Jharkhand High Court
Jyoti vs Sri Raja Nand Choudhary on 21 November, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
2025:JHHC:34929-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No.50 of 2023
-------
1. Jyoti, [Aged about 35 years] Wife of Raja Nand Choudhary, Resident
of: -C/o Subodh Chandra Jha, Bajrang Colony, Pokhna Tilha, Ward
No.18, Near: Hindi Vidyapith, Post Office: Deoghar, Police Station:
Deoghar, Sub Division: -Deoghar, District-Deoghar
... ... Appellant/Opposite Party
Versus
Sri Raja Nand Choudhary, Son of: -Bishnu Deo Choudhary, Resident
of: -House No.9, Williams Town, Indu Bhushan Sarkar Road,
Deoghar, Post Office: Deoghar, Police Station: Deoghar, Sub Division:
- Deoghar, District-Deoghar
... ... Respondent/Petitioner
With
F.A. No.06 of 2023
-------
2. Rajanand Choudhary, aged about 42 years, son of Bishnudeo
Choudhary, resident of Indu Bhushan Sarkar Road, House No.9,
Williams Town, P.O. & P.S. Deoghar, District Deoghar, State
Jharkhand
... ... Petitioner/Appellant
Versus
Jyoti @ Golden, aged about 31 years, wife of Rajanand Choudhary and
daughter of Subodh Chandra Jha, A-6 Manager, Jharkhand Co-
operative Bank, resident of Pandit Binoda Nand Jha Path, presently
resident of Pokhna Tilha, Bajrang Colony, Deoghar, P.O. & P.S.
Deoghar, subdivision and District Deoghar, State Jharkhand
... ... Opposite Party/Respondent
-------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
-------
For the Appellant : Mr. Rajesh Lala, Advocate
Mr. Kumar Nishant, Advocate
(In F.A. No.50/2023)
: Mrs. Niharika Mazumdar, Advocate
(In F.A. No.06/2023)
For the Respondent : Mr. Rajesh Lala, Advocate
Mr. Kumar Nishant, Advocate
(In F.A. No.06/2023)
Mrs. Niharika Mazumdar, Advocate
(In F.A. No.50/2023)
----------------------------
1
2025:JHHC:34929-DB
CAV on 30/10/2025 Pronounced on 21/11/2025
Per Sujit Narayan Prasad, J.
1. At the outset, it needs to refer herein that vide order dated 20.03.2025
passed in F.A. No. 06 of 2023, the appeals being F.A. No.50 of 2023 and
F.A. No.06 of 2023, have been directed to be listed together and as such,
are being taken up together, for ready reference, the order dated
20.03.2025 is being quoted herein which reads as under:
"11/20.03.2025
Since it has been submitted that in the appeal which is
with respect to custody of the child, both the parties have
been directed to appear before us on 16.04.2025, let this
matter be listed along with F.A. No. 50 of 2023 on
16.04.2025."
2. The appeal being F.A. No.50 of 2023 preferred by the appellant-wife
against the judgment/decree by which "shared parenting" has been
ordered by the Family Court, Deoghar, on the petition filed by the
respondent husband under Section 6 of the Hindu Minority and
Guardianship Act.
3. The appeal being F.A. No.06 of 2023 has been filed by the appellant-
husband against the denial of the prayer for dissolution of marriage on the
ground of 'cruelty'.
4. It appears from the order dated 12th June, 2025 passed in F.A.
No.50/2023 by this Court that the both the parties have submitted that
since reunion is not possible and as such, the matter may be heard on
merits, for ready reference, the order dated 12.06.2025 is being quoted as
under:
"Order No.09/Dated: 12th June, 2025
2025:JHHC:34929-DB
1. The case has been taken up today. Both the wife and
husband are present in the Court pursuant to the order dated
08.05.2025.
2. We, after, interaction both of them has found that there is
no solution with respect to resolution of matrimonial dispute
and as such, both the parties have submitted that the mater
may be heard on merits.
3. Accordingly, list this case on 07th July, 2025 for hearing on
merits."
5. Considering the aforesaid, this Court is now going to appreciate the
aforesaid appeals on merit.
6. This Court, taking into consideration the ground which has been taken
for dissolution of marriage on merit, i.e., the ground of cruelty, hence, is
of the view that appeal being F.A. No.06 of 2023 is to be considered first.
Prayer
7. The instant appeal being F.A. No.06 of 2023 has been filed under
Section 19(1) of the Family Courts Act, challenging the legality and
propriety of impugned judgment passed on 26.09.2022 and decree signed
on 11.10.2022 by the learned Principal Judge, Family Court, Deoghar
whereby and whereunder the Original Suit No. 101 of 2019 filed by the
plaintiff-appellant-husband under Section 13(1)(i-a)of the Hindu Marriage
Act, 1955 for a decree of divorce has been dismissed.
Factual Matrix
8. The brief facts of the case, as per the plaint of plaintiff (appellant-
husband herein), which required to be enumerated, needs to be referred as
under:
2025:JHHC:34929-DB
9. It is the case of the plaintiff/petitioner (husband) that the marriage was
solemnized on 26.06.2011 according to the Hindu Religion, Rites and
Customs including the 'Saptpadi'. The marriage of parties was registered
in the office of Marriage Sub Registrar, Deoghar also.
10. In course of time, a son, namely, Amog Raj @ Moon and a baby
namely, Anika Choudhary was born from the wedlock of the parties on
23.08.2012 and 15.09.2017, respectively.
11. The appellant has purchased two flats in name of the opposite
party/respondent at Rajnager Extension, U.P. and Mysore, Karnataka also
and was always ready to keep and maintain his wife.
12. It has been stated that the opposite party/wife (respondent herein) was
always abusing the appellant in very slang language and she used to
assault the appellant with utensils available in the house. The old mother
and father of the appellant were also being humiliated and abused by the
opposite party/respondent-wife in very filthy language. The opposite
party/respondent has a tendency to spend much time in her parental home
(Naihar).
13. Further, the appellant had filed an Original Suit No.114/2018 under
Section 9 of Hindu Marriage, which was disposed of on 16.02.2019 on the
basis of compromise. Thereafter, the opposite party/respondent went to
the house of appellant but the attitude of the opposite party/respondent
was rude at that time and she started to abuse and assault the appellant and
his old mother and father also. In view of the said circumstances, it was
quite impossible for the appellant to lead a peaceful conjugal life with the
2025:JHHC:34929-DB
opposite party/respondent and hence, necessity arose for filing suit for
divorce.
14. The cause of action for filing suit for divorce arose since very
beginning of the matrimonial life and on 20.03.2019 and 21.03.2019.
Accordingly, suit for dissolution of marriage was filed before the Family
Court, Deoghar.
15. The appellant has prayed for the following reliefs :-
(i) For getting a decree of dissolution of marriage in between
parties (applicant and respondent) by passing decree of divorce
dissolving the marriage of the appellant.
(ii) For any other relief and reliefs in favour of the appellant as the
Court deems fit and proper under law.
16. After receiving the summon, the respondent/opposite party-wife has
appeared and contested the suit by filing a written statement on
23.01.2020 stating therein that suit is not maintainable on the law and fact
and it is fit to be rejected and the opposite party/respondent had never
subjected the plaintiff/husband to cruelty either physically or mentally,
rather, it was the husband himself who was subjecting the
respondent/wife to cruelty, both physically and mentally as well as
economically also.
17. It has further been stated in the written statement that the opposite
party/respondent-wife has already filed a Criminal case against the
appellant, vide Mahila P.S. Case No. 08/2019 and the instant suit has
been filed by the plaintiff/husband without any basis for saving his skin
2025:JHHC:34929-DB
from the said case of respondent-wife. The statement made regarding the
purchasing of flats in para-6 of the petition are factually incorrect.
Actually, only an agreement has been done in the name of the respondent
on the basis of loan as payment mode and the said loan has been also
taken in the name of respondent. But up till now, six instalments are due
for payment and the bank is regularly asking for the said payment from
respondent. It has further been stated that the respondent wife never
humiliated the father and mother of appellant and the averments made by
the appellant in this regard are totally false.
18. It has been stated in written statement that the Original Suit No.
114/2018 under Section 9 of the Hindu Marriage Act was disposed of on
16.12.2019 and the respondent/wife went to her matrimonial home along
with the appellant. But just after a few days of 'Bidagri' on the occasion
of Holi festival, on 29.03.2019, the plaintiff/husband assaulted the
respondent-wife and forced her to get out from her matrimonial home
along with her both children.
19.Thereafter, the respondent came back to her father's house along with her
both children, as there was no option before her. It has been stated that
the respondent-wife always tried to make the entire family members
happy and she had never treated the plaintiff/husband or his father and
mother in a rude manner nor subjected them to cruelty and all the
allegations made by the appellant in this regard are false and concocted
and further, she had never assaulted the appellant with any utensil nor she
had ever raised any such issue which can be treated as a cause of action
2025:JHHC:34929-DB
for filing a suit of divorce. On the aforesaid grounds, the respondent-wife
has prayed to dismiss the suit of appellant-husband.
