Jharkhand High Court

Heeralal Thakur vs Soni Devi on 2 May, 2025

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad, Rajesh Kumar

                                                  2025:JHHC:13416-DB




           IN THE HIGH COURT OF JHARKHAND AT RANCHI

                     First Appeal No.119 of 2023
                                    -----
Heeralal Thakur, Aged about 29 years, son of late Mahanand Thakur,
Resident of Mahuwatand, PO-Ghatiyari, PS-Sunder Pahari, District-
Godda                                           ....... ... Appellant
                                Versus
1. Soni Devi, wife of Heeralal Thakur, Daughter of Rameshwar Thakur
2. Amrita Kumari, aged about 9 years, D/o Heeralal Thakur,
   Both resident of village-Baniyara, PO-Mahadev Garh, PS-Hansdiha,
   District-Dumka
                                               ... ... Respondents
                                 -------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
           HON'BLE MR. JUSTICE RAJESH KUMAR
                                 -------
For the Appellant    : Mr. Manoj Kumar Sah, Advocate
For the Respondent : ----------
                                     ------
                      nd
Order No.06/Dated:2 May, 2025
Per Sujit Narayan Prasad, J.

1. The instant appeal under section 19(1) of the Family Courts Act,

1984 is directed against the judgment dated 28.03.2019 and the decree

dated 12.04.2023 passed in Original Suit No.193 of 2019 by the learned

Principal Judge, Family Court, Godda (in short, learned Family Judge)

whereby and whereunder the petition filed by the appellant-husband under

section 6 of the Hindu Minority and Guardianship Act for custody of his

daughter has been dismissed.

2. The brief facts of the case as per the pleadings made in the plaint

having been recorded by the learned Family Judge, needs to be referred

herein as:

(i) That the petitioner's marriage had been solemnized with the O.P.

as per Hindu customary rites and customs on 25.06.2011. Out

of their wedlock, two children have been born who are named

Dhiraj Kumar and Amrita Kumari. The respondent no.1 has an 2025:JHHC:13416-DB

illicit relation with Vikash Thakur for that reason the relation

between them got strained and quarrel started between them.

(ii) Despite objections raised by the petitioner, the behaviour of

respondent no.1 did not change and she threatened to kill the

appellant-husband. On 17.04.2016 the petitioner caught the

respondent no.1 making physical relationship with said Vikash

Thakur. On this matter a was held on 02.05.2016, in which

before everyone, the respondent no.1 admitted her illicit

relationship.

(iii) After few days since that Panchayati, petitioner's mother went

to Bengal for treatment; and as there was no any male member

at home, the respondent no.1 taking advantage of the absence

went back to her maike on 08.11.2016 taking/stealing all house

hold articles. Thereafter, the respondent no.1 refused to live with

the petitioner.

(iv) On 02.08.2017 Vikash Thakur admitted and gave undertaking

in the Panchayati that in future, he will not commit/remain in

any illicit relation with petitioner's wife, i.e, the respondent no.1.

That Panchnama bears signature of Vikash Thakur.

(v) The appellant-husband had filed a case against the respondent

no.1 in the Family Court, Godda for dissolution of his marriage

vide O.S. Case no. 144/2016 in which case the decree has been

passed by the Court in favour of this petitioner. The respondent

no.1 and her daughter Amrita Kumari has filed a maintenance

case against the appellant-husband vide OMC Case No.

224/2016 in which case order has been passed by the Court

2025:JHHC:13416-DB

against the respondent no.1, but the Court has ordered that this

appellant-husband will pay Rs. 1,500/- monthly allowance to his

minor daughter-Amrita Kumari.

(vi) The appellant-husband has got second marriage with Vikash

Thakur and she is living at her sasural and his minor daughter

Amrita Kumari is living at Baniyara in very difficult situation.

There is no one to take care of her. The date of birth of the

daughter is 03.04.2014 and she is aged about 5 years 9 months

old and she has been deprived of her education. As such, the

custody of the minor daughter-Amrita Kumari's is seeking by

the appellant-husband so that he can arrange for her better

upbringing and education.

3. After issuance of proper notice through 'Nazarat' and registered

post, the respondent no.1 appeared and filed her written statement before

the court concerned by taking the following grounds:

4. The fact of marriage between the appellant-husband and the

respondent no.1 is admitted. But it is stated that at present her son, namely,

Dhiraj Kumar is forcibly living with the appellant-husband and above the

daughter, namely, Amrita Kumari has been living with the respondent no.1

since birth. She denied the allegation of illicit relationship with said Vikash

Thakur, as all the allegation is false and concocted.

