment
interpreted the word 'welfare' used in Section 13 of the Act and
has observed that it must be taken in its widest sense, though
the provisions of the special statutes which govern the rights
of the parents and guardians may be taken into consideration,
there is nothing which can stand in the way of the court
exercising its "parens patriae jurisdiction" arising in such
cases.
58. It needs to refer herein that in child custody matters,
the court's "parens patriae" jurisdiction empowers the Court to
act as a guardian for the child, prioritizing their best interests
above all else. This principle, allows the court to intervene and
make decisions that protect the child's welfare, even if it
means overriding the wishes of the parents or guardians.
59. In the case of Nil Ratan Kundu v Abhijit Kundu,
2008 (9) SCC 413 the Hon'ble Apex Court has held that in
deciding a difficult and complex question as to the custody of
2025:JHHC:37806-DB
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.
60. In the case of Yashita Sahu v State of Rajasthan,
(2020) 3 SCC 67, the Hon'ble Apex Court has propounded
that the welfare of the child is paramount in matters relating
to custody. In this context, we may refer to Para 22 thereof,
which reads as follows:
2025:JHHC:37806-DB
22. A child, especially a child of tender years requires the
love, affection, company, protection of both parents. This
is not only the requirement of the child but is his/her
basic human right. Just because the parents are at war
with each other, does not mean that the child should be
denied the care, affection, love or protection of any one of
the two parents. A child is not an inanimate object which
can be tossed from one parent to the other. Every
separation, every reunion may have a traumatic and
psychosomatic impact on the child. Therefore, it is to be
ensured that the court weighs each and every
circumstance very carefully before deciding how and in
what matter the custody of the child should be shared
between both the parents. Even if the custody is given to
one parent the other parent must have sufficient visitation
rights to ensure that the child keeps in touch with the
other parent and does not lose social, physical and
psychological contact with any one of the two parents. It is
only in extreme circumstances that one parent should be
denied contact with the child. Reasons must be assigned if
one parent is to be denied any visitation rights or contact
with the child. Courts dealing with the custody matters
must while deciding issues of custody clearly define the
nature, manner and specifics of the visitation rights.'
61. In the case of Gaytri Bajaj v. Jiten Bhalla, (2012) 12
SCC 471, the Hon'ble Apex Court has observed that it is the
welfare and interest of the child and not the rights of the
parents which is the determining factor for deciding the
question of custody and the question of welfare of the child
has to be considered in the context of the facts of each case
and decided cases on the issue may not be appropriate to be
considered as binding precedents. For ready reference the
relevant paragraph of the aforesaid judgment is being quoted
as under:
2025:JHHC:37806-DB
14. From the above it follows that an order of custody of
minor children either under the provisions of the
Guardians and Wards Act, 1890 or the Hindu Minority
and Guardianship Act, 1956 is required to be made by
the court treating the interest and welfare of the
minor to be of paramount importance. It is not the
better right of either parent that would require
adjudication while deciding their entitlement to custody.
The desire of the child coupled with the availability of a
conducive and appropriate environment for proper
upbringing together with the ability and means of the
parent concerned to take care of the child are some of the
relevant factors that have to be taken into account by the
court while deciding the issue of custody of a minor. What
must be emphasised is that while all other factors are
undoubtedly relevant, it is the desire, interest and welfare
of the minor which is the crucial and ultimate
consideration that must guide the determination required
to be made by the court.
62. It is settled position of law that there cannot be any
straitjacket formula in the matters of custody. 'Welfare of the
child' is of paramount importance, reference in this regard
may be taken from the judgment rendered by the Hon'ble Apex
Court in the case of Gautam Kumar Das v. State (NCT of
Delhi), (2024) 10 SCC 588.
63. In the case of Shazia Aman Khan v. State of Orissa,
(2024) 7 SCC 564 the Hon'ble Apex Court while referring the
ratio of Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC
413 has observed that welfare of the children is to be seen
and not the rights of the parties, the relevant paragraph of the
aforesaid judgment is being quoted as under:
2025:JHHC:37806-DB
19. In Nil Ratan Kundu v. Abhijit Kundu [Nil Ratan
Kundu v. Abhijit Kundu, (2008) 9 SCC 413] , this Court
laid down the principles governing custody of minor
children and held that welfare of the children is to be seen
and not the rights of the parties by observing as under :
(SCC pp. 428-29, paras 52 & 55)
"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 minor, a court
of law should keep in mind 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.