20. On the basis of pleadings made on behalf of the parties, the learned
Family Judge has framed the following issues, which are as follows:
(i) Whether the suit as framed is maintainable in its present form?
(ii) Whether petitioner has valid cause of action?
(iii) Whether the respondent is living in adultery with respondent no.2?
(iv) Whether the respondent has committed any act of cruelty against the
petitioner?
(v) Whether the petitioner is entitled for decree of divorce on the grounds of
cruelty?
(vi) Any other relief or reliefs?
21. It needs to refer herein that so far the issue no. (3) is concerned, i.e.,
whether the respondent is living in adultery with respondent no.2, the
learned Family Judge had specifically clarified in his order that the said
issue was framed on 30.11.2021 by the predecessor of the Court and after
going through the case record, he found that the suit has been filed by the
petitioner under Section 13(1)(i-a) only and there is no respondent no.2 in
the cause title of the petition and further, there is no pleading of the
petitioner about the adultery of the respondent. The learned Family Court
has further observed that the issue of adultery has wrongly been framed in
this suit and accordingly, this issue has been striked out.
22. In order to prove and substantiate the case, the appellant/plaintiff
(husband) has produced and examined two witnesses in support of his
case, i.e., P.W.1-Sulochan Devi and P.W.2-Raja Nand Choudhary.
2025:JHHC:34929-DB
23. Apart from the above testimony, the petitioner has filed some
photocopies of the documents and a pen drive which are available on
record.
24. The respondent-wife has also been examined as D.W.1, Jyoti.
25. Apart from the above testimony, the respondent-wife has filed some
documents also which have been marked as Exhibits, as follows:-
(i) Ext.A-Certified copy of order sheet dated 14.05.2018 to 06.02.2019 in
(ii) Ext. B-Certified copy of the petition of Original Suit No.114/2018 under
Section 9 of the Hindu Marriage Act dated 14.05.2018.
(iii) Ext. C-Certified copy of the written-statement of the opposite
party/respondent-wife in Original Suit No.114/2018.
(iv) Ext. D-Certified copy of deposition of Raja Nand Choudhary in Original
Suit No.114/2018.
(v) Ext. E-Certified copy of show-cause of Raja Nand Choudhary in
connection with Cr. Misc. Case No.340/21.
(vi) Ext. F to F/3-Money receipts of Kalyani Clinic in the name of Jyoti
Choudhary.
(vii) Ext. G-Prescription of Medical Treatment of Jyoti Choudhary issued from
Kalyany Clinic, Deoghar.
(viii) Ext. H-Ultrasound report of Jyoti Choudhary.
(ix) Ext. I to I/1-Report of Mangal Diagnostic Centre.
(x) Ext.J- Report of Haematology.
(xi) Ext. K-Medical Prescription of Jyoti Choudhary.
(xii) Ext. L-Report of Blood of Jyoti Choudhary.
(xiii) Ext. M to M/1-Receipts of Maya Diagnostic
(xiv) Ext. N-Antenatal card of Jyoti Choudhary.
2025:JHHC:34929-DB
(xv) Ext. O-Certified copy of the order dated 21.05.2020 passed by this Court
in A.B.A. No.157 of 2020.
26. After perusal of the evidence led by the parties, the learned Family
Judge, vide order dated 26.09.2022 has dismissed the suit (decree signed
on 11.10.2022) against which, the present appeal being F.A. No.06 of
2023 has been preferred by the appellant-husband.
Submission of the learned counsel for the appellant(husband)
27. It has been contended on behalf of the appellant-husband that the
factual aspect which was available before the learned Family Judge
supported by the evidences has not properly been considered and as such,
the judgment impugned is perverse, hence, not sustainable in the eyes of
law.
28. It has been submitted by the learned counsel for the appellant-
husband that the behaviour of the respondent-wife was very rude and cruel
in her matrimonial home with the appellant-husband and his family
members from the very beginning and the respondent-wife has subjected
the appellant-husband and his family members with cruelty.
29.The element of cruelty has been found to be there if the evidences
adduced on behalf of the appellant-husband will be taken into
consideration but without properly appreciating the same, the learned
Family Judge has come to the finding by holding that no element of
cruelty is there and, as such, the impugned judgment and decree suffer
from an error.
2025:JHHC:34929-DB
30. It has been contended that the learned Family Judge has failed to
consider that the respondent/wife always quarreled with the
appellant/husband and never gave comfort of marriage to the appellant.
31. Learned counsel for the appellant-husband, based upon the aforesaid
grounds, has submitted that the judgment impugned suffers from
perversity, as such, not sustainable in the eyes of law.
Submission of the learned counsel for the respondent-wife
32. Per contra, learned counsel appearing for the respondent-wife, while
defending the impugned judgment, has submitted that there is no error in
the impugned judgement. The learned Family Judge has considered all
aspects of the matter in right perspective and hence, decreed the suit in
favour of the respondent-wife.
33. It has been contended that the respondent wife has never subjected the
appellant-husband or his family members with cruelty nor she had done
any such act which can be treated as a cause of action for filing a suit for
divorce. It was the appellant-husband himself who was assaulting and
abusing the respondent-wife and torturing her both mentally and
physically, for which, she has filed a criminal case against the appellant-
husband.
34. It has also been contended that the appellant-husband has miserably
failed in proving any act of cruelty on the part of the respondent-wife.
35. Learned counsel, based upon the aforesaid grounds, has submitted that
the impugned judgment cannot be said to suffer from an error.
2025:JHHC:34929-DB
Analysis:
36. We have heard the learned counsel for the parties, gone through the
Trial Court records, the impugned judgment, the testimonies of the
witnesses and the documents exhibited therein.
37. The admitted fact herein is that that the marriage was solemnized on
26.06.2011 according to the Hindu Religion, Rites and Customs including
the 'Saptpadi'. The marriage of parties was registered in the office of
Marriage Sub Registrar, Deoghar also.
38. In course of time, a son, namely, Amog Raj @ Moon and a baby
namely, Anika Choudhary, were born from the wedlock of the parties on
23.08.2012 and 15.09.2017, respectively.
39. The appellant-husband has purchased two flats in name of the
opposite party/respondent-wife at Rajnagar Extension, U.P. and Mysore,
Karnataka also and was always ready to keep and maintain his wife. But
the opposite party was always abusing the appellant in very slang
language and she used to assault the appellant with utensils available in
the house. The old mother and father of the appellant were also being
humiliated and abused by the opposite party/respondent in very filthy
language. The opposite party/respondent has a tendency to spend much
time in her parental home (Naihar).
40. Further, the appellant had filed an Original Suit No.114/2018 under
Section 9 of Hindu Marriage, which was disposed of on 16.02.2019 on the
basis of compromise. It is alleged that the opposite party/respondent went
to the house of appellant but the attitude of the opposite party/respondent
2025:JHHC:34929-DB
was rude at that time and she started to abuse and assault the appellant and
his old mother and father also. In view of the said circumstances, it is
quite impossible for the appellant to lead a peaceful conjugal life with the
opposite party/ respondent and hence, necessity arose for filing this suit
for divorce.
41. The evidence has been led on behalf of both the parties, i.e., the
appellant-husband and the respondent-wife.
42. The appellant-husband has examined two witnesses, i.e., P.W.1,
namely, Sulochna Devi and P.W.2, namely, Raja Nand Choudhary
(appellant-husband).
43. The respondent-wife, namely, Jyoti has also been examined as D.W.1.
44. For ready reference, the evidences led on behalf of the parties are being
referred as under: -
P.W.-1 Sulochana Devi, has deposed in her examination-in-chief that
the instant case has been filed by her son Raja Nand Choudhary against
his wife Jyoti for getting divorce from her because his wife Jyoti is rude,
cruel and aggressive. She has further stated that just after three months of
marriage, Jyoti (respondent herein) started to act with cruelty and she was
not taking care of anyone. She used to quarrel with her husband
frequently on petty matters and when we were trying to persuade her, she
used to make us silent and further, she was abusing us also.
She had further stated that on 01.05.2014, there was marriage of
her daughter but her daughter-in-law (respondent wife) did not attend the
said function in spite of her repeated requests and she remained in the
2025:JHHC:34929-DB
house of her father at Deoghar. Her daughter-in-law (respondent wife)
jyoti used to flee away to her Naihar frequently and her mother, father
and brother were also assisting her. Her daughter-in-law (respondent
wife) did not want to live in her matrimonial home nor she was doing the
domestic work like cooking of food and cleaning cloths etc. She had
further stated that her son Raja Nand Choudhary had taken away the Jyoti
with him at the place of his work also but she did not allow to live her son
peacefully.
In the year of 2018, her son lost his job and started to reside in
Deoghar. The father's house of Jyoti is also in Deoghar and she used to go
there frequently. Jyoti had made our life troublesome and she had become
too aggressive and she used to abuse and assault her husband frequently.
