Madhya Pradesh High Court
Shivam @ Shiv Narayan ... vs Balram on 28 April, 2023
Author: Sheel Nagu
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JA BALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 28th OF APRIL, 2023
MISC. APPEAL No. 587 of 2018
BETWEEN:-
SHIVAM @ SHIV NARAYAN
VISHWAKARMAM S/O RADHESHYAM,
AGED ABOUT 37 YEARS, OCCUPATION
ELECTRICIAN, R/O RAHATAKALATEHSIL
SIRALI, DISTRICT HARDA (MADHYA
PRADESH)
.......APPELLANT
(BY SHRI L.N. SAKLE, ADVOCATE)
AND
BALRAM S/O DEVRAM CHAND
VISHWAKARMA AGED ABOUT 50 YEARS,
R/O EARODRUM ROAD INFRONT OF
VIDYUT MANDAL NEAR SAINI TOLA GALI
NO.1 HOUSE NO. 6, BAPU MURAI
MOHALLA INDORE P.S EARODRUM,
DISTRICT INDORE (MADHYA PRADESH)
..........RESPONDENT
(BY SHRI SHIVENDRA SHUKLA, ADVOCATE)
....................................................................................................................
This appeal coming on for admission this day, JUSTICE DWARKA
DHISH BANSAL passed the following:
ORDER
This miscellaneous appeal is filed by appellant/applicant/father
challenging the order dated 12/12/2017 passed by Principal Judge, Family
Court, Harda in Guardian and Wards Case No.01/2017, whereby application
under Section 7 of the Guardian and Wards Act, 1890 filed on 03.02.2017 by
appellant-Shivam for custody of his son - Om @ Bittu Vishwakarma (from first
wife), aged 10 years, is dismissed.
2. It is alleged in the application that respondent-Balram is father of
appellant's first wife Ranjana and has kept his son-Om @ Bittu in illegal
custody, whereas the appellant is father and natural guardian of his minor son -
Om born on 02.07.2007. Wife of appellant, Smt. Ranjana, after solemnization
of marriage on 15.05.2003 at Indore, resided with the appellant but after
sometime pressurized him to live at Indore and went there and despite so many
requests, she did not come back. It is alleged that upon filing application under
Section 9 of the Hindu Marriage Act by the appellant, she did not appear and
ultimately on 25/07/2011 decree of restitution of conjugal rights was passed by
learned Court, thereafter, the appellant filed petition for divorce, in which also
she did not appear and ex-parte judgment and decree of divorce was passed on
02/03/2012 (Ex.P/1 & P/2). Thereafter, the wife Smt. Ranjana got remarried on
10.10.2012 to Premchand S/o Chhotelal Vishwakarma of Tahsil Sanawat,
District West Nimad and is residing with her second husband after handing
over the minor child/son- Om to her father-Balram. Accordingly, the
application was filed for custody of the minor son-Om @ Bittu from the
custody of maternal grand-father (Nana).
3. The respondent- Balram appeared and filed reply denying the allegations
made in the application and contended that the appellant had just performed
marriage with the daughter of respondent and even after birth of child-Om, he
did not take care of his wife-Ranjana and minor son-Om. The respondent being
Nana is taking care of the minor Om @ Bittu and the appellant is not in a
position even to maintain him, who has also got the decree of divorce passed
misleading the Court. It is also contended that from the second wife, the
appellant has two children. On inter alia contentions, the application was
prayed to be dismissed.
4. On the basis of pleadings of the parties, learned trial Court framed issues
and recorded evidence. The appellant- Shivam examined himself as PW/1 and
his father Radheshyam (PW/2). In rebuttal the respondent- Balram examined
himself as DW/1 and his daughter Smt. Ranjana (DW/2). Upon due
consideration of the same, learned Court held that although the appellant
Shivam @ Shiv Narayan is natural guardian of minor child-Om @ Bittu but is
not entitled for his custody and accordingly dismissed the application vide its
impugned judgment and order dated 12/12/2017.
