[Cites 14, Cited by 0]
Jharkhand High Court
Joydeep Chakraborty vs Payal Banerjee on 20 January, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No.189 of 2024
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1. Joydeep Chakraborty, aged about 42 years, Son of Biman Bihari
Chakraborty, Resident of Kalptaru Complex, 2nd floor, Upen Babu
Street, Ward No.2, Munsifdanga, P.O. & P.S.-Purulia, Dist.-Purulia,
West Bengal (723101)
... ... Appellant/Applicant
Versus
Payal Banerjee, aged about 35 years, Daughter of Shiba Prasad
Banerjee, Resident of New Riverbase Colony, Anil Surpath, P.O. &
P.S.-Kadma, Town-Jamshedpur, District-East Singhbhum, Jharkhand,
Pin No.-831005
... ... Respondent/Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellant : Mr. Ashutosh Ranjan Kumar, Advocate
For the Respondent : Mr. Mukesh Kumar Dubey, Advocate
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CAV on 20/12/2025 Pronounced on 20/01/2026
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 07.06.2024 and decree signed and sealed dated 13.06.2024 by the
learned Addl. Principal Judge, Family Court-II, East Singhbhum at
Jamshedpur in Original Suit No.210 of 2023 filed by the
petitioner/appellant herein under Section 7 and 17 read with Section 25 of
the Guardianship and Ward Act, 1890 for custody and visitation rights of
his minor son Aalap Chakraborty, has been dismissed.
Factual Matrix
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2. The brief facts of the case, as per the petition, which required to be
enumerated, needs to be referred as under:
3. It is the case of the petitioner-husband (appellant herein) that the
marriage of the petitioner and respondent-wife (respondent herein) was
solemnized as per the Special Marriage Act on 03.02.2016 at Purulia West
Bengal. From the happy wedlock, a son, namely, Master Aalap
Chakraborty was born on 11.11.2017. The differences arose between the
parties and they amicably decided to resolve their dispute by filing a
petition under Section 28 of the Special Marriage Act.
4. The marriage was eventually dissolved, vide judgment dated
01.10.2021 passed by the Court of Principal Judge, Family Court,
Jamshedpur in Original Suit No. 486 of 2021 and a decree was drawn
accordingly.
5. However, the petitioner being the biological father of the issue born
from the said wedlock sought intervention of the Court for allowing him
to visit and take custody of the minor son Aalap Chakraborty. The
petitioner has been trying to communicate with the respondent and her
family members but they have been incommunicado and therefore, having
failed to take the custody or even visit his minor son, the petitioner has no
remedy accordingly preferred the suit for custody and visitation right of
his son.
6. It has further been stated that the petitioner having failed to even
speak to the respondent, served the respondent with a legal notice dated
04.01.2023, wherein, the petitioner also demanded that the minor son may
be allowed to at least meet the petitioner. The respondent, thereafter,
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replied to the said legal notice through her lawyer refusing to let the
petitioner to meet his minor son.
7. It has been stated that the petitioner had first contacted the respondent
in December 2021 after the grant of divorce to allow him to meet his
minor son. The cause of action further arose on 16.01.2023 when the
respondent in reply to the legal notice categorically denied the visitation
rights of the petitioner to meet his minor son.
8. Accordingly, prayer had been made before the learned Family Court
to allow the suit and grant the petitioner (appellant herein) to enjoy
visitation rights towards his minor son, Aalap Chakraborty and/or to allow
the minor son of the parties to travel to the house of the petitioner in
Purulia during his vacations and/or allow the petitioner to meet his minor
son until the final disposal of the present case and/or allow the petitioner
to meet his minor son twice every month and also allow him to stay with
his son for 2 days once every 15 days and pass any other order.
9. To secure the appearance of the respondent-wife, the notice was
issued through post and notice was also published in the newspaper but as
the respondent-wife did not appear in spite of service of notice,
accordingly suit was proceeded ex-parte vide order dated 14.12.2023 and
the case was fixed for ex-parte evidence.
10. The petitioner, appellant herein adduced ex-parte evidence on his part
and the evidence was closed on 16.03.2024.
