[Cites 32, Cited by 0]
Jharkhand High Court
Md. Khalid Pervej vs Md. Shahabuddin on 7 April, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Prasad
[2026:JHHC:9915-DB]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No.155 of 2025
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1. Md. Khalid Pervej, aged about 29 years, son of Md. Kamaluddin,
resident of Village-Telo, Post & Police Station Chandrapura, District
Bokaro (Jharkhand), present Add.-R/o House No.222A, City Colony,
Near Dhanbad City School, By Pass Road, PO + PS Bhulik, Dist,-
Dhanbad.
... ... Appellant/Petitioner
Versus
1. Md. Shahabuddin, aged about 60 years, son of Md. Muslim, resident of
Bose Campus, Azad Nagar, P.O. Bhuli, P.S. Bhuli (O.P.) Bank More,
District-Dhanbad (Jharkhand).
2. General Public of Mohalla/Village Bose Campus, Azad Nagar, P.O.
Bhuli, P.S. Bhuli (O.P.) Bank More, District-Dhanbad (Jharkhand).
... ... Respondents/Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellant : Mr. Mahesh Tewari, Advocate
Mr. Santosh Kumar, Advocate
For the Respondent : Mr. Ranjan Kumar, Advocate
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CAV on 17/03/2026 Pronounced on 07 /04/2026
Per Sujit Narayan Prasad, J.
Prayer
1. The instant appeal has been filed under Section 19(1) of the Family
Courts Act, challenging the legality and propriety of impugned judgment
dated 15.10.2024 and decree signed and sealed dated 25.10.2024 by the
learned Addl. Principal Judge, Additional Family Court No.II, Dhanbad in
Original Suit No.316 of 2021 filed by the petitioner/appellant herein under
Section 25 of the Guardianship and Ward Act, 1890 for grant of
guardianship certificate of his minor daughter, namely, Farhat Naaz, has
been dismissed.
Factual Matrix
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2. The brief facts of the case, as per the petition, which requires to be
enumerated, needs to be referred as under:
3. It is the case of the petitioner-husband (appellant herein) that the
petitioner is the son-in-law of the respondent no-1 and marriage of the
petitioner was solemnized on 23-04-2017 with daughter of the respondent
no-1 namely Farhat Perween. During pregnancy of his wife she was taken
to Dr. S.K. Das for regular check-up at Asharfi Hospital, Dhanbad where
prior to the expected date of delivery she was advised for LSCS and a
female child was born on 12-03-2019 who was named as Farhat Naaz. But
due to the negligence of the doctor the condition of Farhat Naaz got
deteriorated and as a result of which on advice of doctor she was taken to
Medanta Hospital Ranchi and the newly born baby was taken by her Nana-
Nani.
4. It had further been stated that the petitioner is the father of minor girl
namely Farhat Naaza. It had further been stated that during the course of
treatment his wife died on 25-03-2019 at Medanta Hospital, Ranchi. It had
further been stated that after few days of the death of his wife he demanded
custody of his daughter from his father-in-law (respondent no-1) but he
refused to hand over the minor daughter of the petitioner.
5. It is further stated that the minor daughter was residing in her Nana's
house. It is further stated that petitioner is a qualified and capable person to
maintain his minor child and he wants to impart her good education. It is
further stated that the respondent no-1 has no care and love with the
aforesaid minor child and he is an old person and suffering from various
disease and for which he cannot take care properly and impart good
education to his minor daughter. It is further stated that he further
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undertakes that he will take proper care of his minor children in near future
for better livelihood and education etc.
Submission of the learned counsel for the appellant
6. It has been contended on behalf of the appellant 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.
7. It has been submitted by the learned counsel for the appellant that the
learned family court has also failed to consider that the custody of the minor
under Section 16 and under Section 25 of the Guardianship and Wards Act,
1890 does not in any way entitle the maternal grandparents to have the
custody on the ground that the father after re-marrying would lead to
negligence of the child.