5. It is alleged by the respondent no.1 that the appellant-husband

wanted to have his second marriage and, as such, he has tried to assassinate

her character which amounts to cruelty.

2025:JHHC:13416-DB

6. It is stated that the appellant-husband and said Vikash Thakur are

own cousin brother and under conspiracy both persons have filed such type

of false cases to harass her.

7. It is stated that no any Panchayat had been taken place on

02.05.2016 on the matter of alleged illicit relationship. It is stated that the

respondent no.1 has no income of her own and, as such, she has not filed

any appeal against the judgment and decree passed by the learned Family

Court vide judgment dated 14.03.2019 passed in Original Suit No. 144 of

2016 for divorce in the Hon'ble High Court, Ranchi. But she always

wished to live with the appellant-husband as his married wife. The

statement made in para-7 of the petition is admitted. It is stated that the

appellant-husband has not cared her or her daughter, namely, Amrita

Kumar and she has not paid any penny for their survival. It is admitted

that she lived with her said daughter, namely, Amrita Kumari since her

birth. She also undertakes that she would never solemnize her second

marriage in future but it is alleged that the appellant-husband has

contracted his second marriage with Rita Kumari.

8. On the aforesaid ground it has been pleaded that the custody of

minor daughter may not be handed over to the appellant-husband as per

the law laid down by the Hon'ble Supreme Court and, as such, the mother

should be considered as the natural guardian of the minor girl with whom

at present she is living.

9. The learned Principal Judge, Family Court, Godda (in short,

learned Family Judge) has taken in to consideration all the aforesaid

factual aspect and vide judgment dated 28.03.2019 and the decree dated

12.04.2023 passed in Original Suit No.193 of 2019 the petition filed by

2025:JHHC:13416-DB

the appellant-husband under section 6 of the Hindu Minority and

Guardianship Act for custody of his daughter has been dismissed.

10. Aggrieved with the judgment dated 28.03.2019 and the decree

dated 12.04.2023 passed in Original Suit No.193 of 2019 the present

appeal has been preferred by the appellant/husband.

11. It needs to refer herein that vide order dated 06.03.2024 of a co-

ordinate Bench of this Court the notices were issued to the respondent no.1

as well as the minor daughter, namely, Amrita Kumari which was reported

to be duly served. But she did not choose to appear in the Court to contest

the case.

Analysis:

12. This Court has heard the learned counsel appearing for the

appellant-husband, had gone through the Trial Court Records, as also the

impugned judgment and decree, the testimonies of the witnesses and the

documents exhibited therein.

13. After going through the written statement filed in the

proceeding before the learned Family Court, it appears that the respondent

no.1 was having difficulty to file an appeal against the judgment dated

14.03.2019 passed in Original Suit No. 144 of 2016 for divorce by the

learned Family Judge due to paucity of money, as such, it would be in the

interest of justice that on the basis of the arguments made on behalf of the

appellant-husband and the documents available on record, particularly, the

written statement filed on behalf of the respondent no.1 before the learned

Family Judge, we have to proceed further to decide the matter as the case

is of the year 2023.

2025:JHHC:13416-DB

14. This Court in order to assess the aforesaid fact has gone through

the scanned copy of the Trial Court Records which has been called for by

a co-ordinate Bench of this Court vide order dated 06.03.2024.

15. During trial, the appellant-husband has examined three witnesses

in support of his case. He himself has examined as PW3 whereas the

respondent no.1 did not appear to depose in the Court in support of her

case as pleaded in her written statement.

16. As PW3 the appellant-husband has stated on oath that his

marriage was solemnized with the respondent no.1 as per Hindu rites and

customs on 25.06.2011 and out of their wedlock one son, namely Dhiraj

Thakur and one daughter, namely, Amrita Kumari were born. He has

alleged that the respondent no.1 has developed illicit relationship with

Vikash Thakur whereupon a Panchayati was convened on 2.5.2016.

Thereafter, the respondent no.1 left her matrimonial home with her brother

on 08.11.2016 on her own wishes. He has deposed that their marriage has

been dissolved by the order passed in Matrimonial (Divorce) Suit No.144

of 2016 passed by the learned Principal Judge, Family Court.