11. The petitioner in order to establish his case has examined himself as
P.W.1 and his father Biman Bihari Chakraborty as P.W.2.
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12. True copy of Birth Certificate of Aalap Chakraborty is marked as
Exhibit-1, copy of certified copy of judgment passed in O.S. No.486 of
2021 is marked as Exhibit-2, copy of certified copy of decree in O.S.
No.486 of 2021 is marked as Exhibit-2, copy of legal notice dated
04.01.2023 and its postal receipt are marked as exhibit-4 and 5
respectively. The copy of reply dated 16.01.2023 of the respondent to the
said legal notice of the petitioner is marked as exhibit-6.
13. After perusal of the evidence led by the petitioner, the learned Family
Judge, vide order dated 07.06.2024 has dismissed the suit (decree signed
and sealed on 13.06.2024), denying the custody and any visitation right of
his son, against which, the present appeal has been preferred by the
petitioner/appellant-husband.
Submission of the learned counsel for the appellant-husband
14. 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.
15. It has been submitted by the learned counsel for the appellant-
husband that he is the biological father of his minor son and has every
right to visit him and take his custody.
16. It has also been submitted that he served a legal notice upon the
respondent no.04.01.2023 for allowing him to meet his minor son but she
has refused his request.
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17. It has been contended that the appellant-husband has established his
case by way of evidence which he has adduced.
18. It has been contended that the appellant-husband may be allowed to
meet his son every month and allow him to stay with his son for two days
every 15 days.
19. It has further been contended that the father being the natural guardian
of minor child has preferential right to claim custody but the said fact has
not been considered by the learned Family Court.
20. 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
21. 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.
22. It has been contended that the petitioner-husband has sent the notice to
the respondent-wife with motivated intention in utter violation of specific
order passed on 01.10.2021 in Original Matrimonial Suit No.486 of 2021.
23. It has further been contended that the marriage between them has been
dissolved by the mutual consent under Section 28 of the Special Marriage
Act. Further, as per the condition as agreed between the parties for taking
mutual divorce, as per the judgment, the minor son Aalap Chakraborty
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will live with his mother and there is no such condition that his father who
is the petitioner-husband in this case will have any visitation right of his
son and will claim custody over his son.
24. It has been submitted that the petitioner-husband (appellant herein) is
working in Bangalore as software engineer and staying alone so there is
no other member to look after the minor child from morning to evening.
Further, the respondent-wife is economically and financially sound to
maintain her son, give him good education and provide him with all
necessities of life.
25. It has also been contended that the appellant-husband has not brought
any materials to show that what has been done by him for welfare of his
minor child, namely, Aalap Chakraborty and he is not giving any
maintenance amount to her or his minor son or for educational expenses
of his minor son.
26. Learned counsel, based upon the aforesaid grounds, has submitted that
the impugned judgment cannot be said to suffer from an error.
Analysis:
27. 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.
28. The admitted fact herein is that the marriage of the petitioner
(appellant herein) and respondent-wife (respondent herein) was
solemnized as per the Special Marriage Act on 03.02.2016 at Purulia West
Bengal. From the happy wedlock a son, namely, Master Aalap
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Chakraborty was born on 11.11.2017. The differences arose between the
parties and they amicably decided to resolve their dispute by filing a
petition under section 28 of the Special Marriage Act.
29. It is further admitted fact that the marriage was eventually dissolved
on mutual consent of the parties vide judgment dated 01.10.2021 passed
by the Court of Principal Judge, Family Court, Jamshedpur in Original
Suit No. 486 of 2021 and a decree was drawn accordingly wherein parties
had mutually agreed that their son namely Aalap Chakraborty will live
with his mother and parties will not file any case against each other.
30. However, the petitioner being the biological father of the issue born
from the said wedlock sought intervention of the learned Family Court for
allowing him to visit and take custody of the minor son Aalap
Chakraborty.
31. Accordingly, by filing the said suit it has been prayed therein to allow
the petitioner to enjoy visitation rights towards his minor son, Aalap
Chakraborty and/or to allow the minor son of the parties to travel to the
house of the petitioner in Purulia during his vacations and/or allow the
petitioner to meet his minor son until the final disposal of the present case
and/or allow the petitioner to meet his minor son twice every month and
also allow him to stay with his son for 2 days once every 15 days and pass
any other order.