She was not providing food to us and she used to throw the cooked food
also. She had further stated that Jyoti was always abusing her husband
and she had assaulted her on several occasions with slaps. She used to
confine herself in the bathroom frequently for 1-2 hours and bolt the door
of bathroom from inside. On 4-5 occasions, Jyoti had left our house in
night without any information and she had not gone to her Naihar also.
She used to return back to matrimonial house in late night at about 12
O'clock and when they were trying to know about her said movement in
late night, she used to threaten them for committing suicide by jumping
from roof and thereby, implicating them in false case.
This witness has further stated that due to the quarrel of Jyoti
(respondent), people nearby were frequently visiting our house and our
reputation was lowered down in the society. Jyoti used to call her brother
2025:JHHC:34929-DB
and make him to abuse this witness on several occasions. She had further
stated that Jyoti and his brother had assaulted her son Raja Nand
Choudhary (appellant herein) on several occasions and due to the said act
of Jyoti, it has become difficult for her son to live with her and if both of
them are living together, any mishappening may take place at any time.
In her cross-examination, she has stated that the Raja Nand
Choudhary is her only son and he was married with Jyoti on 20.06.2011.
Her son had worked in Jammu & Kashmir since 2011 to 2019 and had
gone to foreign in the year of 2016 for 6 to 7 months. She had further
stated that she cannot say about the total number of cases pending
between her son (appellant herein) and daughter-in-law (respondent).
Further, she had stated that she has heard that the Jyoti had lodged a case
of dowry against her son. She had further stated that she know that her
son had stated before this Court that he is ready to keep his wife and
children with him and earlier, there was a compromise in Court and her
son taken back her daughter-in-law from the Baba Baidyanath Temple on
19th March but her daughter-in-law again flee away from her matrimonial
home on 29th March. Further, she has denied from this suggestion of
respondent that she does not want to keep her daughter-in-law.
P.W.2, namely, Raja Nand Choudhary has deposed in his
examination-in-chief that the marriage with respondent-Jyoti was
solemnized on 20-06-2011 according to Hindu Rites and Rituals and
thereafter, his wife started to live with him. He was doing private job and
he had kept his wife with him at the place of his posting at different
places like, Mysore, Delhi, Panipat and Jammu & Kashmir. He had
2025:JHHC:34929-DB
further stated that he was keeping his wife well but his wife is of rude
nature and she is aggressive and she do not want to live in peace and she
was always quarrelling with him and raising hulla as also abusing him.
He had further stated that his wife used to assault him frequently with
slaps and never taken care of her any words. She used to quarrel with him
and his mother and father. She was always humiliating him and she used
to cry on petty matters and gathered the people of locality in house. He
had further stated that respondent/wife used to flee away to her Naihar
along with her brother and father silently and without saying anything to
him. She was neither cooking food nor she wanted to do any domestic
work and, on several occasions, the brother of his wife had also assaulted
him. He had further stated that his wife used to throw the cooked food
and she was not providing him food and she used to confine herself in
bathroom for 1-2 hours after bolting its door from inside. She used to
threaten them for committing suicide after jumping from roof.
This witness has further stated that in the year of 2018, he had lost
his private job and came to my house at Deoghar. The Naihar of his wife
is also in Deoghar and she made our life full of miseries in Deoghar by
quarrelling with us daily. She used to assault and flee away to her Naihar
along with two minor children. His wife has not made any marital relation
with him since the year of 2018 and she became aggressive. On several
occasions, she had broken the articles of kitchen and raised hulla also. She
used to abuse and dash his old mother also and under the said
circumstance, it is difficult for him to live with her. His wife had lastly left
her matrimonial home on 29.03.2019 and she went to her Naihar along
2025:JHHC:34929-DB
with children by taking all the articles. She was treating him rudely and
not allowing him to make physical relation with her. On 29.03.2019, Jyoti
came to his house along with her brother and father and they had assaulted
him due to which he had sustained injuries and he had lodged case being
Deoghar P.S. Case No. 21/2020.
In his cross-examination, he has deposed that he is residing in
Deoghar since 2018 in the house of his mother and father. Since 2012 to
December, 2018, he was serving outside but from the year 2014 to 2017
he had worked in India. He had remained in foreign for about three years
and during the said period, his wife and children were in the parental
house of his wife without his consent. His wife had lived with him in
Jammu & Kashmir, Panipat, Delhi and Mysore and his both sons were
born in Deoghar. Presently, he opened a showroom of Apollo tyres. He
had sent about Rs. 6-7 lacs in cash to his wife through his father during
period of his stay in foreign for about three years. He used to send the said
money to his father and he used to deliver it to the Jyoti. He was not
sending money directly to his wife because the account number of his
wife was not with him. He had opened two accounts of his wife. The first
account was opened in the year of 2011 in the UCO Bank Deoghar and
another account was opened in the year of 2015 in the ICICI bank Mysore
Branch. Presently, altogether five cases are pending between them. He did
not inform to Police about the leaving of house by his wife in late night.
On 20.03.2019, his wife had abused and ill-treated him and his mother and
further on 21.03.2019, his wife had called her father and younger brother
in his house at about 7 O'clock in the evening and they had abused and ill-
2025:JHHC:34929-DB
treated them and its video is also available with him. His wife came to his
house lastly on 12.02.2019 by the order of Family Court.
He had further stated that he had inaugurated the showroom of Apollo
Tyre on 20-10-2021 and he had himself brought his wife and two children
in the inaugural ceremony of his showroom.
Further, he has denied from this suggestion of respondent that at
the time of taking bail before this Court, he had promised that after being
released on bail, he will bring back his wife and children with him.
Further, he has denied from this suggestion of respondent that even after
taking back his wife by the direction of Court, he was abusing and
assaulting his wife and children.
He has further stated that this matter was referred to the Mediation
Centre from the Court of learned Chief Judicial Magistrate where it was
decided that he shall bring back his wife and children with him, but when
he went to bring back his wife and children, they repulsed him from their
house by abusing him. He had filed a case of 'Bidai' also which was
compromised and he had taken back his wife and children with him on
12.02.2019. He had stated that he had no knowledge that who has
incurred the expenditure of the education of his children. Further, he has
denied from this suggestion of respondent that this case has been filed by
him against his wife on false grounds only for showing his arrogance of
wealth. Further, he has denied from this suggestion that his wife wants to
live with him but he is not ready to keep her due to his rude behaviour.
2025:JHHC:34929-DB
D.W.-1 Jyoti (respondent-wife), has deposed in her examination-in-
chief that that she was married with the petitioner on 20.06.2011 in
Deoghar. After marriage, she started to live together as husband and wife
and in course of time, a baby was born on 23.08.2012 and further a
daughter was born on 15.09.2017 from their wedlock whose name is
Amogh Raj and Anika Choudhary respectively. Her husband started to ill-
treat her just after the marriage and he was unable to discharge the duty of
husband but she was tolerating all his atrocities. Her husband was posted
at Mysore and she was also living there with him where he used to abuse
her by referring the name of her mother, father and brother. She had
further stated that she lived with her husband from the year 2011 to 2017
regularly but it had become habit of her husband to abuse her and her
parents and misbehaved with her and used filthy comments against her. At
the time of delivery of her child in the year of 2012 and 2017, her husband
left her alone at the instance of his parents and sister. Her both children
were born in Deoghar in the clinic of Dr. Manju Banker and Dr. Arpita
Gandhi but her husband did not come even at that time nor he incurred
any expense of her delivery and the entire expense of delivery was
incurred by her father. But, in spite of that she was tolerating all these
things in hope of a better future.
She had stated that her husband had filed a false case under Section 9
of the Hindu Marriage Act which was compromised and she had gone to
her matrimonial home again on 11.02.2019 from the Baba Baidyanath
Temple but even thereafter, the attitude of her husband was not positive
towards her.
2025:JHHC:34929-DB
She had further stated that on 29.03.2019, her husband drove out her
along with her children from her matrimonial home after abusing and
assaulting. Thereafter, she went to the Mahila P.S with her father and
lodged a case against her husband Raja Nand Choudhary (appellant
herein), father-in-law-Vishnu Choudhary, mother-in-law-Sulochana Devi
and sister-in-law-Vani Jha, vide Mahila P.S. Case No. 08/2019 under
Section 498-A, 323, 304/34 of the Indian Penal Code. Her husband kept
her ornaments and cloths etc. with him.
She had further stated that her husband has stated before this Court
in the A.B.A No.157/2020 that he is ready to keep his wife with him.
Thereafter, as per direction of this Court, the matter was referred to the
Mediation Centre, Deoghar where mediation was successful with her
consent but subsequently her husband again denied from keeping her with
him and hence, she has been constrained to live in the house of her father
who is a retired bank employee and she is providing education to her
children from there. She has further stated that her husband never
discharged his obligation towards her and her children and he has lodged
this case on false allegations.