17. He has admitted that the respondent no.1 has filed a maintenance

case before the learned Family Judge, Godda being Maintenance Case

No.224 of 2016 in which the learned Court has denied to grant

maintenance to the respondent no.1 whereas an amount of Rs.1500/- per

month has been directed to pay by the appellant-husband to his daughter,

namely, Amrita Kumari. He further deposed that the daughter was living

with her mother, i.e. the respondent no.1. He further deposed that since the

respondent no.1 has solemnized her second marriage as such the minor

2025:JHHC:13416-DB

daughter is living in her nanihal who is deprived of getting proper

education as there is no one to look after her.

18. On the Court's question, this witness has stated that he has been

directed by the learned Court to pay an amount of Rs.1500/- per month to

his daughter but he is not paying the said amount since the year 2020. He

further stated that the respondent no.1 is looking after her minor daughter,

namely, Amrita Kumari. He further stated that Amrita Kumari is living in

her nanihal and she is deprived of getting education,

19. PW1 and PW2 are the formal witness who has supported the case

of the appellant-husband.

20. On the Court's question, PW2 has stated that the appellant-

husband has solemnized his second marriage and out of the said wedlock,

no child was born. He further stated that the appellant-husband is doing

the job of a barbour.

21. On the basis of the testimonies and the relevant documents which

have been produced by the appellant-husband before the learned Family

Judge, the learned trial Court has dismissed the petition/suit of the

appellant for custody of the minor daughter which is impugned before this

Court.

22. The learned Family Judge has recorded the following findings

while dismissing the suit/petition for custody of the minor daughter, for

ready reference the relevant paragraphs of the impugned judgment is being

quoted hereinbelow:

13. Now coming to the evidences produced by petitioner side. The petitioner has produced only three witnesses in support of his case, first witness (PW1) is Sanjhla Tudu, second witness (PW2) is Ramesh Thakur, relative of petitioner and third witness (PW3) is petitioner himself.

2025:JHHC:13416-DB

I have examined the testimonies of these witnesses vis-a-vis the grounds alleged by petitioner for grant of custody of child to him.

As regards first ground of second marriage of OP-Soni Devi with Vikash Thakur and abandoning of child at her maike, a look to the testimonies of the witnesses establish that After getting divorce from OP vide decree passed in OS No. 144 of 2016 by Family Court Godda, the petitioner has contracted second marriage with another woman and he is living with his second wife, his witness has admitted it [PW2 in para 4] which has also been claimed by OP vide para 9 of WS that he has married with one Rita Kumari. It is found surprising that petitioner as PW3 has tried to conceal this fact from the court. [PW3 in para 10].

But so far the claim of petitioner regarding second marriage of OP is concerned, in the light of her strong rebuttal of this fact vide her WS, the petitioner's witnesses have just stated that she has married with Vikash Thakur however, they have not been able to prove her marriage with Vikash Thakur with some more credible and tangible evidence. The petitioner on court question vide para 8 has alleged that OP Soni Devi has married with Vikash Thkaur and she is now living with him and daughter Amrita is living at her nanihal but in same testimony at para 7 the petitioner states that the maintenance of minor daughter Amrita Kumari is looked after/manged by Soni Devi. Both these statements appear contradicting each other. Having gone through the above facts and circumstances, this court is led to opinion that so far petitioner is concerned he has contracted his second marriage and he is now living with his second wife but so far OP is concerned, the petitioner has failed to prove to the satisfaction of this court that she has married to some Vikash Thakur. On the other hand OP appear giving undertaking vide her WS that she will never contract second marriage with anyone in future [Para 9 of WS].

14. Next, As regards the allegation of neglect of child is concerned, of course the witnesses of petitioner have stated that Minor daughter Amrita lives at her Nanihal and there is none to look after her and she is being deprived of her education etc. and she is facing much hardships there.

But when this court proceed to examine the very cardinal Question whether the interest and welfare of child Amrita (daughter aged about 6 years old) would be better secured if her custody given to petitioner- father, a look to the admitted facts and circumstances on the record suggest the answer in Negative for following reasons:- It is admitted that

2025:JHHC:13416-DB

vide order dated 09.10.2018 passed in OMC No. 224 of 2016 the Court has ordered to this petitioner (who was OP in said OMC) to maintain the child Amrita and for that to pay a monthly allowance of Rs.1,500 per month [Para 7 of petition]. However, a look to the Written statement of OP suggest that the petitioner is not complying with said order and has not paid the maintenance allowance to said child since September, 2019. The petitioner himself as PW3 in para 6 of court question has admitted that he is not giving maintenance allowance to his daughter Amrita since year 2020 whereas he has been ordered to provide her maintenance per month @ Rs. 1500/-.

