Rahul Surana vs Smt Shveta Surana
2025 Latest Caselaw 498 MP

Madhya Pradesh High Court

Rahul Surana vs Smt Shveta Surana on 8 May, 2025

Author: Hirdesh

Bench: Anand Pathak, Hirdesh

                                                 1

                   IN THE HIGH COURT OF MADHYA PRADESH
                                AT GWALIOR
                                  BEFORE
                        HON'BLE SHRI ANAND PATHAK &
                           HON'BLE SHRI HIRDESH, JJ

                                ON THE 8TH OF MAY, 2025

                             FIRST APPEAL No.37 OF 2020
                                    RAHUL SURANA
                                         Versus
                                  SMT. SHVETA SURANA

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Appearance:
Shri Vinod Bhardwaj, learned Senior Counsel assisted by Shri Rohit Batham- learned
Counsel for appellant-husband.
Shri OP Shrivastava- learned Counsel for respondent- wife.
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                                         JUDGMENT

Per Justice Hirdesh.

The instant first appeal under Section 19 of the Family Courts Act has been preferred by appellant challenging the impugned order dated 04-12-2019 passed by Principal Judge, Family Court, Shivpuri in MJCGW No.13 of 2018 whereby the application filed by appellant (husband) under Sections 7, 9, 10, 17 and 19 of the Guardians and Wards, 1890 (hereinafter it would be referred to as ''the Act of 1890'') seeking custody of his children (daughters Ku. Jainit, Ku. Himakshi and son Himank @ Harshal) has been dismissed.

(2) It is not in dispute that marriage of both the parties was solemnized on 19- 02-2007 according to Hindu rites and rituals and out of their wedlock, daughter Ku. Jainit was born on 29-12-2008 and twin children Ku. Himakshi and son Himank alias Harshal were born on 16-05-2013. The minor children are residing with their mother.

(3) Factual matrix of case at hand, in short, is that appellant filed an application seeking custody of aforesaid three children before the Family Court with averments that he is the natural guardian and father of minor children. Respondent

is a quarrelsome lady, who is voluntarily staying with her parents instead of staying with him, without sufficient reason. Respondent has falsely filed domestic violence and dowry harassment cases against him and his parents. He is capable of bringing up his minor children properly. Respondent teaches children in a private school and stays out of her house most of time. Parents of respondent are old and infirm and in absence of respondent, there is no one to take proper care of his children. His family is a joint family in whose proximity, it is possible to bring up the children properly in comparison with all-round development of children by respondent. Looking to the conduct of respondent, there is every possibility of mind of minor children being adversely influenced. Therefore, he sought custody of children.

(4) In counter, by filing a reply respondent alleged that appellant is not capable of ensuring physical safety. She was harassed physically and mentally by appellant and her mother-in-law and even she and her children were beaten up. She kept tolerating everything. Appellant left her and her children in Shivpuri on 17-10-2015 because of demand of dowry, on the basis of which, a case under Section 498-A of IPC is pending against appellant and his father before the trial Court. Appellant is not capable of bringing up the children in any way. She teaches only for a few period in the school. Her mother also helps in taking care of children. Living under her protection, the children are getting proper education and leading a disciplined life. Appellant goes out of house for many days to other States and abroad for his business. In such a situation, appellant is not able to take care of children in any way. It was further alleged that appellant himself is a very short-tempered person, who gets angry and beats her as well as innocent children on trivial matters. The bright future of minor children depends on her. In order to avoid paying maintenance amount passed by the Family Court under Section 125 of CrPC, appellant has left with no other option but sought protection of children, therefore, he is not entitled to get protection of children. Hence, prayed for dismissal of application.

(5) After considering the pleadings of both the parties, the Family Court

framed issues and vide impugned judgment, rejected the application filed by appellant seeking custody of minor children, with an observation that visitation rights shall be applicable upon filing an application by appellant and appellant shall be allowed to meet his three children for four hours in a month at the Mediation Centre of the Family Court.