8. It has further been submitted that the learned family court has failed to
appreciate that the capacity of a guardian to maintain the minor cannot
solely depend upon the financial resources and it would include the physical
and the moral capacity and the capacity to look after the physical,
psychological and the moral well-being of the minor.
9. Learned counsel for the appellant, 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
10. Per contra, learned counsel appearing for the respondent, while
defending the impugned judgment, has submitted that there is no error in
the impugned judgement. The learned Family Judge has considered all
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aspects of the matter in right perspective and hence, dismissed the suit on
contest.
11. It has been contended that the minor since her birth is residing with the
respondent and the appellant is having no love and affection with the minor
child. It has also been submitted that the petitioner is not financially sound
and the minor is studying in one of the best schools in Pune residing with
her mousa and mousi.
12. It has also been submitted that the appellant has solemnized second
marriage and from their wedlock, there is a child also.
13. Learned counsel, based upon the aforesaid grounds, has submitted that
the impugned judgment cannot be said to suffer from an error.
Analysis:
14. 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.
15. The admitted fact herein is that the petitioner-husband (appellant
herein) that the petitioner is the son-in-law of the respondent no-1 and
marriage of the petitioner was solemnized on 23-04-2017 with daughter of
the respondent no-1 namely Farhat Perween. During pregnancy of his wife
she was taken to Dr. S.K. Das for regular check-up at Asharfi Hospital,
Dhanbad where prior to the expected date of delivery she was advised for
LSCS and a female child was born on 12-03-2019 who was named as Farhat
Naaz. But due to the negligence of the doctor the condition of Farhat Naaz
got deteriorated and as a result of which on advice of doctor she was taken
to Medanta Hospital Ranchi and the newly born baby was taken by her
Nana-Nani. It had further been stated that the petitioner is the father of
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minor girl namely Farhat Naaza. It had further been stated that during the
course of treatment his wife died on 25-03-2019 at Medanta Hospital,
Ranchi. It had further been stated that after few days of the death of his wife
he demanded custody of his daughter from his father-in-law (respondent
no-1) but he refused to hand over the minor daughter of the petitioner. It is
further stated that the minor daughter was residing in her Nana's house. It
is further stated that petitioner is a qualified and capable person to maintain
his minor child and he wants to impart her good education. It is further
stated that the respondent no-1 has no care and love with the aforesaid
minor child and he is an old person and suffering from various disease and
for which he cannot take care properly and impart good education to his
minor daughter. It is further stated that he further undertakes that he will
take proper care to his minor children near future for better livelihood and
education etc.
16. After issuance of process the respondent appeared before the court and
filed show-cause and stated that the present case filed by petitioner is not
maintainable either in law or in facts. The petition filed by the petitioner is
hopelessly barred by law of limitation. It is further stated that after few
months of marriage of the daughter of the respondent namely Farhat
Perween was taken to the work place of the petitioner at Adityapur,
Jamshedpur where Farha Parween was leading a happy married life with
the petitioner. It is further stated that in the meantime she got pregnant and
she was undergoing medical checkup with a lady doctor. On 12-03-2019 he
took his daughter for routine checkup in Asharfi Hospital where she got
admitted and after operation a child was born. It is further stated that after
birth of the child the condition of his daughter got deteriorated and in course
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of treatment, she died on 25-03-2019. It is further stated that after death of
his daughter the petitioner never came to see the minor child namely Farhat
Naaz. The minor daughter namely Farhat Naaz resided for about more than
one year with her Mousi and Mousa. It is further stated that he is competent
enough for maintenance and impart good education to the minor child and
as such the petitioner is not entitled for guardianship of minor child.
17. The evidence has been led on behalf of the parties. The appellant has
examined two witnesses, i.e., P.W.1, namely, Md. Khalid Parvej (the
appellant himself) and P.W.2, father of the petitioner, namely, Md.
Kamaluddin.