The maintenance allowance is required for the child for meeting her survival needs, the petitioner's very conduct of stopping and ignoring her maintenance allowance for last so many years goes to indicate that in no case he is better and responsible parent than OP Soni Devi in looking after the interest of child. As he himself has stated that Amrita is being maintained by OP. Had petitioner been genuinely concerned about welfare of his child he must not have deprived her of even this small maintenance allowance. On the other hand, the OP has brought up the child since her birth and looking after her with her natural love and care.

15. It has been laid down by Hon'ble the Supreme Court of India in "Shyamrao Maroli Korwale vs Deepak Kishnarao Tekam" reported in (2010) 10 SCC 314, "In a matter of custody of a minor child, the paramount consideration is the "Welfare of the minor" and not the Right of parents or relatives under a statue which is in force."

On same line, it is established law that "the matter of custody is to be decided consistently with the wishes of the minor and the same is a relevant factor to be taken into consideration. But such wish of minor can only be relevant factor if such minor concerned is capable of forming an independent and intelligent opinion. It can only be possible if the minor concerned is capable of particular age forming an independent and intelligent opinion. It is then only possible to ascertain the wish of child consistent with welfare of child. Welfare of child is paramount consideration."

16. However, coming to the fact and evidences of this case it is found that minor child has not been produced before the Court and of course, for obvious reasons she cannot be. Moreover, given her age of just about 6 years, her wish or her statement would be hardly material in deciding what is in her interest and welfare because she is not in capable age rather too young to see what is in her best interest.

2025:JHHC:13416-DB

Therefore, this court needed some more evidence to decide what is in the best interest of the child particularly when she being a very young aged girl child who has been living with her mother since her birth and even when her mother left her sasural she accompanied her and she has been living with her; her relation with her mother has grown more natural, more comfortable and more close than with her father as since last several years, say since before year 2019 she has not been living with her father rather her mother.

So far allegation of petitioner that OP No.1 is not taking proper care of hers is concerned, the petitioner has not produced any credible evidence to show that really OP is neglecting her Child and not giving her proper education or doing something detrimental to her welfare or future life. There is no any evidence on this point except statements by petitioner and his witnesses given in affidavit in stereotyped way with identical words.

17. Admittedly, the petitioner being father of minor child Amrita Kumari is natural guardian of said child and as per section 6 of Hindu Minority and Guardianship Act, 1956 he enjoys preferred status as natural guardian vis-a-vis mother of the child/OP, but that by itself does not entitle him as of right to be entitled for the custody of child.

It has been laid down that recognition of father's absolute right to the custody of the child would render the child an inanimate property or chattel, which could be possessed and used as the owner pleases.

The statute has also recognized above proposition of law vide Section 13 of The Hindu Minority and Guardianship Act, 1956 as follows:

Section 13 Welfare of minor to be paramount consideration-

(1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor child shall be the paramount consideration.

(2) No person shall be entitled to the guardianship by virtue of the provisions of this act or any law relating to guardianship in marriage among Hindus, if the court is of the opinion that his or her guardianship will not be for the welfare of the minor.

18. In conclusion, what is found that the plaintiff could not prove his case sufficiently as he has neither produced any evidence showing that child is not being treated properly by her mother nor he could show any evidence that since when the child is living separate from him, he has

2025:JHHC:13416-DB

ever provided and tried to provide her with any of her basic necessities or for her education. There is nothing on record that till now the petitioner has contributed anything to further the education and well being of the child.

19. It is laid down by Hon'ble the Supreme Court of India in Rosy Jacob vs Jacob Chakra Makkal reported in AIR 1973 SC 2090that "the controlling consideration governing the custody of children is the welfare of the children" and not the rights of the parties."

It is also settled proposition of law that 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.

20. Having considered all the evidences on the record which cumulatively show that minor child, in this very young age would not be comfortable in the guardianship of plaintiff/father in absence of her mother's company and as welfare of minor is supreme consideration where very factor of financial consideration of father better than mother would be of no consequence, this court is led to irresistible conclusion that plaintiff's prayer for grant of guardianship of minor child aged about 6 years in his favour without and against her mother/Defendant does not deserve to be allowed. The total well being of children could not be ensured if her mother is not around.