(6) The contention of learned Senior Counsel appearing for appellant is that the Family Court has committed an error in rejecting the application filed by appellant. Taking exception to Para 32 of the order passed by Family Court while granting maintenance amount on the application under Section 125 of CrPC in favour of only minor children and declining to grant any interim maintenance amount in favour of respondent, it is contended that respondent is residing with minor children without any just and sufficient reason because of the fact that she has love affair with another person, namely, Dr. Anil Chaudhary and allegation of demand of dowry and reason of residing separately does not inspire the confidence of the Court. It is settled principle of law that while deciding the custody of minor child, the paramount consideration is the welfare of minor child, which ought to have taken into consideration by the Family Court. The respondent had not filed any complaint of torture and assault made by appellant. Without going through oral and documentary evidence in right perspective, the Family Court has totally overlooked this aspect and forgotten the principle of paramount consideration in regard to natural guardian. Despite being documents Ex.P10, Ex.P26 to Ex.P28 produced on behalf of appellant while deciding the question of welfare of minor children, the Family Court ought to have taken into consideration the character of respondent. Therefore, the Family Court has committed a grave error in passing the order impugned and prayed for setting aside the same. Placing reliance on the judgments passed in the cases of Sheila B. Das v. P. R. Sugasree (2006) 3 SCC 62, Smt. Radha @ Parimala v. N. Rangappa AIR 2004 Karnataka 299 and Vineet Kumar Lakhanpal v. Naman Lakhanpal AIR 2024 Delhi 168, learned counsel for the appellant submitted that father is competent enough to take care of his children looking to the good academic career

of children where he lives.

(7) On the other hand, learned counsel for respondent taking exception to the findings given by the Family Court in Paragraphs 18 to 34 as well as in Paragraphs 22 to 34 submits that the welfare of the children is safe under the guise of mother and further taking exception to the findings given by the Family Court in Paragraphs 38 and 39 of the order submits that if two "out of three children are daughters", then the twins cannot be bifurcated and the custody of the children cannot be given to the father. In support of contention, learned counsel has placed reliance on the decision of this High Court in the case of Deoyanibai Vs. Vijay Kumar reported in 1978 MPWN Vol.2 SN 71. It is further contented that earlier visitation rights were given to the appellant, so also despite direction given by this Court vide order dated 12.08.2024, the appellant did not make any effort to meet the children. Placing reliance on the decision of Hon'ble Supreme Court in the case of Kumar V Jahgirdar Vs. Chetana. K. Ramatheertha AIR 2001 SC 2179, Soumitra Kumar Nahar Vs. Parul Nahar 2021(1) MPLJ and Mohan Kumar Rayana Vs. Komar Mohan Rayana 2010 (3) MPLJ, it is contended that children prefer their mother's company as the bonding between them is greater than the bonding with their father. Custody and interest of welfare of child is paramount consideration, not convenience and pleasure of parties. The Court should decide issue of custody of child on a paramount consideration which is in the best interest of child, who is victim in the battle of custody. No interference is warranted with the order impugned passed by the Family Court. Appellant's visitation right is sufficient and not otherwise. Hence, prayed for dismissal of this appeal. (8) Heard learned Counsel for parties and perused the impugned order as well as documents available on record.

(9) The word ''welfare'' used in Section 13 of the Hindu Minority and Guardianship Act has to be construed liberally and must be taken in its widest sense. The moral and ethical welfare of the child must also weight with the Court as well as its physical well-being. Though the provisions of the special statues which govern the rights of the parents or guardians may be taken into

consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases.

(10) The principles in relation to the custody of minor child are well-settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the ''welfare of the child'' not rights of the parents under a statute for the time being in force.

(11) In the matter of Rosy Jacob vs. Jacob A Chakramakkal (1973) 1 SCC 840, the Hon'ble Apex Court observed that object and purpose of 1890 Act is not merely physical custody of the minor but due protection of the rights of ward's health, maintenance and education. The power and duty of the Court under the Act is the welfare of minor, in considering the question of welfare of minor, due regard has of course to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship.

(12) Again, in the matter of Thrity Hoshie Dolikuka vs. Hoshiam Shavaksha Dolikuka (1982) 2 SCC 544, the Hon'ble Apex Court reiterated that the only consideration of the Court in deciding the question of custody of minor should be welfare and interest of the minor. And it is the special duty and responsibility of the Court. Mature thinking is indeed necessary in such situation to decide what will enure to the benefit and welfare of the child.

