Madhya Pradesh High Court
Anand Kalore vs Smt.Amrata Kalore on 2 May, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 2 nd OF MAY, 2024
MISC. APPEAL No. 1830 of 2013
BETWEEN:-
ANAND KALORE S/O SHRI CHANDRASHEKHARJI
KALORE, AGED ABOUT 36 YEARS, OCCUPATION:
SERVICE 16 VANDANA NAGAR INDORE (MADHYA
PRADESH)
.....APPELLANT
(SHRI M.A. MANSOORI ALONGWITH SHRI JITENDRA VERMA AND SHRI
SAPNESH H. JAIN- ADVOCATE)
AND
SMT.AMRATA KALORE W/O SHRI ANAND KALORE,
AGED ABOUT 33 YEARS, OCCUPATION: SERVICE AND
BUSINESS 115 MANBHAWAN NAGAR INDORE/VIMAL
SHRI SAHASHTRA BUILDING 14 TELEPHONE NAGAR
(MADHYA PRADESH)
.....RESPONDENT
(SHRI PRATEEK MAHESHWARI- ADVOCATE)
This appeal coming on for hearing this day, Justice Gajendra Singh
passed the following:
ORDER
This appeal under Section 47 of the Guardianship and Wards Act,1890 has
been preferred challenging the order dated 27.07.2013 in guardian case
No.73/2012 passed by First Additional Judge, Family Court, Indore whereby the
application under Section 25 of the Act preferred on behalf of the appellant/father
for the custody of his son has been rejected.
2 . Facts in brief are that appellant and respondent were married on
19.04.2007 at Indore and on 24.01.2008 his minor child Anushk took birth to the
spouse who is residing with his mother at 115 Manbhawan Nagar, Indore. After
the marriage couple was residing at 16 Vandana Nagar, Indore at ancestral house
o f appellant/husband. But respondent/wife was not willing to reside jointly with
the family members of the appellant/husband and appellant/husband was bound to
reside at 115 Manbhawan Nagar, Indore at rental house.
3. Respondent/wife firstly, established her office at Kothari Market, Indore
for her finance company in the name of Shri Krishna Financial Services and
thereafter, she was engaged in the business of real estate in the name of Anushk
Real Estate through office situated at Shri Vardhan Complex, R.N.T Marg,
Indore. Respondent/wife also engaged in Richfield Infra Red Build Pvt. Ltd. to
accomplish her business of real estate and was engaged in her profession day and
night and was neglecting minor child Anushk.
4. The respondent/wife did not allow the relatives of appellant/husband to
look after son Anushk and minor Anushk was handed over to the creche.
Respondent/wife always behave in an insulting manner towards appellant/husband
and towards his relatives and also lodged a report in Police regarding cruelty in
relation to demand of dowry against the appellant/husband.
5 . The appellants and his relatives are well educated and in a position to
take care of the minor child Anushk. They have all facilities so that bright future
of Anushk can be ensured but without the consent and permission of
appellant/husband the minor child was handed over to the father of the
respondent/wife residing at Jhabua and was admitted to Indore Public School,
Jhabua. This act of the respondent/wife is towards the interest of the minor child
Anushk and will affect the bright future of Anushk, therefore, permanent custody
o f minor child was sought through application before the Family Court, Indore
filed on 28.06.2012.
6 . The respondent/wife refuted all the allegations in support of the
application and specifically asserted that appellant/husband has extra marital affair
and used to misbehave with her and usually committed acts of cruelty towards the
respondent/wife in an intoxicated condition. Appellant/husband made her life
miserable and in these circumstances it was not possible to live with the
appellant/husband and family members of the appellant/husband also advised to
live her separately with her minor child. She also asserted that the future of the
minor son Anushk is not safe with appellant/husband and she is looking after her
minor son properly.
7. Trial Court framed the issues and recorded the evidence of
appellant/husband as PW-1 witness Laxman Singh Gurjar as PW-2 and admitted
the documents Ex.P-1 C 2 and Ex.P-12. Respondent/wife examined herself as
DW-1.
8. Appreciating the oral and documentary evidence of both the parties, trial
Court recorded the findings that appellant/husband is not entitled for permanent
custody of minor child Anushk and dismissed the application.
9 . Challenging the findings of the Family Court this appeal has been
preferred on the ground that trial Court ignored the fact that respondent/wife has
no time to spend with minor child Anushk as she is engaged in her profession day
& night. Trial Court also ignored the fact that minor child Anushk is kept in the
creche which affects his future development. Trial Court also ignored the evidence
that family of the appellant is well educated and will help in grooming the future of
Anushk. Trial Court ignored the evidence relating to admission of Anushk in
Indore Public School, Jhabua. Trial Court also committed an error in rejecting the
evidence of Laxman Singh Gurjar (DW-2) and also assigned for incorrect reasons
to discard the appellant/husband's evidence.
10. The respondent/wife supported the judgment passed by the trial Court
and prayed for dismissal of this appeal.
Heard and perused the record.
11. Before dealing with the issues we are referring to para 14 of Gaytri
Bajaj v. Jiten Bhalla AIR 2013 SC 102 which is reproduced as below:-
"F rom the above it follows that an order of custody of minor
children either under the provisions of The Guardians and Wards
Act, 1890 or 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 the
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 concerned
parent 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 emphasized 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."
12. In the light of above principle we are re-appreciating the evidence of
trial Court. Trial Court has recorded in para 26 that respondent/wife is providing
education to her son Anushk in Prestigious Aggrawal School, Indore and she is
giving sufficient time to her minor child Anushk and economic condition is more
stable in comparison to appellant/husband. Trial Court has also recorded the
choice of minor child Anushk in para 29 of the judgment in which he has stated in
favour of mother and against his father.
13. On re-appreciation of the evidence adduced before the trial Court it
transpires that education of appellant and respondent is equal but financial stability
of respondent/wife is more stable. As per para 19 of his statement Anand Kalore
(PW-10) has not acted positively towards the well-being of minor son Anushk.
The daily routine as stated by the appellant/husband himself in para 22 of his
evidence is not less busy in comparison to respondent/wife and appellant cannot
claim the preference citing the support of other family members regarding whom
he has stated 10 years ago that his mother has attained the age of 64 years and his
brother Nitin is busy with his own family.
14. Crucial point is that on the application for early hearing of the appeal,
the matter was listed for hearing on 02.05.2024 and on that date the
respondent/wife alongwith his son Anushk were present but appellant/husband did
not mark his appearance and minor son Anushk expressed his willingness to live
with his mother only and denied to live with appellant/father.
15. On re-appreciation of evidence as well as the desire of the minor
child, coupled with the availability of conducive appropriate environment for
proper upbringing together with the ability of means of the respondent/wife to
take care of the minor child Anushk, the findings of Trial Court does not require
interference. Trial Court has already given visiting rights to appellant/husband
therefore, the appeal is devoid of merit and hence, it is hereby dismissed.
C.C as per Rules.
(S. A. DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
akanksha