***
55. We are unable to appreciate the approach of the courts
below. This Court in a catena of decisions has held that
the controlling consideration governing the custody of
children is the welfare of children and not the right of their
parents."
(emphasis supplied)
21. This Court in Roxann Sharma v. Arun
Sharma [Roxann Sharma v. Arun Sharma, (2015) 8 SCC
2025:JHHC:37806-DB
318 : (2015) 4 SCC (Civ) 87] , opined that the child is not a
chattel or ball that it is bounced to and fro. Welfare of the
child is the focal point. Relevant lines from para 18 are
reproduced hereunder : (SCC p. 328)
"18. ... There can be no cavil that when a court is
confronted by conflicting claims of custody there are no
rights of the parents which have to be enforced; the child
is not a chattel or a ball that is bounced to and fro the
parents. It is only the child's welfare which is the focal
point for consideration. Parliament rightly thinks that the
custody of a child less than five years of age should
ordinarily be with the mother and this expectation can be
deviated from only for strong reasons."
20. This Court has consistently held that welfare of the
child is of paramount consideration and not personal law
and statute. In Ashish Ranjan v. Anupma Tandon [Ashish
Ranjan v. Anupma Tandon, (2010) 14 SCC 274 : (2011) 4
SCC (Civ) 948] , this Court held as under : (SCC p. 282,
para 19)
"19. The statutory provisions dealing with the custody of
the child under any personal law cannot and must not
supersede the paramount consideration as to what is
conducive to the welfare of the minor. In fact, no statute
on the subject, can ignore, eschew or obliterate the vital
factor of the welfare of the minor."
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 [Rohith Thammana
Gowda v. State of Karnataka, (2022) 20 SCC 550: 2022
SCC OnLine SC 937] case. It was held as under: (SCC
para 18)
"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
2025:JHHC:37806-DB
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."
64. Thus, from the aforesaid settled position of law it is
evident that the consideration governing the custody of
children is the welfare of the children" and not the rights of
the parties." Further, the welfare of child is determined neither
by economic affluence nor a deep mental or emotional concern
for the well-being of the child. The answer depends on the
balancing of all these factors and determining what is best for
child's total well-being.
65. In the backdrop of the provisions of law and judicial
pronouncements, in order to assess the welfare of the minor
child, we have gone through the oral evidence adduced by the
parties.
66. P.W. 1 Rakesh Shukla is the plaintiff of the case has
stated in his examination-in-chief that he filed the instant suit
against his mother-in-law Putul Devi Upadhayay, brother-in-
law Raj Kishore Upadhayay and another brother-in-law
Rakesh Kumar Upadhayay. He has filed this case to get back
custody of his son Anirudh Kumar who is 12 years of age and
his date of birth is 03.11.2009. Her son birth take place at
Rameshwar Lal Singhania Seva Pratisthan Hospital at Purulia.
At the time of birth of his son he, his mother-in-law and his
parents were present there. His wife name was Rita Devi
Shukla. His wife died just after 7-8 hour of delivery of child
2025:JHHC:37806-DB
and his mother-in-law asked him to permit her to retain the
custody of minor due to tender age of minor and took the
newly born boy for his look after and care. Some days they
kept his son at Ranchi Thereafter they carry his son at Patna
and thereafter they bring his son at Masouri. Thereafter he
went to Patna and his mother-in-law asked him that you are
an educated person and you will do the job at Patna.