18. For ready reference, the evidences led on behalf of the petitioner,
appellant herein, are being referred as under: -
19. P.W.-1 Md. Khalid Parvej, has deposed in her examination-in-chief
that he has filed the case for guardianship of his minor daughter namely
Farhat Naaz against respondent no-1 Md. Sahabuddin. He was married with
the daughter of O.P no-1 namely Farhat Parveen on 30-04-2017. In course
of pregnancy she was taken to hospital and after operation a child was born
namely Farhat Naaz on 12-03-2019 but in course of treatment the mother
of minor daughter died on 25-03-2019 in Medanta Hospital Ranchi.
Thereafter, after some time of the death of the wife of the petitioner he
demanded the custody of the child but OP no-1 has refused the same. In this
regard he had given legal notice also on 15-03-2021 to O.P. no-1 but no any
reply was given on behalf of him. He is natural guardian of minor child
namely Farhat Naaz who is residing with OP no-1. He is an educated person
and he is capable to maintain and impart good education to his daughter.
He is doing job as a supervisor in Tata Steel Ltd and his monthly salary is
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Rs. 30,000/- per month. Respondent no-1 Md. Sahabuddin has no affection
for his minor daughter. He is suffering from various diseases and so he is
unable to look after the minor child.
20. In cross-examination, he has stated that he is presently doing job in
Adityapur Dist. Jamshedpur. After the death of his wife, he had regularly
visited to see his daughter and in this regard, he is having video footage
also. He has no knowledge that his daughter is residing along with her
Mausi in District Pune where she is studying along with the son of her
Mausi. His father-in-law has filed CP case no-1608/21 against him in which
he is on bail. As per instruction of his father-in-law the amount deposited
in the account of his wife was kept in the name of his daughter and his
mother-in-law is nominee in her account. He does not file income-tax
return. After death of his wife, he got married to another lady namely Heena
and out of the said wedlock there is a child also. It is not true that after the
death of his first wife he never came to meet with his minor daughter and
he has no love and affection for the minor child.
21. P.W.-2 is father of the petitioner who has supported the evidence of
P.W.-1 in examination-in-chief. It is true that in the course of the pregnancy,
Farhat Parveen was taken for her regular check-up in Asharfi Hospital
under the treatment of Dr. S.K. Das. It is not true that no one was present in
the hospital on behalf of petitioner when his wife was taken to hospital. He
cannot say the date when the wife of Sahabuddin had taken the custody of
the child. Prior to filing of the case, he has gone several times to the sasural
of his son and demanded the custody of the child. His no any relative resides
in Jamshedpur. He has no knowledge that his son-in-law (Damad) is doing
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job as software engineer in Pune. Sahubuddin is a patient of diabetes. It is
not true that after filing of CP case the suit was filed in counter.
22. The evidences led on behalf of the respondent are being referred as
under: -
23. D.W.-2 is respondent of the case who has stated in examination-in-chief
that after the marriage of his daughter she was taken to Adityapur in
Jamshedpur. In the meantime, she got pregnant and she was undergoing
medical checkup with a lady doctor. But on the 7 th month of pregnancy
petitioner Khalid Parvej took his daughter in his house and she got treated
by Dr. S.K. Das. and on 12-03-2019 he took his daughter for routine
checkup in Asharfi Hospital where she got admitted and after operation a
child was born. But after birth of the child the condition of his daughter got
deteriorated and in course of treatment, she died on 25-03-2019. All the
expenses of treatment were borne by him. After death of his daughter the
petitioner never came to see the minor child namely Farhat Naaz. He has
further stated in his evidence that after death of his daughter he requested
the petitioner to keep the minor child for some days but he did not reply and
he did not take the daughter. His second daughter got married with Md.