Further, in her cross-examination, this witness has deposed that she
had not filed any written complaint against her husband before the year of
2019. She has stated that some quarrel was happening between husband
and wife since beginning but she was tolerating it. The dispute was
increased since the year of 2017 and after filing of this case, it was further
increased. Further, she has denied from this suggestion that she was
subjecting the petitioner/husband and his parents with cruelty and
2025:JHHC:34929-DB
threatening to kill them. Further, she has denied from this suggestion also
that she had assaulted and injured her husband and she has said that
actually it was her husband, who had driven her out from her matrimonial
home.
45.The learned Family Judge has appreciated the entire evidence as well as
the documents exhibited on behalf of both the parties and after
formulating a specific issue whether the petitioner is entitled for a decree
of divorce under Section 13(1) (i-a) of the Hindu Marriage Act, 1955 has
dismissed the suit filed by the husband, which is under challenge in the
instant appeal.
46.The fact about filing of suit on the ground of cruelty is admitted one as
per the evidences adduced on behalf of the appellant husband, he has
tried to establish the element of cruelty upon him at the hands of the
respondent-wife.
47.The appellant-husband all along has alleged the issue of cruelty which he
was subjecting to by the respondent-wife and in order to establish the
same, the evidences have been laid, as has been referred hereinabove.
48.This Court, while appreciating the argument advanced on behalf of the
appellant 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.
49.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
2025:JHHC:34929-DB
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.
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:
2025:JHHC:34929-DB
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.
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."
50. Thus, from the aforesaid, it is evident that any order said to be perverse 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.
51. In the instant case, the ground for divorce has been taken on the ground
of cruelty, therefore, it would be apt for this Court to discuss the element
of cruelty in order to appreciate the claim of the husband that whether he
has been subjected to the cruelty by his wife.
2025:JHHC:34929-DB
52.The "cruelty" has been interpreted by the Hon'ble Apex Court in the case
of Dr. N.G. Dastane vs. Mrs. S. Dastana, (1975) 2 SCC 326 wherein it
has been laid down that the Court has to enquire, as to whether, the
conduct charge as cruelty, is of such a character, as to cause in the mind
of the petitioner, a reasonable apprehension that, it will be harmful or
injurious for him to live with the respondent.
53.This Court, deems it fit and proper to take into consideration the meaning
of 'cruelty' as has been held by the Hon'ble Apex Court in Shobha Rani
v. Madhukar Reddi, (1988)1 SCC 105 wherein the wife alleged that the
appellant-husband and his parents demanded dowry. The Hon'ble Apex
Court emphasized that "cruelty" can have no fixed definition.
54. According to the Hon'ble Apex Court, "cruelty" is the "conduct in
relation to or in respect of matrimonial conduct in respect of matrimonial
obligations". It is the conduct which adversely affects the spouse. Such
cruelty can be either "mental" or "physical", intentional or unintentional.
For example, unintentionally waking your spouse up in the middle of the
night may be mental cruelty; intention is not an essential element of
cruelty but it may be present. Physical cruelty is less ambiguous and more
"a question of fact and degree."
55. The Hon'ble Apex Court has further observed therein that while dealing
with such complaints of cruelty it is important for the Court to not search
for a standard in life, since cruelty in one case may not be cruelty in
another case. What must be considered include the kind of life the parties
are used to, "their economic and social conditions", and the "culture and
human values to which they attach importance."
2025:JHHC:34929-DB
56. The nature of allegations need not only be illegal conduct such as asking
for dowry. Making allegations against the spouse in the written statement
filed before the court in judicial proceedings may also be held to
constitute cruelty.
57. In V. Bhagat vs. D. Bhagat (Mrs.), (1994)1 SCC 337, the wife alleged in
her written statement that her husband was suffering from "mental
problems and paranoid disorder". The wife's lawyer also levelled
allegations of "lunacy" and "insanity" against the husband and his family
while he was conducting a cross-examination. The Hon'ble Apex Court
held these allegations against the husband to constitute "cruelty".
58. In Vijay kumar Ramchandra Bhate v. Neela Vijay Kumar Bhate,
(2003)6 SCC 334 the Hon'ble Apex Court has observed by taking into
consideration the allegations levelled by the husband in his written
statement that his wife was "unchaste" and had indecent familiarity with
a person outside wedlock and that his wife was having an extramarital
affair. These allegations, given the context of an educated Indian woman,
were held to constitute "cruelty" itself.
59. It requires to refer herein that the Hon'ble Apex Court in Joydeep
Majumdar v. Bharti Jaiswal Majumdar, (2021) 3 SCC 742, has
observed that while judging whether the conduct is cruel or not, what has
to be seen is whether that conduct, which is sustained over a period of
time, renders the life of the spouse so miserable as to make it
unreasonable to make one live with the other. The conduct may take the
form of abusive or humiliating treatment, causing mental pain and
anguish, torturing the spouse, etc. The conduct complained of must be
2025:JHHC:34929-DB
"grave" and "weighty" and trivial irritations and normal wear and tear of
marriage would not constitute mental cruelty as a ground for divorce.
60. Thus, from the aforesaid, it is evident that for established act of cruelty
the conduct complained of either by the spouse must be "grave" and
"weighty" and trivial irritations and normal wear and tear of marriage
would not constitute mental cruelty as a ground for divorce. Further it is
evident from the interpretation of the word cruelty that the same is to be
considered on different parameters depending upon the material, if
available on record.
61. This Court, on the premise of the interpretation of the word "cruelty" has
considered the evidences of the witnesses as has been incorporated by the
learned trial Court in the impugned judgment and the same has been
referred hereinabove in the preceding paragraphs.
62. Admittedly, the parties had lived together for about 6 years without any
hassle i.e. from 2011 to 2017 and during the said period two children
were also born from heir wedlock. The petitioner/appellant/husband has
alleged about rude/cruel behaviour of his wife towards him and his family
members but surprisingly, the husband/appellant has not examined
independent witness or any of his neighbour to substantiate his allegation.
Further, it is evident from the record that prior to filing the Deoghar
Mahila P.S. Case No.08/19, the appellant/husband had never made any
complain to anyone about the alleged cruel behavior of his respondent
wife.
63. It is apparent from the record that admittedly appellant/husband has filed
petition before the Court being Original Suit No. 114 of 2018 for
restitution of his conjugal right under Section 9 of Hindu Marriage Act,
2025:JHHC:34929-DB
same has been marked as Ext.B before the Family Court. Thus, it is an
admitted document wherein the appellant husband has not taken the plea
of rude/cruel behavior of his wife but before the Family Court, plea of
cruel behavior of respondent wife has been alleged, which is contrary to
his own version.
64. It is evident from the entire material available on record that the
appellant-husband although has taken the ground of cruelty meted to him
by his wife but, in course of trial, he has failed to establish the element of
cruelty meted out to him at the hands of the respondent-wife.
65. This Court, after considering the aforesaid factual aspects 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 element of cruelty has well been considered by the learned
Family Judge, which would be evident from various paragraphs of the
impugned judgment, for ready reference, the relevant paragraphs of the
impugned judgment are being quoted as under:
" In the instant case also, nothing such has been brought on record
from which it can be gathered or even remotely inferred that the
respondent had inflicted such cruelty towards the petitioner which can
be said to be dangerous for his life, limb or health. The petitioner
Raja Nand Choudhary (P.W.2) has himself said at para 23 of his
cross-examination that during his stay at foreign he had allegedly sent
Rs. 6 to 7 lac in cash to his wife (respondent) through his father. This
P.W.2 Raja Nand Choudhary has said in para 20 of his cross-
examination that till the November 2018 he was posted in Jambia.
Thus, it is clear from the aforesaid two statements of the petitioner
(P.W.2) also, that till the November, 2018 there was no grave
bitterness in matrimonial relation of the parties otherwise there was
no reason of sending such a huge amount of money to the respondent
by the petitioner through his father. Of course, there had been some
quarrel and disputes between the parties, prior to the year of 2018
2025:JHHC:34929-DB
also and the same has been admitted by the D.W.1 Jyoti also in para
31 of her cross-examination, but the said incidents of quarrel does not
seems to be more than the daily wear and tear of a marital life which
can't be made basis for a decree of divorce. As per own statement of
the P.W.2 Raja Nand Choudhary made at para 30 of his cross-
examination, the petitioner had himself brought the respondent and
her children with him in the inaugural ceremony of his shop on 20-10-
2021 which also goes to show that even after having some differences,
and filing of this case for divorce in the year of 2019, the parties have
emotions and care for feelings of one another and their marital
relation has not become completely dead or broken requiring its
dissolution.
Therefore, on the basis of the aforesaid discussion this Court
finds that the petitioner has been completely failed in proving his plea
of cruelty of respondent towards him and his family members and
whatever incidents of quarrel and dispute have been said to be
occurred between the parties are nothing more than ordinary wear
and tear of family life and none of these incidents can be said to be a
treatment of the petitioner with such cruelty as to cause a reasonable
apprehension in his mind that it would be harmful or injurious for him
to live with the respondent."