Thereafter he applied for job and he get job as a teacher at
Patna. He went every Saturday from Patna to Masouri to look
after of his son and he giving entire expense towards his son
maintainance and cae and also giving Monday He solemnized
2nd marriage with the knowledge of his in-laws. In the month
of October he went to meet his son at the rented house and he
found no person was present there then he asked where about
of his in-laws then someone told him that his in-laws have
vacated the house and went somewhere. Thereafter he has
searched where about of his in law's then he knows through
face book that his in-laws are now living at Pakur. In the
summer vacation he had come at Pakur on 12.06.2017 and
demanded to return back custody of his son. But in-laws
refused to hand over the custody of his son. Thereafter he
further went at Pakur on 15.08.2018 and lastly on 29.05.2019
and to demanded the hand over the custody of his son but the
in-laws further refused to returned the custody of child. Then
he filed the instant suit. He further stated that his annual
income is more than Rs. 7 lakhs and he residing at Patna and
2025:JHHC:37806-DB
he want to give higher education to his son so that his son
future will be bright. Because he is a teacher and residing at
Patna which is a good education hub city and in comparison,
of Pakur better facility available in Patna. He claimed the
custody and guardianship of his child as biological father.
67. During cross-examination he stated that his marriage
was solemnized with Rita Devi on 27th June, 2004. After five
years of marriage his wife became pregnant. The child was
born on 09.11.2009 and at that time he was present with his
wife. in para-11 he admitted that at the time of his marriage
he was not a teacher rather he was running a coaching
institute. In para 13 admitted that after death of first wife he
solemnized 2nd marriage within two years and from the
second marriage he has a son now aged nine years. The name
of his second wife is Priyanka Devi Shukla. In para 14 he
stated that he is a teacher of CBSE affiliated school but he is
not a government teacher. He further admitted that in service
book he nominated the name of his second wife. He further
stated that he had given Rs. 4,000/- per month maintenance
expense for his elder son to his mother-in-law.
68. P.W.-2 is Shashikala Devi Shukla has stated in her
examination-in-chief that Rakesh Shukla is her elder son. Her
son has filed the instant suit against Rakesh Upadhayay,
Kishore Upadhayay and their mother for handing over the
custody of a child. The child is her first grandson. The child
was born in the year 2009 at Singhaniya Hospital. At that
2025:JHHC:37806-DB
time, she and her son and mother-in-law of her son were
present there. After birth of her grandson her daughter-in-law
has been died within six hours of the birth of child. The last
rite of her daughter-in-law was commenced at Purulia by her
son. Her Samdhan made request to keep child custody and on
her request, they giving the custody of newly born grandson to
her. Her Samdhin asked her that she took the boy for his care
and you don't worry when the boy became school going then
she will return the boy. Since then, the child is in custody of
her Samdhan. They took the child at Ranchi thereafter Ranchi
to Masouri. Her son usually went to Masouri from Patna for
look after the child and at that time her son was doing job at
Patna. They went twice to see the child at Masouri. After that
the laws of his son left Masouri and came at Pakur. They did
not inform to them about leaving Masouri and shift to Pakur.
Anyhow they search and know where about the in-laws who
are living at Pakur. They came at Pakur in the year 2017. They
came Pakur to bring back the child because at that time the
grandfather of child fell ill and his grandfather desire to see
the grand son and at that time her husband was on dialysis.
They have made request to hand over the custody of child but
in-laws not handover the custody of child to them. Till now the
child is in the custody of in-laws of his son. Her son is doing
the job as a teacher in a English school. His son wants to keep
the child with him for the better education. His son is
competent to care and maintained the child.
2025:JHHC:37806-DB
69. During cross-examination she stated in para 6 & 7 of
her cross-examination that at the time of birth of child her
daughter-in-law was crying due to pain and her son brought a
doctor. In para 11 she stated that she is not remember in
which year the grandfather of child was fall ill. They came at
Pakur in the month of June, 2017 for taking custody of child.
At that time the age of the child was 11 years. When the
custody of the child not handover then they not approached
the police and not narrate the incident to the surrounding
persons. In para 13 she further admitted that her elder son
has solemnized 2nd marriage and from 2nd marriage he has a
son namely Anurag now aged is 08 years. In para 14 she
stated that the step mother wants to keep her grandson
Anirudh 2 with them. The step mother already has one son. In
para 16 she admitted that Anirudh is studying in his maternal
grandmother's house. In para 18 she stated that from her
daughter-in-law (sister's daughter) they came to know about
the maternal grandmother of Anirudh is living at Pakur In
para 20 she stated that although the maternal grandmother of
Anirudh would send him to a renowned college, but they have
objection because they want to keep the custody of child with
them.
70. P.W.-4 is Umesh Kumar Shukla has stated in his
examination-in-chief that he identified the Rakesh Shukla and
Putul Devi Upadhayay. Rakesh Shukla is his elder brother.