Mustaq Alam who is engineer and resides in Pune and there is a son to her
second daughter. The minor daughter namely Farhat Naaz resided for about
more than one year with her Mousi and Mousa and she knows to them as
Mummy-Papa. After death of his daughter, petitioner had taken out the
entire money deposited in the name of his daughter and when he came to
know about the said fact he has filed CP case no-1608/21 which is pending
in the court. He is competent enough for maintenance and impart good
education to the minor child.
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24. In cross-examination, he has stated that her younger daughter Raffat
Parveen with whom the minor daughter resides was residing in Dhanbad
till May 2022 and thereafter, she went to Pune along with the minor child
namely Farhat Naaz. She says mother to Raffat Parveen and father to her
husband. Just after the death of Farhat Parveen her minor daughter namely
Farhat Naaz started living with second daughter of respondent no-1 namely
Raffat Parveen and her husband. He has not made any complaint against his
son-in-law (petitioner) when his daughter was alive. He has no knowledge
that petitioner has invested some money in the name of Farhat Naaz to
secure the future of his daughter. He has not taken any consent with
petitioner to hand over the custody of his minor daughter to his second son
in law and his wife. After the death of his first daughter Farhat Naaz was in
his custody and thereafter he had given the custody to his second daughter
and his husband.
25. D.W.-1 is an independent witness who has supported the evidence of
D.W.-2 in examination-in-chief. In cross he has stated that he does not
reside in the house of Sahabuddin. He resides in his house along with his
wife and children. The house of Sahabuddin is situated at the distance of 1
KM from his house. He put his signature in an agreement executed prior to
marriage. The daughter of petitioner is in custody of Sahabuddin who looks
after her. The wife of petitioner has not filed any case against her in laws.
26. The learned Family Judge has appreciated the entire evidence as well
as the documents exhibited and has formulated altogether five issues which
are as under:
(i) Whether the suit is maintainable in its present form?
(ii) Whether the petitioner has got valid cause of action for the suit?
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(iii) Whether the petitioner is the natural guardian of the Ward?
(iv) Whether the petitioner is entitle for custody of the Ward?
(v) Whether the petitioner is entitled for any other relief?
27. The learned family court, after appreciating the arguments has
dismissed the suit by holding that the petitioner-appellant is not entitled for
grant of guardianship certificate in favour of the minor children.
28. 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.
29. The Hon'ble Apex Court in Arulvelu and Anr. vs. State [Represented
by the Public Prosecutor] and Anr., (2009) 10 SCC 206 while elaborately
discussing the word perverse has held that it is, no doubt, true that if a
finding of fact is arrived at by ignoring or excluding relevant material or by
taking into consideration irrelevant material or if the finding so
outrageously defies logic as to suffer from the vice of irrationality incurring
the blame of being perverse, then, the finding is rendered infirm in law.
Relevant paragraphs, i.e., paras-24, 25, 26 and 27 of the said judgment reads
as under:
"24. The expression "perverse" has been dealt with in a number of
cases. In Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501] this Court
observed that the expression "perverse" means that the findings of the
subordinate authority are not supported by the evidence brought on
record or they are against the law or suffer from the vice of procedural
irregularity.
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
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based on no evidence or that they are so perverse that no reasonable
person would have arrived at those findings.
26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58] the
Court observed that any order made in conscious violation of pleading
and law is a perverse order. In Moffett v. Gough [(1878) 1 LR 1r 331]
the Court observed that a "perverse verdict" may probably be defined
as one that is not only against the weight of evidence but is altogether
against the evidence.
In Godfrey v. Godfrey [106 NW 814] the Court defined "perverse" as
turned the wrong way, not right; distorted from the right; turned away
or deviating from what is right, proper, correct, etc.
27. The expression "perverse" has been defined by various
dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English, 6th
Edn.
"Perverse.--Showing deliberate determination to behave in a way
that most people think is wrong, unacceptable or unreasonable."
2. Longman Dictionary of Contemporary English, International
Edn.
Perverse.--Deliberately departing from what is normal and
reasonable.