66. On consideration of the evidence, the learned Family Judge has come
to conclusion that the appellant-husband has miserably failed to establish the
ground of cruelty against the respondent-wife.
67. On consideration of the finding recorded by the learned Family Court
as has been discussed in the preceding paragraphs, which according to our
considered view, is based upon the appreciation of the evidence led by the
parties, upon which, the finding has been recorded, therefore, no element of
perversity in the impugned judgment has been found, as per the discussion
made hereinabove.
68. This Court, on consideration of the finding arrived at by the learned
Family Judge and based upon the aforesaid discussions, is of the view that
2025:JHHC:34929-DB
the judgment and decree 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, both ocular and documentary, as would be evident
from the impugned judgment.
69. This Court, therefore, is of the view that the judgment dated
26.09.2022 and the decree dated 11.10.2022 passed in Original Suit No.101
of 2019 by the learned Principal Judge, Family Court, Deoghar need no
interference.
70. Accordingly, the instant appeal being F.A. No.06 of 2023 stands
dismissed.
71. Pending interlocutory applications, if any, stand disposed of.
Prayer
72. The appeal being F.A. No.50 of 2023 filed under Section 19(1) of the
Family Court Act, is directed against the Judgment dated 31.03.2023 (decree
sealed and signed on 10.02.2023) passed in Original Suit No.71 of 2021 by
the learned Principal Judge, Family Court at Deoghar, whereby and
whereunder, the application filed by the petitioner Raja Nand Choudhary
against his wife Jyoti under Section 6 of the Hindu Minority and
Guardianship Act for getting the custody of children has been disposed of in
the light of arrangement made for "Shared Parenting" of children in terms of
clause (a) to (g) of the issue no.(iii) and the parties are directed to comply
with the arrangement made by this Court in its letter and spirit.
Factual Matrix
2025:JHHC:34929-DB
73. The brief facts of the case, as per the pleading made in the plaint, is
required to be enumerated herein which reads as under:
74. The marriage of petitioner/husband with the opposite party was
solemnized on 26.06.2011 according to Hindu Religion and Custom and the
said marriage was registered in the office of Sub Registrar, Deoghar also. In
course of time, a boy was born from the wedlock of parties on 23.08.2012
whose name is Amogh Raj @ Moon. Subsequently on 15.09.2017, another
baby namely, Anika was also born from the wedlock of parties.
75. In the month of March 2019, disputes and differences cropped up
amongst the appellant/wife and respondent husband, thereafter, a suit under
Section 13(i)(i-a) of the Hindu Marriage Act 1955 was filed in the year 2019
by the respondent husband for dissolution of their Marriage. During
pendency of the said suit, the respondent-husband has filed a suit being
Original Suit No. 71 of 2021 before the learned Family Court, Deoghar
under Section 6 of the Hindu Minority and Guardianship Act for getting the
custody of children born out the wedlock of the parties, namely, Amogh Raj
@ Moon and another baby namely, Anika.
76. It has been stated by the petitioner that he is a highly educated person
having educated family back-ground and he has worked as a manager in high
place business with various assignments in Africa, Indonesia and various
Countries and he has a sound financial backing also. During the matrimonial
chaos in the family, the son Amogh Raj @ Moon aged about 08 years and
daughter Anika Choudhary are living in absence of father and due to careless
attitude of the opposite party/wife (appellant herein), the children are not
getting proper education and proper care.
2025:JHHC:34929-DB
77. It has been further stated that in absence of appropriate guardianship
by the opposite party, it is possible that the children may get indulged in
anti-social or unsocial atmosphere. The petitioner (respondent herein) tried
to see his children on several occasion but he was not allowed by the
opposite party/wife to meet with his own children and ultimately, on
20.02.2021, he was not permitted to meet with his children.
78. It has further been stated that the cause of action for the filing of the
aforesaid suit arose on 20.02.2021, as such, following prayer has been made
in the said suit:
(i) A decree be passed in favour of the petitioner directing the
opposite party to hand over the custody of children to the petitioner?
(ii) For the cost of the suit ?
(iii) For any other relief and reliefs, the Court may think fit and
proper under law.
79. After service of summon, the opposite party/wife had appeared and
filed her written statement on 04.12.2021 stating therein that the petitioner is
under the ill advise of his parents, sister and other relatives and he has
completely failed to perform his duty as a guardian. The petitioner had no
any respect, love or affection for the opposite party or her children and he
never took any responsibility of his children since their birth.
80. It has further been stated that the opposite party/wife (appellant
herein) is post graduate in English whereas the petitioner (respondent herein)
is an irresponsible father who has no love and affection for his children and
wife and he used to create havoc in the society by various means for showing
his supremacy. The petitioner (respondent husband) never played a role of
2025:JHHC:34929-DB
responsible father nor he met the expenditure of opposite party and her
children.
81. The petitioner/husband never treats his wife (appellant herein) as a
companion and his background is very bad and if the children are handed
over to the petitioner/husband, their life will spoil. The father of wife
(appellant herein) was also a bank Manager of Co-operative Bank and
presently he is also taking proper care of children and their education. The
behaviour of petitioner/husband is very rude and inhuman and whenever he
came to the house, created an unholy scene, therefore, the petitioner has no
cause of action for this suit and the instant suit is liable to be dismissed.
82. On the basis of the pleadings of the parties, following issues have
been framed by the learned Family Court:
ISSUES
(i) Whether the suit as framed is maintainable in its present form?
(ii) Whether the petitioner has valid cause of action?
(iii) Whether a decree should be passed in favour of petitioner directing
the opposite party to handover the custody of children to petitioner?
(iv) Whether the petitioner is entitled to get the relief claimed or any other
relief?
83. The learned Family Court, based upon the evidences adduced on
behalf of the parties, disposed of the suit vide impugned judgment in the
light of arrangement made for "shared parenting" of children in terms of
clause (a) to (g) of the issue no. III and the parties were directed to comply
with the arrangement made in its letter and spirit, against which the present
appeal has been preferred by the appellant/wife.
Submission of the learned counsel for the Appellant/wife
2025:JHHC:34929-DB
84. The learned counsel appearing for the appellant has taken the
following grounds in challenging the impugned judgment:
(i) The learned counsel for the appellant wife has submitted that
the learned Family Judge has not appreciated the evidence as has been
adduced on behalf of the appellant/ wife in right perspective and even
though order of "share parenting" has been passed.
(ii) Learned counsel for appellant has submitted that the money
alone cannot be deciding factor in giving custody of child and the love
and affection of a mother is also very essential for proper nourishment
and development of a child.
(iii) It has further been contended that the respondent/ husband is
not a responsible father and he was never ready to discharge the duty
of a responsible father and he is an arrogant person and he wants to
further make the life of appellant wife pathetic by snatching her
children on the strength of his money.
(iv) It has further been contended that while deciding the custody of
child, the paramount consideration is the welfare of child which can
be best served with their mother.
85.The learned counsel, based upon the aforesaid ground, has submitted that,
therefore, the impugned judgment suffers from an error, hence is not
sustainable in the eye of law.
Submission of the learned counsel for respondent/husband
86. While on the other hand, learned counsel appearing for the
respondent/husband has taken the following grounds while defending the
impugned judgment:
2025:JHHC:34929-DB
(i) The learned Family Judge has not committed any error, since
the vital aspect of the matter of the statutory command have been
taken into consideration, which is the welfare of the minor child.
(ii) The respondent/husband is natural guardian of his children and
he has sufficient source of income for making the future of his
children bright and on the other hand, the opposite party has no source
of income and she is dependent upon her father who cannot provide
better education to the children.
87. On the aforesaid premise the learned counsel for the respondent has
submitted that if the learned Family Judge by taking into consideration the
aforesaid facts have passed the order of "shared parentage" then it cannot be
stated that the Court has committed any error, hence the present appeal is fit
to be dismissed.
Analysis
88. We have heard the learned counsel for the parties and gone through
the material available on record, as also the finding recorded by the learned
Family Judge in the impugned judgment.
89. The question of legality and propriety of the impugned judgment is
the issue of consideration in the present appeal.
90. This Court before considering the aforesaid rival submission and
propriety of the impugned judgment needs to discuss herein the relevant part
of the evidences adduced on behalf of the parties as also to refer the statutory
provision as provided under the Hindu Minority and Guardianship Act,
1956.
2025:JHHC:34929-DB
91.The petitioner/husband (respondent herein) has examined his mother and
himself as P.W.1 and P.W.2 respectively in support of his case.
92.Apart from the oral testimony of the aforesaid witnesses, the petitioner
has filed some photocopy of documents also which have been marked
with identification marks as follows: -
(i) Mark X- Photo copy of ICICI Insurance dt.10.09.2015
(ii) Mark X/1- Photo copy of insurance in the name of Raja Nand
Choudhary wife and children of year 2022.