The first marriage of his brother was solemnized with late Rita
2025:JHHC:37806-DB
Devi Shukla. The death of Rita Devi was occurred on
03.11.2009 within 5-7 hour of child birth. At that time his
mother and mother of Rita Devi were present there. The last
rite and rituals were performed by his brother on the next day.
After the death of Rita Devi, Putul Devi asked them that the
child is very teenage so custody of the child hand over her and
the child grow up and will going school then they return the
child to them. After that Putul Devi took the child and keep
the child with them. Thereafter they took the child at Ranchi
and after that at Masouri. Thereafter his brother was doing the
job at Patna and he continuously went at Masouri to saw the
child. When the child attained the age of 3-4 years then in-
laws took the child from Masouri to another place thereafter
his brother search the child and found that they are living at
Pakur. Thereafter on June, 2017 they came at Pakur and went
to the house of in-laws. Those persons identified them but
they did not give the custody of the child and calling nearby
the persons and driven out from there. The instant suit has
been filed by his brother for handing over the custody of the
child. His brother is living at Patna and he is a teacher and his
brother is competent for care and maintaining of the child.
71. During cross-examination, he stated in para 4 And
admitted that his elder brother solemnized 2nd marriage. After
the two years of death of his first wife and from second wife
his brother has a son namely Anurag aged about 09 years. In
para 6 he stated that Rita Devi had died at night and on the
2025:JHHC:37806-DB
next day they took the dead body to their house and at that
time the child was in custody of Putul Devi. In para 9 he
stated that even if the maternal grand mother would send the
child to study in a good school, they 'still not renounce the
claim of child custody because his brother wants the child in
his guardianship and wants to send him to good school for
studies.
72. Let us have to discuss the evidence of the defendant.
73. D.W. 1 is Rakesh Kumar Upadhayay has stated that
Rakesh Shukla is his brother-in-law. His sister Rita Shukla
marriage was solemnized with Rakesh Shukla. His sister Rita
Shukla expired on 03.11.2019 after the delivery of a son. The
child is alive and his name is Anirudh Kumar. Since birth
Anirudh Kumar is living with his maternal grandmother.
Rakesh Shukla never giving any expenses regarding the
maintenance of Anirudh Kumar. Even If the Rakesh Shukla
wants to keep the custody of child Anirudh Kumar, they still
are not ready to handover.
74. During cross examination he stated that he is living at
Pakur for last ten years. They are natively living at Masouri
Patna and they have lived in a rented house of Jay Kishan
Singh. They have left Masouri about ten years before. His
brother-in-law Rakesh Shukla is the residing at Purulia (West
Bengal). At the one of delivery of his sister Rita Shukla she
was admitted at Purulia Hospital. The matrimonial house of
his sister was at Purulia. After the birth of the child Rakesh
2025:JHHC:37806-DB
Shukla giving the custody of the child to the lap of his mother
and this person left there. Rakesh Shukla is giving the custody
of the child. They. never fled there. He has no knowledge
where the Rakesh Shukla is presently posted. In para 15 he
stated that they have not giving any information to Rakesh
Shukla about the leaving the Masouri because Rakesh Shukla
was not their contact. In para 16 he stated that it is true that
the Rakesh Shukla is the biological father of Anirudh but in
last 13 years Rakesh Shukla was not in contact
Dt.05.01.2023. He is contact with them or Anirudh hence
Rakesh Shukla is not entitled to get custody of Anirudh.
75. D.W. 2 is Sheweta Upadhayay has stated in her
examination in chief that the marriage of her younger sister-
in-law late Rita Shukla was solemnized with Rakesh Shukla.
From their wedlock a child Anirudh Kumar was born who is
living at his maternal grandmother house since his birth.
Rakesh Shukla or his family members never visited to see the
Anirudh Kumar and he has not paid any single penny for
maintenance of Anirudh Kumar. They want to keep the
custody of Anirudh Kumar.
76. During cross-examination she stated that her marriage
was solemnized in the 2000-2001. At the time of marriage her
husband was doing the business and living at Masouri Patna.