3. The New Oxford Dictionary of English, 1998 Edn.
Perverse.--Law (of a verdict) against the weight of evidence or the
direction of the judge on a point of law.
4. The New Lexicon Webster's Dictionary of the English
Language (Deluxe Encyclopedic Edn.)
Perverse.--Purposely deviating from accepted or expected
behavior or opinion; wicked or wayward; stubborn; cross or petulant.
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."
30. 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.
31. The question of legality and propriety of the impugned judgment is the
issue of consideration in the present appeal.
32. This Court before considering the aforesaid rival submission and
propriety of the impugned judgment needs to discuss herein the statutory
provision as provided under the Guardianship and wards Act 1890.
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33. It needs to refer herein that the Section 7, Section 17 and Section 25 of
the Guardianship and wards Act 1890 (hereinafter referred to as the Act of
1890) deals with Power of the Court to make order as to guardianship,
Section 17 thereof deals with Matters to be considered by the Court in
appointing guardian and Section 25 deals with the provision of Title of
guardian to custody of ward. For ready reference, these provisions are
quoted as under:
" 7. Power of the Court to make order as to guardianship.--
(1) where the Court is satisfied that it is for the welfare of a minor that
an order should be made--
(a) appointing a guardian of his person or property, or both, or
(b) declaring a person to be such a guardian, the Court may make an
order accordingly.
(2) An order under this section shall imply the removal of any guardian
who has not been appointed by will or other instrument or appointed or
declared by the Court.
(3) Where a guardian has been appointed by will or other instrument
or appointed or declared by the Court, an order under this section
appointing or declaring another person to be guardian in his stead shall
not be made until the powers of the guardian appointed or declared as
aforesaid have ceased under the provisions of this Act.
17. Matters to be considered by the Court in appointing guardian.--
(1) In appointing or declaring the guardian of a minor, the Court shall,
subject to the provisions of this section, be guided by what, consistently
with the law to which the minor is subject, appears in the circumstances
to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court
shall have regard to the age, sex and religion of the minor, the
character and capacity of the proposed guardian and his nearness of
kin to the minor, the wishes, if any, of a deceased parent, and any
existing or previous relations of the proposed guardian with the minor
or his property.
(3) If the minor is old enough to form an intelligent preference, the
Court may consider that preference.
(5) The Court shall not appoint or declare any person to be a guardian
against his will.
25. Title of guardian to custody of ward.--(1) If a ward leaves or is
removed from the custody of a guardian of his person, the Court, if it is
of opinion that it will be for the welfare of the ward to return to the
custody of his guardian, may make an order for his return, and for the
purpose of enforcing the order may cause the ward to be arrested and
to be delivered into the custody of the guardian. (2) For the purpose of
arresting the ward, the Court may exercise the power conferred on a
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Magistrate of the first class by section 100 of the 2Code of Criminal
Procedure, 1882 (10 of 1882). (3) The residence of a ward against the
will of his guardian with a person who is not his guardian does not of
itself terminate the guardianship."
34. Section 7 of the Guardians and Wards Act, 1890, empowers a Court to
appoint or declare a guardian for a minor's person or property, or both, if
satisfied it's in the minor's welfare, prioritizing the child's best interests
(age, sex, religion, guardian's capacity/kinship, wishes of deceased parents)
over others, and ensuring the child's well-being.
35. Section 17 of the Guardians and Wards Act, 1890, mandates that courts
prioritize the welfare of the minor when appointing a guardian, considering
factors like age, sex, religion, the proposed guardian's character, their
relationship to the minor, while also giving weight to an older minor's
intelligent preference. It guides courts to act consistently with personal laws
but always keep the child's best interest paramount, even over parental
rights.
36. Thus, it is evident from Section 17 of the Act, 1890 that while
appointing any person as guardian 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, if the court is of opinion that his or her guardianship will not be
for the welfare of the minor. Section 17 of the Act of 1890 is very specific
that there cannot be any compromise on the issue of the welfare of the minor
even though the father is natural guardian.