(iii) Mark X/2- Photo copy of Bank Account of Sukanya Smridhi
Scheme on 15.09.21
(iv) Mark X/3- Photo copy of medical injury treatment report of
Sadar Hospital on 29.03.19.
93.The opposite party/wife (appellant herein) has examined herself as DW.1
and also had examined Subodh Chandra Jha as D.W. 2.
94. Apart from the aforesaid oral testimony, the opposite party/wife
(appellant herein) has also filed some documents which have been
marked exhibits as follows :-
(i) Ext A- Certified copy of the deposition P.W. 2 in Original Suit
101/19.
(ii) Ext B- Certified copy of the deposition P.W. 1 in Original Suit
(iii) Ext C - Certified copy of order sheet dated 7.4.22 in Mahila P.S.
(iv) Ext D to D/15- School Fee receipts
95. For ready reference the testimonies of witnesses are being referred herein
which reads as under:
2025:JHHC:34929-DB
96. The P.W. 1 Sulochana Devi has said in her examination-in-chief that the
child Amogh Raj was born on 23.08.2012 and Anika Choudhary was
born on 15.09.2017. She had further stated that the conduct of her
daughter-in-law Jyoti was very rude from just after the marriage and she
was not caring about anyone. She used to assault her husband with slaps
and fist and dash her also. The father's house of Jyoti (appellant herein) is
also in Deoghar and she has taken both the children to her father's house.
She had further stated that her daughter-in-law (appellant herein) is
very aggressive and her character is also not good and she is not taking
proper care of her children. She does not send her children to proper school
nor she takes care of them and children have been seen wandering here and
there on several occasions due to which they apprehend that they may fall in
bad association. This witness had further stated that her daughter-in-law
(appellant herein) does not allow to meet her husband with his children and
whenever her son tried to meet with his children, her daughter-in-law
became furious and aggressive and ready to assault.
Further in her cross-examination this witness had stated that today
she has come with her son Raja Nand (respondent husband herein) for
deposing before the Court. She further testified that she doesn't know about
the school in which my grand-daughter and grandson are studying since the
year of 2019 and she has no knowledge about their present status. She had
further stated that altogether five cases are pending between her son and her
daughter-in-law. Further, she has denied from this suggestion that the
environment of her house is not good.
2025:JHHC:34929-DB
97.The P.W. 2 Raja Nand Choudahry (respondent herein) has stated that he
has filed this case for getting custody of his son Amogh Raj @ Moon and
daughter Anika Choudahry. The date of birth of Amogh Raj is
23.08.2012 whereas the date of birth of Anika Choudhary is 15.09.2017.
He had further stated that he was married with Jyoti @ Golden (appellant
herein) on 26.06.2011 in Deoghar according to Hindu Rituals and Rites.
He had further stated that the nature of my wife is very rude and she is a
quarrelsome lady and she used to always quarrel with him and she was
abusing and assaulting him frequently. She used to assault him with slaps
in presence of his neighbour .
98. He had further stated that he had lost his job in the year of 2018 and
started to live in Deoghar whereupon his wife(appellant) became more
furious and she was frequently quarreling and leaving his house. He had
testified that on 29.03.2019 his wife went to her father's house along with
his both the minor children and father and brother of his wife had
assaulted and injured him for which he has filed a Deoghar Town P.S.
Case no. 21/2020 also. He had stated that his wife has taken all ornaments
with her and in course of going, she threatened him that she will not live
with him.
99.This witness has further said that his wife is not taking proper care of the
children and she is not providing them good education and his brother in-
law is a drunker and father-in-law used to consume too much Ganja due
to which he apprehends that his child will also become drug addict and
their life may ruin in bad association. He intends to provide good
education to his children and thereby make them good/citizen so that they
may live well in society.
2025:JHHC:34929-DB
100. He had further stated that his wife does not care for children and she
used to leave them to move here and there with dirty boys for whole day.
His wife has not given my children in good school and she does not
provide good tuition to them due to which there is danger of spoiling of
their future. He had further stated that he had tried to meet his children
several times but his wife and her brother and father do not allow him to
meet with his children. In the month of February 2021, he had tried to
keep his children but his wife did not allow it and she was adamant. He
had stated that his both minor children will remain safe in his custody and
their life will be flourished and if they are allowed to remain with their
mother, their life will be spoiled. He intends to obtain custody of this
children for their welfare and proper maintenance.
101. Further, in his cross-examination this witness has said that his
monthly income is about 25-30 thousand only and he has no immovable
property in his name and his bank balance is about 6-7 lacs. He had
further stated that he has not seen his brother-in-law drinking wine ever.
He has two brothers-in-law out of whom one is posted in Punjab National
Bank and he does not know the whereabouts of his second brother-in-
law. Further, he has denied from this suggestion that he had filed an
undertaking before the Hon'ble High Court of Jharkhand, Ranchi that he
shall keep his wife with him. He has further said that he has no document
for showing that he had ever paid fee and other educational expense of
his children.
102. The D.W. 1 Jyoti (the appellant wife herein) has said in her
examination-in-chief that she is maintaining her both children and
providing education to them with the help my retired father and the aim
2025:JHHC:34929-DB
of her life is to provide good education to her children and make them a
good citizen. Presently, her both children are studying in Sandipani
Public School and her son Amogh Raj is in class 3 and her daughter is
getting education in Nursery. Further, this witness has identified the fee
receipts issued by Sandipani Public School which have been marked as
Exhibit- D to D/15.
103. This witness has further said that her husband Raja Nand Choudhary
(respondent herein) was torturing and always ill-treating her and her
children and on 29.03.2019, he had driven her out from her matrimonial
home after assaulting her and since then, she has been residing in her
father's house and struggling for providing a good environment to her
children. She had further stated that her husband is neither a responsible
person nor a responsible guardian and he has arrogance of his wealth
which is a hindrance in being a good man.
104. She had further stated that her husband has leveled false allegations
against her and if her children are being allowed to go in custody of her
husband, their life will be spoiled. She had further stated that she is post
graduate in English and used to teach her children.
105. Further in her cross-examination this witness has said that the
Sandipani School has no recognition from Government however it is in
process and she has got admission of her children in the said school in-
spite of knowing this fact because it is better to provide education to
children in a school of nearby as it provides good care. She had further
stated that she is an unemployed and she has no source of income. Yet
she goes to the Sandipani School and teach in Junior section but she does
not get salary from there. She had further stated that her mother and
2025:JHHC:34929-DB
father are self-sufficient and they do not need her service. She had stated
that on 29.03.2019 her husband had driven out them from her
matrimonial home after assaulting and since then she and her children are
together. This witness has further said that being a human and mother of
children, she wants that her children should get education from a good
school and become a good citizen and if her husband wants to get
admission of her children in D.A.V School and pay its expenditure by
allowing the children to live with her peacefully and without any
hindrance, she will be ready for it. She had further stated that she doesn't
want to handover her children to her husband. Further she has denied
from this suggestion of petitioner husband (respondent herein) that her
father consumes Ganja and her brothers drink wine. Further, she has
denied from this suggestion also that the atmosphere of her parental
house is not good for children and she allows the children to go in bad
association.
106. The D.W. 2 Subodh Chandra Jha has said in his examination-in-chief
that just after marriage, his son-in-law started to ill-treat his daughter and
he was abusing and assaulting her without any reason. In course of time,
his daughter (appellant herein) conceived whereupon Raja Nand
Choudhary (respondent husband) started to quarrel with her for saving his
skin from bearing the expense of delivery. The delivery of his daughter
was done on 23.08.2012 in the clinic of Dr. Manju Banker and its all
expenses were borne by this witness. Again on 15.09.2017 the second
baby of his daughter was delivered in the private clinic of Dr. Arpita
Gandhi and its entire expense was incurred by this witness. The Raja
Nand Choudhary (respondent husband) never played a role of good
2025:JHHC:34929-DB
guardian and on 29.03.2019 the Raja Nand Choudhary, his father Bishnu
Deo Choudhary, mother Sulochana Devi and sister Vani Jha assaulted
and abused his daughter and drove his daughter out from her matrimonial
home along with her children whereupon his daughter had lodged a
Mahila P.S. Case No. 08/2019 dated 29.03.2019 u/s 498 A, 323, 504/34
I.P.C.
107. He had stated that presently he is providing education to both children
of his daughter in a school situated at Deoghar and he want to make them
a good citizen. His one son is employed in Bank whereas the other is
doing private job after passing M.B.A. He had stated that the petitioner is
a man of arrogance and he has ego of money and further his sister Vani
Jha also does not behave properly due to which the atmosphere of
petitioner's (respondent herein) house is so bad that children's future
cannot be bright there. He had further stated that his daughter is post
graduate in English and she provides good education to her children.
108. Further, in his cross-examination this witness has said that yet his
daughter is unable to maintain her both children herself but he is
competent for it.