After her marriage they lived at Masouri about 12 -3 years
thereafter they came at Pakur last 10 to 12 years. Rakesh
Shukla never came her house at Pakur. In para 6 she stated
2025:JHHC:37806-DB
that at the time of birth of Anirudh Kumar she did not go
Purulia West Bengal but her mother-in-law went there and
she took the custody of child Anirudh Kumar. At that time
they are living at Masouri.
77. D.W. 3 is Putul Devi stated in her examination in chief
that her daughter Rita Shukla marriage was solemnized with
Rakesh Shukla. After the birth of child her daughter died but
the child is alive. His name is Anirudh Kumar. At the time of
birth of Anirudh Kumar, she was present at Purulia Hospital.
After the death of her daughter Rakesh Shukla and his family
members not took the custody of newly born Anirudh Kumar
and they giving the custody of child in her lap and went away.
Then they came back with the child to native place at
Massouri. Since then Rakesh Shukla and his family member
never came to take Anirudh nor they give any maintenance
expenses for Anirudh. Now Anirudh is studying in DAV
School, Pakur and they have maintained his livelihood,
educational expenses and in future they want to keep him and
will provide with all expenses and education. She does not
know that Rakesh Shukla has performed another marriage or
not and she has not contact with him.
78. During cross-examination she has stated that she does
not know when she has received the notice from the court but
that has one year ago. She came at court for one time to put
her signature. She and her son have put their signature which
was in typed paper. Rakesh Shukla by his own accord
2025:JHHC:37806-DB
handover the child in her lap. She never asked him to give the
child. In para 11 she stated that because their business was
failed at Masouri then they shift at Pakur with family. Masouri
is ahead of five Station from Patna junction. She further stated
in para 12 that the Patna is the capital of Bihar State and very
big city in comparison of Pakur. She further stated that in
Patna so many high-quality educational institutes are
available in comparison of Pakur. In para 14 she admitted that
it is true that they are fell in love affection with the child.
79. D.W. 4 is Raj Kishore Upadhayay stated that Rita is his
sister and marriage of Rita was solemnized with Rakesh
Shukla and from their conjugal life a son namely Anirudh was
born at Purulia. At that time his mother was present there.
When he got information then he rushed to Purulia from
Musouri and he found that his sister Rita Kumari was died in
hospital but the child was alive and in the lap of his mother.
At that time the in laws of his sister was not present there and
they are not ready to keep the custody of child. Thereafter he
and his mother took the child at Musouri. Anirudh is now
studying at DAV school, Pakur in class VII. After that there is
no relation with the father of Anirudh. They knows about that
Rakesh Shukla was solemnized 2nd marriage and have a
father of child. Anirudh is fully healthy and they care the child
and the child is know them as a mother and father.
80. During cross-examination he stated that Putul Devi is
his step mother. His care is taking by his step mother. His
2025:JHHC:37806-DB
sister matrimonial house at Purulia. When his sister was
admitted in hospital at Purulia at that time his mother was
present there. She was admitted by his mother and Rakesh
Shukla. His mother went there for 10 to 15 days at Purulia
and stayed in the house of complaint at any police station or
court. In para 10 he stated that at Patna is a good education
system in comparison of Pakur Rakesh Shukla never came to
meet his family. In para 13 he stated that it is true that
Rakesh Shukla is the father of the child and it is wrong to say
that he is the legal guardian of the child.
81. D.W. 5 is Manoj Kumar has stated in his examination in
chief that Rakesh Shukla is the father of Anirudh Kumar. The
birth of Anirudh take place at his house and after that he was
come at Musouri. Anirudh was previously lives at Musouri
with his maternal uncle and maternal grandmother. Now he is
living at Pakur. The mother of the Anirudh has been died so
he lived with his maternal grandmother. He is neighbor of the
maternal grandmother of Anirudh at Musouri. The father of
Anirudh never came at Musouri to see his son and he never
pay any expense regarding the care and maintenance of child.
The child is living very happily and healthy at Musouri with
his maternal grandmother. He in the interval came at Pakur
and meet with the Child and found that the child is very
happy and do his study.
82. During cross-examination he has stated that there is no
relation with the maternal grandmother and maternal
2025:JHHC:37806-DB
grandfather of Anirudh only he is the friend. He giving milk to
the family of maternal grandmother. He does the business of
supply of milk.