37. Thus, from the aforesaid, it is evident that Provisions of Guardians and
Wards Act, 1890 govern rights of guardians, however they do not bar courts
from exercising parens patriae jurisdiction in determining rights of child
considering its overall development. Purpose and object of Guardians and
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Wards Act, 1890 is not mere physical custody of minor but due protection
of ward's health, maintenance and education. Power and duty of court under
this Act is welfare of minor. Word "welfare" must be taken in its widest
sense, reference in this regard be made to the judgment rendered by the
Hon'ble Apex Court in the case of Sheoli Hati v. Somnath Das, (2019) 7
SCC 490.
38. The law, therefore, is well settled that the paramount consideration in
the matter of handing over the custody of the child is welfare of the child.
39. 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 which reads as under:
"50. [T]hat when the court is confronted with conflicting demands made
by the parents, each time it has to justify the demands. The court has not
only to look at the issue on legalistic basis, in such matters human angles
are relevant for deciding those issues. The court then does not give
emphasis on what the parties say, it has to exercise a jurisdiction which is
aimed at the welfare of the minor. As observed recently in Mausami Moitra
Ganguli case [Mausami Moitra, 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."
40. Thus, the Hon'ble Apex Court has categorically held that while
considering the issue of custody of the minor child the court has to not only
look at the issue on legalistic basis, in such matters human angles are
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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
surroundings but over and above physical comforts, the moral and ethical
values have also to be noted.
41. 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 to protect the child's welfare, even if
it means overriding the wishes of the parents or guardians.
42. 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 surroundings. But over and above physical comforts, moral and
ethical values cannot be ignored. They are equally, or we may say, even
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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.
43. 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."
44. In the case of Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471, the
Hon'ble Apex Court has observed that it is the welfare and interest of the
child and not the rights of the parents which is the determining factor for
deciding the question of custody and the question of welfare of the child
has to be considered in the context of the facts of each case and decided
cases on the issue may not be appropriate to be considered as binding
precedents. For ready reference the relevant paragraph of the aforesaid
judgment is being quoted as under:
"14. From the above it follows that an order of custody of minor
children either under the provisions of the Guardians and Wards Act,
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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."
45. 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.
46. In the case of Shazia Aman Khan v. State of Orissa, (2024) 7 SCC 564,
the Hon'ble Apex Court while referring the ratio of Nil Ratan Kundu v.
Abhijit Kundu, (2008) 9 SCC 413 has observed that welfare of the children
is to be seen and not the rights of the parties, the relevant paragraph of the
aforesaid judgment is being quoted as under:
"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
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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)
"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."
47. Thus, from the aforesaid settled position of law it is evident that the
consideration governing the custody of children is the "welfare of the
children and not the rights of the parties." Further, the welfare of child is
determined neither by economic affluence nor a deep mental or emotional
concern for the well-being of the child. The answer depends on the
balancing of all these factors and determining what is best for child's total
well-being.
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48. 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 the well-being/welfare of the minor child is to
be taken into consideration as per Act 1890 wherein the welfare of the
minor has statutorily been provided of the paramount consideration.
49. 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 assess as
to the whether the findings so recorded by the learned Family Judge, can be
said to suffer from an error.
50. On scrutiny and appreciation of the evidence of the petitioner/appellant
and his other witnesses, it is apparent that admittedly the marriage between
petitioner and daughter of respondent no.1 was solemnized and from the
said wedlock one girl child was born on 12.03.2019 and due to some
complications at the time of birth of child the daughter of respondent no.1
died on 25.03.2019.
51. It has come in the testimony of the witnesses that on the request of
appellant and his father, respondent took the minor child in his house, where
she was cared and maintained by him and another daughter and other family
members. The appellant after two years of birth of said minor child has
preferred the suit before the learned Family under Section 25 of Act 1890.