5. Learned counsel for the appellant submits that the appellant being father,
is natural guardian and is entitled for custody of his son- Om @ Bittu. Without
any reasonable cause appellant's wife left the matrimonial house and started
residing separately at Indore, resultantly, the appellant filed application under
Section 9 of the Hindu Marriage Act for restitution of conjugal rights but she
did not return, which constrained the appellant to file the petition for divorce
under Section 13 of the Hindu Marriage Act, which was also allowed on
02/03/2012. Thereafter, she has solemnized second marriage with one
Premchand and handed over custody of minor child to her father i.e. the
respondent, who is not taking care of appellant's son. As such he prays for
allowing the miscellaneous appeal.
6. Learned counsel for the respondent supports the impugned order and
prays for dismissal of the appeal.
7. Heard learned counsel for the parties and perused the record.
8. Upon consideration of the statement of appellant- Shivam (PW/1),
learned Court below has found that the appellant has also performed second
marriage and there are two children from their wedlock and he has never taken
care of his minor son-Om. Admittedly, he is also not aware of the fact as to in
which school his son Om is studying. It has come on record that one case of
maintenance is pending at Indore but the appellant has not put in appearance in
that case, so far.
9. Upon perusal of the record especially the application for custody of child
and the appellant's affidavit of chief examination under Order 18 Rule 4 CPC,
it is clear that the appellant himself has not disclosed the factum of his second
marriage and two children from it but the same has come in paragraph 13 of his
cross examination, which shows that he has not approached to the Court with
clean hands. However in paragraph 6 of chief examination, he has stated that he
is an electrician and in paragraph 23 of his cross examination, he has admitted
that at present he does not possess any land.
10. The learned Court below has also taken into consideration the evidence
of respondent Balram (DW/1), who being Nana is taking care of the minor Om.
The documents (Ex.D/1 to Ex.D/40) show that the minor is studying as a
regular student of Class-IV in Chandan Shri Public School, Indore.
11. Upon consideration the aforesaid, learned Court below has come to
conclusion that just with a view to avoid appearance in the maintenance case,
the appellant has filed the present application for custody of son- Om and infact
he has never taken care of minor son Om, whereas the respondent being
grandfather (Nana) is taking his care well, who is also having sufficient income
to maintain the minor and there is no adverse material available on record to
hold that if the minor resides with the respondent, his welfare would be in
jeopardize.
12. In case of dispute about custody of minor child, it is well settled that
paramount consideration is welfare of child. In the case of Soumitra Kumar
Nahar Vs. Parul Nahar (2020)7 SCC 599 (Para31-32), the Supreme Court has
held as under:-
"31. It is undisputed that the rights of the child need to be respected as
he/she is entitled to the love of both the parents. Even if there is a
breakdown of marriage, it does not signify the end of parental
responsibility. It is the child who suffers the most in a matrimonial
dispute.
32. It is also well settled by the catena of judgments of this Court that
while deciding the matters of custody of the child, primary and
paramount consideration is always the welfare of the child. If the welfare
of the child so demands, then technical objections cannot come in the
way. However, while deciding the welfare of the child, it is not the view
of one spouse alone which has to be taken into consideration. The Courts
should decide the issue of custody on a paramount consideration which
is in the best interest of the child who is the victim in the custody battle."
13. In view of the aforesaid discussion, no illegality appears to have been
committed by learned Court below in dismissing the application for custody of
child filed by appellant-Shivam @ Shivnaraya. Resultantly, the miscellaneous
appeal fails and is hereby dismissed.
14. Interim application(s), if any, shall stand dismissed.
(SHEEL NAGU) (DWARKA DHISH BANSAL)
JUDGE JUDGE
RS
RASHMI Digitally signed by RASHMI RONALD
VICTOR
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RONALD VICTOR
Date: 2023.05.04 11:08:55 +05'30'