83. It is evident from the testimony of the appellant that
during course of cross examination in para 13 admitted that
after death of first wife he solemnized 2nd marriage within two
years and from the second marriage he has a son now aged
nine years. He further admitted that in service book he
nominated the name of his second wife. He further stated that
he had given Rs. 4,000/- per month maintenance expense for
his elder son to his mother-in-law. But the learned Family
Court has specifically observed that in this regard the plaintiff
has totally failed to produce any chit of paper which support of
his version that he pays regularly maintenance amount of his
son. It has further been observed by the learned Family Court
that appellant has not produced any bank pass book, post
office pass book or any statement of account which shows he
has ever withdrawn Rs 4,000 from his account to pay the
amount to his mother-in-law towards his son's maintenance
expense.
84. Thus, it is evident that the plaintiff/appellant did not
pay any amount of maintenance regularly to the education,
clothes, fees, fooding & lodging of his elder minor son as
stated by him. Thus, it is now established fact that appellant
never paid even a single farthing for maintenance and welfare
of the minor child within a period of 11 years i.e. from 2009 to
2025:JHHC:37806-DB
2020. Thus, question arises herein that when the appellant
has not taken care of his son for long 11 years then how this
Court presume that appellant will take care of all the need of
growing adolescent child.
85. Further After considering the evidence of
plaintiff's/appellants witnesses, it appears that all the four P.
Ws witnesses clearly admitted that they voluntarily gave the
custody of the child to maternal grandmother Putul Devi
(respondent no.1 herein) when the mother of the child expired.
From analysis of the entire evidence, it indicates that due to
the death of Rita Shukla (daughter of respondent no.1) the
plaintiff/appellant and his family left the child in lap of Putul
Devi at hospital and they took the dead body of Rita Shukla
for her last rite and on next day they cremated the dead body
as per Hindu rites and rituals. It appears from the evidence
that they never gave the attention to newly born son due to
vested interest of the plaintiff/appellant and newly born child
has been neglected by the plaintiff all this time hence in
compelling circumstances maternal grandmother of child took
the custody and took him to her village at Musouri.
86. The learned Family Court has given its finding upon the
question that why the family member of the plaintiff/appellant
not took the custody of the newly born child at that time. The
learned Family Court has concluded the mother died in
suspicious circumstances and appellant and his family
wanted to get rid of the newly born child and do away with the
2025:JHHC:37806-DB
child's responsibility and further plaintiff wanted to marry
with other women therefore, the newly born child would be the
obstacle in his future plans so they left the newly born child in
the lap of maternal grandmother.
87. It is a settled law as discussed and referred in the
preceding paragraphs that in all matters of custody
irrespective of the law under which the same is sought, the
welfare of the child is of paramount-importance. The Court
has not only to look at the issue on legalistic basis but has to
take into consideration the human angles as well.
88. Now the question arises herein that whether the step
mother and step brother will accept the new family member as
their own and treat child Anirudh aged about 16 years boy in
their house. Whether in future they accept his presence and
ready to share the household, room, clothes, food and other
several domestic daily essential things.
89. This Court is conscious to the fact that aside from the
societal norm not every step mother has negative influence on
all round grooming and nurturing of child but in the instant
case where the child is living with his maternal grandmother
and maternal uncle and with maternal aunt and consider
them the only family from his birth then perhaps he will not
be able to adjust in new atmosphere of his step mother and
step brother and a person (plaintiff/appellant). Till date child
Anirudh understand his maternal grandmother as his mother
2025:JHHC:37806-DB
and maternal uncle as a father and guardian and if the
custody of the child be given to his biological father who never
even bothered to meet and see his own child all these year and
whom the child had never seen or even met and not even
recognized as a father then the child will, naturally be
reluctant to accept unknown person the plaintiff/appellant as
his father and plaintiff's/appellant's second wife as mother.
90. The learned Family Judge while passing the judgment
has taken care of settled position of law that the welfare of the
child is paramount consideration while handing over the
custody of the minor.