52. It appears from the impugned judgment that respondent no-1 has filed
CP case no-1608/21 against the appellant u/s 406 & 420 of IPC wherein it
has been alleged that appellant got signature of Farhat Parveen (daughter of
respondent no.1) in blank cheque and transferred a sum of Rs.3.50 lakh
from the account of deceased daughter without intimating the respondent
no-1.
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53. It has come in the evidence of respondent that presently the minor
daughter of the appellant is residing in Pune along with her Mousi where
she is studying in an International School and respondent has paid annual
fee Rs. 94,000/-. Respondent is also bearing all other expenditures for
education such as tuition fee, bus fee, books etc. and in this regard he has
filed receipt which substantiates the facts that respondent no-1 is bearing all
the expenditures of minor child and minor child is being properly cared by
her Mousi when she knows as her mother since her childhood, in the
guardianship of respondent no-1 and other family members.
54. Further, it is evident from the evidence of petitioner/appellant that he
has married another lady and out of the second wedlock there is a child and
in such situation, if custody of child is handed over to appellant, there is
probability that she may face problem to adjust with her step mother in new
environment as because the minor daughter is residing with the respondent
and his family members since her birth.
55. It requires to refer herein the settled proposition of law as discussed and
referred in the preceding paragraphs that welfare of the minor child is the
paramount consideration. The court while deciding the child custody cases
is not bound by the mere legal right of the parent or guardian, though the
provisions of the special statutes govern the rights of the parents or
guardians, but the welfare of the minor is the supreme consideration in cases
concerning custody of the minor child. The paramount consideration for the
court ought to be child interest and welfare of the child.
56. The term "welfare" has the broadest amplitude. It is to be understood in
its broadest sense so as to cover in material and physical well being,
education, health, happiness and moral welfare of the child. What constitute
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welfare of the minor has to be determined by the court after a careful
consideration of the facts and circumstances of the case, as the Act 1890
does not lay down any tests or guidelines to determine what is for the
welfare of the minor. But the paramount consideration is the welfare of the
minor.
57. Herein the minor child is 7 years of age and since her birth she has been
residing with the respondent no.1 and her mausi (sister of her mother) and
further in such a tender age of 7 years, it cannot be expected that she has
intelligible differentia to decide what is good or bad for her.
58. Further it is admitted that petitioner/appellant had already solemnized
his second marriage and from the said marriage he has one child also.
Therefore, there is probability that the minor girl child may face problem to
adjust with her step mother in new environment as because the minor
daughter is residing with the respondent and his family members since her
birth.
59. Thus, as per evidence and other materials available on record and
keeping in view the settled proposition of law as settled by the Hon'ble
Apex Court which has been discussed in the preceding paragraphs this
Court is of the considered view that it would not be in the interest and well-
being of the minor child to disturb her custody from that surroundings.
60. Thus, on the basis of discussions made hereinabove and also applying
the ratio of the judgment rendered by the Hon'ble Apex Court referred
hereinabove in the preceding paragraphs and also taking into consideration
the order dated 15.10.2024 passed in Original Suit No. 316 of 2021 wherein
the said suit has been dismissed by the learned Family Court by observing
and holding that the appellant has got no valid cause of action to file the
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suit and the appellant is not entitled to get the relief as claimed for and
accordingly, the appellant has been held not entitled for grant of
guardianship certificate in favour of the minor child. Further, taking into
consideration the welfare of the children as paramount consideration, this
Court is of the considered view that the learned Family Court has rightly
denied the custody of the minor child, namely, Farhat Naaz to his
father/appellant herein, therefore, the said finding of the learned Family
Court requires no interference by this Court.
61. Accordingly, the instant appeal fails and stands dismissed.
62. Pending interlocutory applications, if any, also stand disposed of.
(Sujit Narayan Prasad, J.)
I Agree,
(Sanjay Prasad, J.) (Sanjay Prasad, J.)
07th April, 2026
/
Saurabh A.F.R.
Uploaded on - 08.04.2026
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