21. Although the prayer of plaintiff/father for granting guardianship of minor child to plaintiff is not found fit to be allowed, however, considering the fact that plaintiff being father, is also natural guardian of minor daughter (OP No.2), therefore, in all fairness to the issue adjudicated herein, he is allowed and required to see her periodically so that he can take care of her education welfare and other needs. It is the plaintiff's incumbent liability as father to bear the cost of education and maintenance expenses of child, hence, he is required to make monthly payment as per order clearing all dues in name of child- Amrita Kumari through her mother so that child may get education in proper way and all her expenses for total well being and development be taken care of.

22. Having given scrupulous consideration to entire facts and circumstances as above discussed in details It is therefore,

ORDERED

2025:JHHC:13416-DB

That the suit be and same is hereby DISMISSED without Cost.

23. Let a decree be prepared accordingly."

23. It is evident from the impugned judgment of the learned family

Court the relevant paragraph of the same has been referred hereinabove

that the learned Family Court has taken care of the welfare a minor child,

as the paramount consideration in the case of custody.

24. There is no iota of doubt the welfare of minor child should be

paramount consideration in the cases of determination of custody of the

minor. Further, the matter of custody is to be decided consistently with the

wishes of the minor and the same is a relevant factor to be taken into

consideration. However, wish of minor can only be relevant factor if such

minor concerned is capable of forming an independent and intelligent

opinion. It can only be possible if the minor concerned is capable of

particular age forming an independent and intelligent opinion. It is then

only possible to ascertain the wish of child consistent with welfare of child.

25. Black's Law Dictionary also defines "custody" as-- "Custody --

the care and control of a thing or person. The keeping, guarding, care,

watch, inspection, preservation or security of a thing, carrying with it the

idea of the thing being within the immediate personal care and control of

the person to whose custody it is subjected. Immediate charge and control,

and not the final, absolute control of ownership, implying responsibility

for the protection and preservation of the thing in custody."

26. The Hon'ble Apex Court in the case of Mohan Kumar Rayana

v. Komal Mohan Rayana, (2010) 5 SCC 657 while taking in to

consideration the demeanor of the minor girl child has observed that in

these matters the interest of the minor is of paramount importance to the

2025:JHHC:13416-DB

Court which stands in loco parentis to the minor. Of course, the wishes of

the minor are to be given due weightage. For ready reference the relevant

paragraph of the aforesaid order is being quotes as under:

25. Having the interest of the minor in mind, we decided to meet her separately in order to make an assessment of her behavioural pattern towards both the petitioner as well as the respondent. Much against the submissions which have been made during the course of hearing of the matter, Anisha appeared to have no inhibitions in meeting the petitioner father with whom she appeared to have an excellent understanding.

There was no evidence of Anisha being hostile to her father when they met each other in our presence. From the various questions which we put to Anisha, who, in our view, is an extremely intelligent and precocious child, she wanted to enjoy the love and affection both of her father as well as her mother and even in our presence expressed the desire that what she wanted most was that they should come together again. However, Anisha seems to prefer her mother's company as the bonding between them is greater than the bonding with her father. Anisha is a happy child, the way she is now and having regard to her age and the fact that she is a girl child, we are of the view that she requires her mother's company more at this stage of her life.

26. There is no doubt that the petitioner is very fond of Anisha and is very concerned about her welfare and future, but in view of his business commitments it would not be right or even practicable to disturb the status quo prevailing with regard to Anisha's custody. The conditions laid down by the High Court regarding visitation rights to the petitioner are, in our view, sufficient for Anisha to experience the love and affection both of her father and mother. There is no reason why the petitioner, who will have access to Anisha on holidays and weekends, cannot look after her welfare without having continuous custody of her person.

27. As has repeatedly been said, in these matters the interest of the minor is of paramount importance to the Court which stands in loco parentis to the minor. Of course, the wishes of the minor are to be given due weightage, and, in the instant case, the same has been done. We, therefore, see no reason to interfere with the order passed by the learned Principal Judge, Family Court, Mumbai at Bandra, as affirmed by the Bombay High Court.

2025:JHHC:13416-DB

27. 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 daughter has well been considered

along with the evidence as well as from the pleadings made in the plaint

and the written statement. The learned Family Judge on consideration of

the evidence, both ocular and documentary, has come to conclusion that

the minor daughter would not be comfortable in the guardianship of the

appellant herein in absence of her mother's company.

28. The aforesaid reason has led the learned Family Judge to dismiss

the suit.