32. The evidence has been led on behalf of the petitioner, i.e., the
appellant-husband.
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33. The appellant-husband has examined two witnesses, i.e., P.W.1,
namely, Joydeep Chakraborty (the appellant himself) and P.W.2, father of
the petitioner, appellant herein.
34. For ready reference, the evidences led on behalf of the petitioner,
appellant herein, are being referred as under: -
P.W.-1 Joydeep Chakraborty, has deposed in her examination-
in-chief that that his marriage with the respondent was solemnized as per
the Special Marriage Act on 03.02.2016 at Purulia West Bengal. From
the wedlock, a son, namely, Master Aalap Chakraborty was born on
11.11.2017 at T.M.H., Jamshedpur. Thereafter, the differences arose
between the parties, so they, amicably decided to resolve their dispute by
filing a petition under section 28 of the Special Marriage Act. The
marriage was eventually dissolved vide judgment dated 01.10.2021
passed by the Court of Principal Judge, Family Court, Jamshedpur in
Original Suit No. 486 of 2021 and a decree was drawn accordingly.
However, the petitioner being the biological father of the issue born from
the said wedlock is now seeking the intervention of the Court for
allowing him to visit and take custody of the minor son, Aalap
Chakraborty who is currently aged around 6 years. The petitioner has
been trying to communicate with the respondent and her family members
but they have been incommunicado and therefore having failed to take
the custody or even visit his minor son. The petitioner has also been
deprived of his rights as father of the minor son. The petitioner has the
right to meet his son and also have custody of his son. The petitioner
having failed to even speak to the respondent, served the respondent with
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a legal notice dated 04.01.2023 wherein the petitioner demanded that the
minor son may be allowed to at least meet the petitioner.
The respondent, thereafter, replied to the said legal notice
through her lawyer refusing to let the petitioner meet his minor son. The
petitioner has realized that the said issue cannot be resolved amicably and
the respondent deliberately does not want the petitioner to meet his minor
son which is sine qua non under the law and the petitioner, being the
biological father of the minor son, cannot be stopped or barred from
meeting him in any manner whatsoever. The petitioner has been denied
of his rights to meet his son and therefore, the petitioner seeks the
indulgence of the Court to allow him to meet his son. The petitioner first
contacted the respondent in December 2021 after the grant of divorce to
allow him to meet his minor son. The cause of action further arose on
16.01.2023 when the respondent in reply to the legal notice categorically
denied the visitation rights of the petitioner to meet his minor son. The
summons was duly sent to the respondent through both Speed Post as
well as Nazarat, on their registered address, both of these were not
accepted by the respondent. Further having no resort left the petitioner
sought permission for newspaper publication to make the respondent
aware of this matter so that she could make her appearance. The
newspaper publication was conducted on 22.09.2023 in the newspaper
'Dainik Bhaskar'.
He has further deposed that he has filed the case for taking custody
of his son and for getting visitation rights of his son. Presently the child is
of 6 years and 4 months and is in custody of his mother. He is a Software
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Engineer in Bangalore and staying there. He is having his own house at
Purulia where his parents are staying. Payal Banerjee, the respondent-
wife used to work as Medical Representative but he does not know that
what she is presently doing. He is not paying any maintenance allowance
to his ex-wife and child. The son is studying in school in Jamshedpur but
he cannot tell in which school the child is studying.
P.W.2, father of the petitioner/appellant has deposed in his
examination-in-chief that he is well acquainted with the facts of the
present suit. Further, he has stated that the marriage between his
petitioner(son) and the respondent was solemnized as per the Special
Marriage Act on 03.02.2016 at Purulia, West Bengal. Out of their
wedlock, a son, namely, Master Aalap Chakraborty was born on
11.11.2017 at Tata Main Hospital, Jamshedpur. As differences arose
between the parties, so they amicably decided to resolve their dispute by
filing a petition under Section 28 of the Special Marriage Act. The
marriage was eventually dissolved, vide judgment dated 01.10.2021
passed by the Court of Principal Judge, Family Court, Jamshedpur in
Original Suit No. 486 of 2021 and a decree was drawn accordingly.