91. From the record it is evident that the child is living
since his birth in the care of his maternal grandmother. It
requires to refer herein that moral ethics, character would be
more conducive for all round development of any growing
child. The feelings and emotions of maternal grandmother is
very thick. Further from impugned judgment it is evident that
Anirudh is studying D.A.V School, Pakur and he is well
acquainted with the environment of the school and with the
teachers, with the colleague students and he might have made
many friends in his school and neighbouring children of his
maternal grandmother house. Further, a social, moral and
educational requirements for all round development of the
child is very essential.
92. It needs to refer herein that seedling/plant which is
growing up and when it is displaced and allocated to a new
2025:JHHC:37806-DB
place and environment, there is possibility that the said plant
may fade and die and its growth would stop. Therefore, in the
same manner the growth of the adolescent child will also be
affected when at the age of 16 years he would have to transfer
to any new place which might harm his social, psychological,
physical and moral development. At his tender age of 16 years
if he is displaced from his usual place to unknown
environment there might be appalling effect on his character,
personality, emotion and promotion of his overall development
and his proper grooming. Further the appellant has not
alleged any ill-treatment or incapacity of the maternal
grandmother and maternal uncles to provide him a good
environment and background.
93. The law has been propounded by Hon'ble Apex Court,
as taken note of above, that the welfare of the child is
paramount consideration while handing over the custody of
the minor and herein the fact is admitted that plaintiff has left
his new born child just after the death of his first wife,
thereafter two years later he performed 2nd marriage with
other female and from his 2nd wife one son born and it is clear
that plaintiff and his 2nd wife only care about their own son
and their moto and intention is still not clear about the
custody of Anirudh after so long years. So, this Court is of the
considered view that when child Anirudh will attain majority,
he has every right to take proper decision which will be better
for his future prospectus.
2025:JHHC:37806-DB
94. Moreover, the natural father i.e. the plaintiff-appellant
has not taken any interest what to talk of genuine interest in
bringing up the said child since 2009 and has also not even a
glimpse of the said minor child and only in the year
2018/2019 he tried to meet with this child and further he
never paid even a single farthing for maintenance and welfare
of the minor child within a period of 11 years, in this view of
the matter and considering the welfare of the minor, the
appellant has forfeited his right of having the custody of the
said minor child.
95. The Hon'ble Apex Court in the case of Anjali Kapoor VS
Rajiv Baijal reported in 2009 0 AIR(SC) 2821 in para-21 held
that "Ordinarily, under the Guardian and Wards Act, the
natural guardians of the child have the right to the custody of
the child, but that right is not absolute and the Courts are
expected to paramount consideration to the welfare of the
minor child. The Child has remained with the
appellant/grandmother for a long time and is growing up well
in an atmosphere which is conducive to its growth. It may not
be proper at this stage for diverting the environment to which
the child is used to. Therefore, it is desirable to allow the
appellant to retain the custody of the child".
96. In the light of the aforesaid settled position of law, it
needs to refer herein that the minors welfare is of a paramount
consideration and it is only relevant factor and any right of the
father is subordinate to that.
2025:JHHC:37806-DB
97. Herein the placing of the said minor child in the custody
of the appellant may cause emotional and psychosocial break
down of the said minor child at such belated stage in the facts
and circumstances of this case, which may affect his future
prospect, which stands secured presently in his living with the
defendants-respondents. Therefore, it is not be in the interest
of the welfare of the said minor child to entrust his custody to
the natural guardian i.e. the appellant.
98. Herein the minor child is staying with his grandmother
rom maternal side for a long time and on facts it is found that
he is being brought up in an atmosphere which was conducive
to his growth. it will not be proper at this stage (child is of
about 16 years of age) to divert the environment to which the
child is used to and it is desirable that the maternal
grandmother retains the custody of the child.
99. Further taking reference of the settled position of law as
discussed and referred hereinabove it is considered view of
thus Court that the matters of custody of the minor child
should be decided not on consideration of the legal rights of
the parties but on the sole and pre-dominant criterion of what
would best serve the interest and welfare of the child.
100. This Court, after discussing the aforesaid factual aspect
along with the legal position and adverting to the
consideration made by the learned Family Judge in the
impugned judgment, has found therefrom that the issue of
giving custody of minor son has well been considered along
2025:JHHC:37806-DB
with the evidence as well as from the pleadings made in the
plaint and the written statement. Accordingly, the learned
Family Judge, on consideration of the evidence, has come to
the conclusion that the custody of minor son shall remain
with respondents/defendants. Accordingly, the suit filed by
the plaintiff/appellant was rejected.