(13) The coordinate Bench of this Court also in the case of Jayant Bavar vs. Smt. Deepa Bavar, AIR 1994 NOC 269 (Madhya Pradesh) dealt with the paramountcy of the child's welfare in custody matters and held that even though a father has a statutory right as a natural guardian, it must yield to the child's best interests, which can be determined based on the child's preference and other relevant factors.

(14) It is settled proposition of law that tender feelings of the child should not be shattered or hampered in developing, lest he should shape as an unwelcome citizen in the society. For determining welfare of the child the questions to be asked are :Where is he likely to more happy? By whom the physical and mental

development and comfort of the child can be better looked after? Who has not only the desire but a determination, not only the concept but also the capacity to provide for a better education and round the clock nursing of the child? Who would be available by the side of the child when the child would need love and affection, the care and counselling, the protection and petting up? (15) During pendency of this appeal, appellant filed an application vide I.A.No.43/2020, seeking ad interim custody of children, who are now shifted to Ambala with their mother-respondent i.e. the parental house of respondent. During interaction separately with the rival parties and all three children, this Court found that children are well protected with the mother, who is taking care of their education very well, therefore, this Court declined grant of ad interim custody while granting visitation rights to appellant to the extent that he shall interact with their children through audio and video call. Thereafter, appellant submitted that his visitation rights are being frustrated due to omission on the part of the wife. On the other hand, respondent-wife submitted that because of incessant rain, railway services were disrupted, therefore, she could not come. On the joint request of the parties, matter was put before the Mediator to resolve the dispute. This Court vide order dated 12.11.2024 reiterated the appropriate directions which were given on consideration of I.A. No.6197/2024, which was allowed earlier by this Court vide order dated 28.08.2024 as under:-

(a) Appellant may granted access to school portal and WhatsApp group of parents and teacher.

(b) Respondent may kindly be directed to give correct address and mobile number, so appellant may contact and meet on every weekend at Ambala, the respondent may also be directed to give address/venue to meet children.

(c) During summer and winter vacation, respondent may kindly be directed to handover kids & also be directed to take back kids at the end of vacation.

Counsel for appellant further reiterates his commitment to pay maintenance amount to his children for which latest account number of respondent who is residing at Ambala, be provided. Learned counsel for respondent fairly submits that within a week, account number shall be given to counsel for appellant or appellant

himself, as advised so.

(16) In pursuant to the order passed on 12.11.2024, it was contended on behalf of appellant that the respondent/wife is not cooperating in the matter. She has given bank account details of the Bank of Baroda at Ludhiana and it is the apprehension that she may not be living at Ambala but at Ludhiana. Vide interim order dated 12-11-2024, when direction was given to hand over custody of children for Winter Vacation, same has not been obeyed by the respondent/wife. Appellant is in fact ready to visit every week to the children at Ambala or Ludhiana wherever wife is posted, however cooperation is required from the side of respondent/wife. Counsel for respondent submitted that he has no clue about the whereabouts of respondent. Respondent was Teacher in private school at Ambala and sought time to seek instructions. Keeping in view the conduct of respective parties this Court found that the respondent/wife is not complying the direction given by this Court earlier specifically vide order dated 12-11-2024. It is her duty to facilitate visitation right to the appellant to meet their children at Ambala. She was also duty bound to give custody of children during Vacation. If she does not comply the order passed by this Court, then adverse inference shall be drawn against her. Besides that, till next date of hearing, appellant may stop making payment towards maintenance amount if he chooses to do so. Further, this Court observed that it is a lesson which wife requires to learn. Needful be done to provide exact address of respondent/wife in writing to the counsel for the appellant within three days and it is expected that wife shall unblock the mobile number of the appellant, so that communication between the parents and their children (husband and wife) be facilitated seamlessly. As observed earlier, in non- compliance of this order, adverse inference shall be drawn against the respondent/wife. At last, parties were directed to appear before the Mediator for ventilation of their grievances either in person or through Video Conferencing on 13.01.2025. In mediation proceedings, both the parties agreed that father and children shall be chatting through online video conferencing and on every Sunday 12:00 AM to 12 PM for 15 minutes.

                                          (ANAND PATHAK)                         (HIRDESH)
                                              JUDGE                                JUDGE




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         Date: 2025.05.22 15:45:23 +05'30'