However, his son being the biological father of the issue born from the
said wedlock to the respondent, is now seeking the intervention of the
court for allowing him to visit and take custody of the minor son Aalap
Chakraborty who is currently aged about 7 years. The petitioner has been
trying to communicate with the respondent and her family members but
they have been incommunicado and therefore, having failed to take the
custody or even visit his minor son, i.e, with his grandson Aalap
Chakraborty. The petitioner has also been denied to visit his minor son
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and his son (petitioner) has been deprived of his rights as father of the
minor son Aalap Chakraborty. The petitioner has the right to meet his son
and also have custody of his son. The petitioner having failed to even
speak to the respondent, served the respondent with a legal notice dated
04.01.2023, wherein, the petitioner demanded that the minor son may be
allowed to at least meet the petitioner.
The respondent thereafter replied to the said legal notice refusing to
let the petitioner meet his minor son, vide reply dated 16.01.2023. The
petitioner has realized that the said issue cannot be resolved amicably and
that the respondent deliberately does not want the petitioner to meet his
minor son which is sine qua non under law and that, the petitioner being
the biological father of the minor son, cannot be stopped or barred from
meeting him in any manner whatsoever. The petitioner has been denied
of his rights to meet his son and therefore, the petitioner seeks the
indulgence of the court to allow him to meet his son. The claim of the
petitioner is perfect and genuine.
He has further deposed that his son has filed the case for getting
custody of his son and for getting visitation rights of his son.
35. The learned Family Judge has appreciated the entire evidence as well as
the documents exhibited and after formulating the specific issue 'whether
the petitioner is entitled to get the custody and visitation rights of his
minor son', has dismissed the suit filed by the husband, which is under
challenge in the instant appeal.
36.This Court, while appreciating the argument advanced on behalf of the
appellant on the issue of perversity needs to refer herein the interpretation
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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.
37.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 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.
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"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."
38. 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.
39. The question of legality and propriety of the impugned judgment is the
issue of consideration in the present appeal.
40.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.
41. 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:
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" 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
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."
42. 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.
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43. 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.
44. 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.
45. 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 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.
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46. 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.
47. 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."
48. 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.
49. 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 to protect the child's welfare, even
if it means overriding the wishes of the parents or guardians.
50. 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
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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.
51. 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."
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52. 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, 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."
53. 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.
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54. 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 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)
20
2026:JHHC:1472-DB
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."
55. 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.
56. 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.
57. 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.
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58. On scrutiny and appreciation of the evidence of the
petitioner/appellant and his other witnesses, it is apparent that admittedly,
the petitioner and respondent got married as per Special Marriage Act on
03.02.2016 in Purulia and on 11.11.2017 one son, namely, Aalap
Chakraborty was born out of their wedlock and thereafter, the petitioner and
the respondent has taken mutual divorce by filing a case bearing Original
Suit No.486/2021 U/s 28 of the Special Marriage Act.
59. It is evident that the appellant-husband has sought custody and
visitation right of children before the learned Family Court.
60. The petitioner/appellant and his witness (P.W.2, father of the
petitioner/appellant) has also corroborated the averments in their evidence
that the petitioner has been trying to communicate with the petitioner and her
family members for meeting his son and taking his custody but they have not
responded, so the petitioner has been denied the visitation right and has also
been deprived of his right as a father of his minor son Aalap Chakraborty. It
has further been stated that petitioner had even sent legal notice to his wife
requesting her to allow him to meet his son and to have his custody but the
same has been denied.
61. It is evident from record that petitioner/appellant herein has sought
custody and visitation right of his minor child.