109. After referring the aforesaid testimonies, it would be apt to discuss
herein the Section 6 of the Hindu Minority and Guardianship Act, 1956
(hereinafter referred to as the Act of 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:
2025:JHHC:34929-DB
"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 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.
2025:JHHC:34929-DB
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."
110. It needs to refer herein that the word "after" as used in Section 6(a) of
the Act, 1956 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.
111. It is evident from the mandate of the said Statute that although the
father has been made natural guardian but how to make balance in awarding
the custody of the minor, the wellbeing consideration even in the Statute has
been mandated by inserting the provisions under section 13 thereof.
112. It is evident from Section 13 of the Act, 1956 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.
113. Section 13 of the Act of 1956 is very specific that there cannot be
compromise on the issue of the welfare of the minor even though the father
2025:JHHC:34929-DB
is natural guardian in view of the provision of section 6 of the Hindu
Minority and Guardianship Act, 1956.
114. The relevance of provision of section 13 of the Act of 1956 has got
bearing in the matter of custody of the minor if the sub-section 2 of section
13 will be taken into consideration wherein the word starts "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", meaning thereby, it is onus upon the Court to come to the
satisfaction by making out a concrete opinion regarding the issue of the
welfare of the minor.
115. 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.
116. 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 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:
2025:JHHC:34929-DB
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, 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."
117. 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 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
2025:JHHC:34929-DB
surroundings but over and above physical comforts, the moral and ethical
values have also to be noted.
118. 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.
119. 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.
120. 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 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 wellbeing 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
2025:JHHC:34929-DB
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.
121. 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:
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.'
122. 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
2025:JHHC:34929-DB
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:
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.
123. 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.
124. 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
2025:JHHC:34929-DB
is to be seen and not the rights of the parties, the relevant paragraph of the
aforesaid judgment is being quoted as under:
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 318 : (2015) 4 SCC (Civ) 87] , opined
that the child is not a chattel or ball that it is bounced to and for the
parents. Welfare of the child is the focal point. Relevant lines from
para 18 are reproduced hereunder : (SCC p. 328)
2025:JHHC:34929-DB
"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 for 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
Gowda v. State can of be made to Rohith Thammana 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 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."
125. 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
2025:JHHC:34929-DB
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.
126. In the backdrop of the aforesaid settled position of law this Court is
now adverting to the factual aspect of the present case in order to asses as to
the whether the findings so recorded by the learned Family Judge can be said
to suffer from an error by giving go by to the mandate of section of the
Hindu Minority and Guardianship Act, 1956 and further as to whether while
passing the order of "share parentage", the learned Family Judge has
committed an error by giving go by to the provision of sub-section 2 of
section 13 of the Hindu Minority and Guardianship Act, 1956.
127. It is evident from the statutory provision referred herein as also the
judgment passed by Hon'ble Apex Court, the consideration has been given
by laying down the law that even the father is the natural guardian but the
well-being/welfare of the minor child is to be taken into consideration as
provided under Section 13 of the Act 1956, wherein the welfare of the minor
has statutorily been provided of the paramount consideration.
128. The Hon'ble Apex Court in the judgment referred hereinabove has
also come out with the said view that the paramount consideration in the
matter of guardianship/custody is the welfare of the minor child.
129. This Court, after having referred the statutory provision as discussed
hereinabove as also the judgment pronounced by the Hon'ble Apex Court is
proceeding to examine the factual aspect so as to come to the conclusion
regarding the issue of the infirmity said to be caused by the learned principal
Judge Family Court.
2025:JHHC:34929-DB
130. It is evident from the testimony of the witnesses which has been
referred hereinabove in the preceding paragraphs that there are series of
litigations between the parties. Further, it is also undisputed that both parties
are residing in the same city, being Deoghar and presently both children are
living with their mother (the appellant herein) in the house of their maternal
grandfather and going to school from there. Both the children are minor as
boy child is 12 years old and daughter child is 8 years old. The appellant is
post graduate in English and she also used to teach in school.
131. It is evident that the respondent has sought custody of children before
learned Family Court basically on the ground that he is highly educated and
has an educational family background and has worked at several places in
the capacity of business Manager and he has a sound financial backing.
Further ground has been alleged that appellant wife has a careless attitude
due to which children are not getting proper education and proper care and in
absence of proper guardianship, the children are likely to get indulge in
inconsiderate atmosphere.
132. As per the testimony it is evident that appellant wife having degree of
post-graduation in subject English, as such both the parties are sufficiently
educated. Further from the testimony of P.W.1 it is evident that this witness
has no idea about present status of her grand-children, which is evident from
part (para 15 of the cross-examination) of her testimony, for ready reference
the same is being quoted as under:
" वर्ष 2019 से मेरा पोता और पोती किस स्कूल में पढ़ रहा है और िैसे रह
रहा है, मुझे इसिी जानिारी नहीीं है। "
2025:JHHC:34929-DB
133. Further it is evident from testimony the P.W. 2 Raja Nand Choudhary
(respondent herein) has admitted in para 24 and 25 of his cross-
examination that his father-in-law Subodh Chandra Jha (father of the
appellant wife) has retired from Co-operative Bank and his brother-in-law
Manish Kumar is working in Punjab National Bank. Further this witness
has admitted in para 27 of his cross-examination that -
" मैने अपने साले िो िभी शराब पीते हुए नहीीं दे खा है | साले िो कदनाींि
21.03.2019 िो शराब िे नशे में दे खा था "
134. Thus, from the aforesaid testimony of P.W.1 Sulochana Devi and
P.W. 2 Raja Nand Choudhary (respondent herein) it is evident that the
entire allegations of the alleged bad association of children and bad
atmosphere of the parental house of the appellant wife have been taken
by the petitioner (respondent husband) without any cogent evidence.
Further the petitioner (respondent husband) is saying that his brothers-in-
law used to consume wine but he himself admitted that he has not seen
him consuming wine. Further, as per own admission of petitioner
(respondent herein) that the petitioner's father-in-law was retired from
Co-operative bank whereas his one brother in-law is working in Bank and
thus, if all these things are taken together it clearly goes to show that the
atmosphere of the house of the parents of respondent (appellant wife
herein) is not bad as pleaded by the petitioner (respondent husband).
135. After appreciating the evidences available on record this Court has
gone through the impugned judgment wherefrom it is evident that the
learned principal Family Judge has taken into consideration the entire
aforesaid fact and further taken into consideration the core of Section 6(a)
2025:JHHC:34929-DB
of the Hindu Minority and Guardianship Act, 1956 and turned down the
claim of custody of the petitioner (respondent husband). However, the
learned Family Judge while negating the claim of petitioner (respondent
husband herein) had passed order of "sharing parentage" against which
the present appeal has been filed by the respondent (appellant herein), for
ready reference the relevant paragraphs of the impugned Judgment are
being quoted herein which reads as under:
"In the instant case also both the mother and father are fighting
several litigations and admittedly the children are presently residing
with their mother (the opposite party). The conciliation was done
between the parties but no could settlement be arrived between them.
Further, the children were also examined in chamber for knowing
their interest wherein the girl Anika showed her inclination much
towards her mother whereas the affection of boy Amogh Raj was
equal towards both his mother and father. Further, it is a matter of
common experience that for the proper growth and all round
development of a child, the care and affection of both the mother and
father is equally needed. But, in the instant case, the children are
being deprived from affection of their father due to litigation of their
parents. Further, both the mother and father are presently residing in
Deoghar and thus they are easily accessible to one another.
Further, it has come on record from the oral testimony of the P.W. 1
Sulochana Devi as well as the P.W. 2 Raja Nand Choudhary also that
the petitioner Raja Nand Choudhary has opened a show.room of
Appolo Tyre and thus it is quite natural that he would remain engaged
in his business from morning to night. In absence of petitioner from
his house, a lady will be needed to look-after the children after their
returning from school and further to assist them in their study also.
But admittedly the petitioner is the only son of his family and thus it is
quite natural that after going of petitioner on his shop, only his old
mother and father will remain available in his house and no other
lady will be available to look after the children.
On the other hand, the respondent/ is mother of the children and
presently she is looking after them at her parental house and the
children are continuing their studies from there. The mother and
father of respondent also live with her It is quite natural that mother
would have interest of the minor most dear to her, Since it is the
mother who would have the interest of the minor most at heart, the
tender years of a child needing care, protection and guidance of the
most interested person, the mother has come to be preferred to
others.------------
Thus, keeping in view the larger interest and welfare of children, this
Court finds that it is in the interest of justice that such an arrangement
should be made that the children can get love and affection of their
both parents and concept of shared parenting will be best suited in
this case. Keeping in view the above stated facts and circumstances of
this case, it would be just and proper for this Court to make
2025:JHHC:34929-DB
arrangement for shared parenting instead of handing over the
children to the petitioner and deprive the children from the affection
of their mother. Hence, keeping in view the larger interest of children,
the following arrangement is made in respect of custody of children.-
(a) the Children shall live with opposite party (mother) from Monday
to till 4 P.M. of Saturday and thereafter the opposite party will sent
the children to the custody of petitioner (father) where children shall
live with their father and grandparents till 7 P.M of Sunday.