101. Further, this Court, while appreciating the argument
advanced on behalf of the parties on the issue of perversity,
needs to refer herein the interpretation of the word "perverse"
as has been interpreted by the Hon'ble Apex Court which
means that there is no evidence or erroneous consideration of
the evidence. The Hon'ble Apex Court in Arulvelu and Anr.
vs. State [Represented by the Public Prosecutor] and Anr.,
(2009) 10 SCC 206 while elaborately discussing the word
perverse has held that it is, no doubt, true that if a finding of
fact is arrived at by ignoring or excluding relevant material or
by taking into consideration irrelevant material or if the
finding so outrageously defies logic as to suffer from the vice of
irrationality incurring the blame of being perverse, then, the
finding is rendered infirm in law. Relevant paragraphs, i.e.,
paras-24, 25, 26 and 27 of the said judgment reads as under:
"24. The expression "perverse" has been dealt with in a
number of cases. In Gaya Din v. Hanuman Prasad [(2001)
1 SCC 501] this Court observed that the expression
"perverse" means that the findings of the subordinate
authority are not supported by the evidence brought on
record or they are against the law or suffer from the vice of
procedural irregularity.
2025:JHHC:37806-DB
25. In Parry's (Calcutta) Employees' Union v. Parry & Co.
Ltd. [AIR 1966 Cal 31] the Court observed that "perverse
finding" means a finding which is not only against the
weight of evidence but is altogether against the evidence
itself. In Triveni Rubber & Plastics v. CCE [1994 Supp (3)
SCC 665 : AIR 1994 SC 1341] the Court observed that this
is not a case where it can be said that the findings of the
authorities are based on no evidence or that they are so
perverse that no reasonable person would have arrived at
those findings.
26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant
58] the Court observed that any order made in conscious
violation of pleading and law is a perverse order.
In Moffett v. Gough [(1878) 1 LR 1r 331] the Court
observed that a "perverse verdict" may probably be defined
as one that is not only against the weight of evidence but
is altogether against the evidence.
In Godfrey v. Godfrey [106 NW 814] the Court defined
"perverse" as turned the wrong way, not right; distorted
from the right; turned away or deviating from what is
right, proper, correct, etc.
27. The expression "perverse" has been defined by various
dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current
English, 6th Edn.
"Perverse.--Showing deliberate determination to behave in
a way that most people think is wrong, unacceptable or
unreasonable."
2. Longman Dictionary of Contemporary English,
International Edn.
Perverse.--Deliberately departing from what is normal and
reasonable.
3. The New Oxford Dictionary of English, 1998 Edn.
Perverse.--Law (of a verdict) against the weight of evidence
or the direction of the judge on a point of law.
4. The New Lexicon Webster's Dictionary of the English
Language (Deluxe Encyclopedic Edn.)
Perverse.--Purposely deviating from accepted or expected
behavior or opinion; wicked or wayward; stubborn; cross
or petulant.
2025:JHHC:37806-DB
5. Stroud's Judicial Dictionary of Words & Phrases, 4th
Edn.
"Perverse.--A perverse verdict may probably be defined as
one that is not only against the weight of evidence but is
altogether against the evidence."
102. This Court, on consideration of the finding arrived at by
the learned Principal Judge, Family Court and based upon the
aforesaid discussion and judicial pronouncements, is of the
view that the judgment passed by the learned Family Judge is
not coming under the fold of the perversity, since, the
conscious consideration has been made of the evidences, as
would be evident from the impugned judgment.
103. This Court, therefore, is of the view that the judgment
and decree dated 05.01.2023 and 15.01.2023 respectively,
passed by learned Principal Judge, Family Court, Pakur in
Original Guardianship Suit No. 86 of 2019 needs no
interference.
104. Accordingly, the instant appeal stands dismissed.
105. Pending interlocutory application(s), if any, also stands
disposed of.
(Sujit Narayan Prasad, J.)
I agree.
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Date : 16/12/2025
Birendra / A.F.R.
Uploaded on 17.12.2025