62. From perusal of the judgment dated 01.10.2021 passed in Original
Suit No. 486/2021 appended as annexure-1 to the memo of appeal, it appears
that marriage of the parties of the present appeal has already been dissolved
by mutual consent under Section 28 of the Special Mariage Act and further,
as per the condition as agreed between the parties for taking mutual divorce
22
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as mentioned in the judgment, the minor son Aalap Chakraborty will live
with his mother and there is no such condition that his father who is the
petitioner in this case will have any custody/visitation right of his son and it
is also an agreed condition that the parties will not file any case against each
other. For ready reference, the relevant paragraph of the order/judgment
dated 01.10.2021 is being quoted herein, which reads as under:
"In the inquiry, I find that the first motion for divorce was moved on
08.09.2021 till then they had completed separation more than three
years and they have reiterated their stand of mutual consent on
01.10.2021. I also find that there is a least chance of collusion in the
following circumstances
1. They have been living separately for a period of more than three
years or more immediately preceding the presentation of the petition.
2. They have not been able to live together. Petitioners have agreed
that they are blessed with a son namely Aalap Chakraborty, who will
live with his mother.
3. Petitioners have stated that they have mutually exchanged their
respective gifts and articles lying with each other and have got no
claim against each other on the said account.
4. Petitioner no. 1 has stated that she will not make any claim against
petitioner no. 2 on any account including his property as she is
working in Tata ELXXI. Petitioners have also stated that they will not
file any case against each other. Petitioner no. 2 is Software Engineer,
working in Pune.
5. They have mutually agreed that the marriage should be dissolved
and still they have reiterated their stand of mutual consent.
6. Reconciliation at every level failed between the parties for their
reunion.
ORDER
That the suit be and the same is decreed on mutual consent of both the
petitioners and the marriage solemnized on 03.02.2016 between
petitioners name Smt. Payal Banerjee and Joydeep Chakraborty, u/s
28 of the Special Marriage Act, is hereby dissolved. Minor son namely
Aalap Chakrabory will live with his mother. Let a decree be prepared
i.e. accordingly. The divorce will take effect from the date petitioner
no. of decree."
63. Thus, it is evident from the aforesaid order that the suit before the
learned Family Court has been filed in violation of condition as stipulated in
the order/judgment dated 01.10.2021 passed in Original Suit No. 486 of
2021(annexure-1) wherein both the parties were mutually agreed upon the
condition that the minor son Aalap Chakraborty will live with his
mother(respondent herein) and the parties will not file any case against each
other.
2026:JHHC:1472-DB
64. 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 7,
Section 17 and Section 25 of the Act, 1890 and turned down the claim of
custody of the petitioner (husband).
65. The learned Family Court while adhering the principle of the welfare
of child as paramount consideration in the custody matter has observed that
petitioner (appellant herein) is working in Bangalore as software engineer
and staying alone, so there is no other member to look after the minor child
as from morning to evening the petitioner will be in his office and his
parents are staying in Purulia and they also must be old. Further admittedly,
the respondent was a working as Medical Representative and she has been
working in Tata ELXSI, so certainly respondent/mother must be having
sufficient income to maintain herself and her minor son and further
admittedly, he has relinquished his visitation right of his son and to seek his
custody in the Original Suit No.486/2021.
66. Thus, from the aforesaid, it is evident that the learned Family Court
has categorically observed that the petitioner, appellant herein is not entitled
to get custody or visitation right his minor child particularly in view of the
order dated 01.10.2021 passed in Original Suit No. 486 of 2021 on the basis
of the mutual consent of both the parties, wherein, it has been amicably
resolved by the parties that the minor son Aalap Chakraborty will live with
his mother (respondent herein), and accordingly denied the custody and
visitation right to the petitioner (appellant herein).
2026:JHHC:1472-DB
67. 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 01.10.2021 passed in Original Suit No. 486 of 2021 which
has been passed on the basis of the mutual consent of both the parties,
wherein, it has been amicably resolved by the parties that the minor son,
namely, Aalap Chakraborty will live with his mother (respondent herein) and
further, the parties will not file any case against each other and 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 and visitation right of minor son, namely, Aalap
Chakraborty to his father/appellant herein, therefore, the said finding of the
learned Family Court requires no interference by this Court.
68. Accordingly, the instant appeal fails and stands dismissed.
69. Pending interlocutory applications, if any, also stand disposed of.
(Sujit Narayan Prasad, J.)
I Agree
(Arun Kumar Rai, J.)
(Arun Kumar Rai, J.)
20/01/2026
/
Rohit A.F.R.
Uploaded on 21.01.2026