Thereafter, the petitioner (father) shall return the children to the
opposite party (mother) by 8 P.M on every Sunday. While dong so, the
safety and security of children shall be ensured by each party. The
provision of transportation for taking the children from the parental
house of the opposite party and further for handing over the children
to the opposite party shall made by the petitioner.
(b) The aforesaid arrangement is for a period of first three weekend in
a month and in the last weak of month, the children will remain in
custody of the opposite party (mother) for the purpose of updating
their studies.
(c) Both parties are directed to see that the children will be made
available for the petitioner (father) during the Summer Vacation,
Winter Vacation /X mas Vacation. The children shall spent first half of
the vacation period with the father and in the second half period of the
vacation, the children will remain in custody of their mother.
(d) The custody of children during the festivals, birthday etc, will be
shared between the father and mother on a mutually agreed basis.
(e) petitioner (father) can have acess to the children through mobile
phone, landline or Skype during the weekdays at a mutually agreed
time. Similarly, the mother will also have acess when the children are
with the father.
(f) It has come on record that the father (petitioner) is interested in
providing good education to the children. The mother Jyoti (D.W. 1)
has also said that she wants to provide education to her children in
good school. Thus, if the petitioner (father) offers to get admission of
children in a good school at Deoghar, both the father and mother
shall take decision in this regard and ensure the best education of
their children.
(g) Both the mother and father shall ensure that the study of children
is not hampered in any way and they shall fully co-operate the
children in completion of their Home Work/Assignment given in
school during their respective custody of children.
Accordingly, this issue is being decided in the light of aforesaid
discussion.
In view of the disposal of issue no. (III), this Court finds that the
petitioner is not entitled to get absolute custody of children and the
instant suit as framed is not maintainable for the relief claimed and
the petitioner has no valid cause of action for it. The petitioner is not
entitled to get the relief claimed, however, he is entitled to get the
relief of shared parenting in terms of arrangement made while
deciding the issue no. III under the clause (a) to (g). Accordingly,
these three issues are being decided in the light of aforesaid
discussion."
2025:JHHC:34929-DB
136. Thus, from the aforesaid paragraphs of the impugned order quoted and
referred hereinabove, it is evident that the learned Family Court has
categorically observed that the petitioner is not entitled to get absolute
custody of children and the instant suit as framed is not maintainable for
the relief claimed and the petitioner has no valid cause of action for it.
The learned Family Court has further held that the petitioner is not
entitled to get the relief claimed however, he is entitled to get the relief of
"shared parenting" in terms of arrangement made while deciding the
issue no. III under the clause (a) to (g).
137. Thus, from the aforesaid it is evident that the Family Court while
negating the claim of the petitioner/husband (respondent herein) has
abruptly ordered the arrangement of "shared parenting" because the
learned Family Court itself observed that petitioner is not entitled to get
the relief claimed but on other hand passed the arrangement of "shared
parenting" without any cogent reason.
138. It is evident from the impugned judgment that the learned Family
Court was fully aware about the strained relationship between the parties
and the factual aspect related to the strained relationship between the
parties has fully been substantiated by the statement of P.W.1 Sulochana
Devi (grand-mother of the children) who herself has stated in her
testimony that five cases is going on between the parties.
139. Further the learned Family Court has observed that petitioner/husband
(respondent herein) has no knowledge about the school fee/fee receipt of
his children. Further as per the pleading of the appellant as pleaded in the
memo of appeal it is evident that the petitioner/husband (respondent
2025:JHHC:34929-DB
herein) has not paid the maintenance amount to his children which was
directed to be paid by the Family Court in the Maintenance case no. 73 of
2019, i.e., Rs. 5000/ to the boy child and Rs. 3000/- to the daughter child
and this fact itself shows that petitioner/husband (respondent herein) has
no serious concern about the well-being of his children.
140. Further it is evident from the impugned order that the learned Family
Court has observed that the petitioner (respondent herein) has opened a
showroom of Apollo Tyre and thus it is quite natural that he would
remain engaged in his business from morning to night. In absence of
petitioner (respondent herein) from his house, a lady will be needed to
look-after the children after their returning from school and further to
assist them in their study also but admittedly the petitioner (respondent
herein) is the only son of his family and thus it is quite natural that after
going of petitioner on his shop, only his old mother and father will
remain available in his house and no other lady will be available to look
after the children.
141. Thus, from the aforesaid it is evident that while passing the
arrangement of "Shared parenting" the learned Family Court has not
taken into consideration of its own finding that the petitioner (respondent
herein) has paucity of time due to his nature of business and even then
has passed order of "shared parenting" which is contrary to its own
finding as quoted and referred hereinabove.
142. It requires to refer herein that high conflict between parents can
negatively impact a child in shared parenting, and courts consider this
risk, prioritizing a child's welfare above all else. The shared parenting
2025:JHHC:34929-DB
may be beneficial but it is not suitable for every family, especially in
cases of extreme conflict which is the case herein. Further It is not
healthy for a child to move between two homes and a stable, anchored
home is the best option in relation to his/her study and other future
prospects.
143. As a US Court of Appeals noted in Braiman v Braiman 44 N.Y.2d
584 (1978): "Joint custody is encouraged primarily as a voluntary
alternative for relatively stable, amicable parents behaving in mature
civilized fashion. As a court-ordered arrangement imposed upon already
embattled and embittered parents, accusing one another of serious vices
and wrongs, it can only enhance familial chaos."
144. In the instant case since relationship between parties are not in right
shape and there are five cases are going on between the parties, as such
there is high-conflict relationship between parents which can lead to
instability, increased anxiety, and poor health outcomes for the child.
Low-quality parental relationships can disrupt a child's routines, even
with a shared parenting plan. One parent might try to force the child to
take sides, a phenomenon known as parental alienation, which is harmful
to the child's relationship with the other parent.
145. It needs to refer herein that as per the ratio laid down by the Hon'ble
Apex Court in the case of Gaurav Nagpal v. Sumedha Nagpal (supra)
while taking a decision regarding custody or other issues pertaining to a
child, welfare of the child is of paramount consideration. It has further
been observed by the Hon'ble Apex Court that it is not the welfare of the
father, nor the welfare of the mother, that is the paramount consideration
for the court. It is the welfare of the minor and of the minor alone which
2025:JHHC:34929-DB
is the paramount consideration. The Hon'ble Apex Court has further
observed that 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 or 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.
146. Further in the case of Gaytri Bajaj v. Jiten Bhalla, (supra) the
Hon'ble Apex Court has categorically 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.
147. There is no denial of the fact that 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" as per the
settled proposition of law which has been settled by the Hon'ble Apex
Court and same has been referred in the preceding paragraph.
148. Thus, on the basis of discussions made hereinabove and also applying
the ratio of the judgment rendered by the Hon'ble Apex Court in the case
of Gaurav Nagpal v. Sumedha Nagpal (supra) and further taking into
consideration the embitted relationship between the parties and welfare of
the children, this Court is of the considered view that the arrangement of
2025:JHHC:34929-DB
"share parenting" as ordered by the learned Principal Judge Family
Court, Deoghar is not sustainable.
149. Accordingly, the relief of "shared parenting" granted to the
respondent husband in terms of arrangement made while deciding the
issue no. (iii) under clause (a) to (g) in the impugned judgment dated
31.01.2023 passed in Original Suit no. 71 of 2021 by the learned
principal Judge Family Court Deoghar, is hereby quashed and set aside.
150. Consequently, the impugned judgment dated 31.01.2023 passed in
Original Suit no. 71 of 2021 by the learned principal Judge Family Court
Deoghar is hereby modified to the extent aforesaid.
151. Further, this court is conscious with the fact that 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, reference in this regard be made to the judgment rendered by the
Hon'ble Apex Court in the case of Yashita Sahu v State of Rajasthan,
(2020) 3 SCC 67.
152. Accordingly, we, hereby, permit the respondent (father) to have the
visitation right to take both the minor children, who is in custody of the
appellant herein (mother), once in every fortnight from 10.00 a.m. to 5.00
p.m. and, thereafter, handover the custody of the children to the appellant
herein. During the summer vacation to the child, the respondent will have
visitation right on every Saturday of the week from 10.00 a.m. to 5.00
p.m. and handover the custody of the children to the appellant herein.
2025:JHHC:34929-DB
153. With the aforesaid directions and observations, the instant appeal
being F.A. No.50 of 2023 stands disposed of.
154. Pending interlocutory applications, if any, also stand disposed of.
(Sujit Narayan Prasad, J.)
I Agree
(Arun Kumar Rai, J.)
(Arun Kumar Rai, J.)
21/11/2025
/
Rohit A.F.R.
Uploaded on 24.11.2025
