Ranjan Kumar Gupta @ Ranjan Kumar vs Puja Devi
2023 Latest Caselaw 2383 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
       CIVIL MISCELLANEOUS JURISDICTION No.330 of 2018
======================================================

Ranjan Kumar Gupta @ Ranjan Kumar son of Sri Chandulal Gupta, Resident of Village- Badi Badalpura, P.S.- Khagaul, Lakhpar, District- Patna.

... ... Petitioner/s Versus

Puja Devi wife of Ranjan Kumar Gupta, Daughter of Sri Raju Prasad Gupta, Resident of Bhawar Pokhar, Park Lane, P.O.- Bankipur, P.S.- Pirbahore, District- Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Niraj Kumar, Advocate For the Respondent/s : Mr. Binod Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA CAV JUDGMENT Date : 15-05-2023

Heard the parties.

2. This Civil Miscellaneous Application has been

filed under Article 227 of the Constitution of India for setting

aside the order dated 31.01.2017 passed by the learned Principal

Judge, Family Court, Patna in Matrimonial Case No. 930 of

2015 whereby petitioner / husband has been directed to hand

over the custody of the minor child to the respondent / wife.

3. The brief facts of this case are that the petitioner

and respondent are husband and wife. Their marriage was

solemnized on 15.12.2010 according to Hindu Rites and

Customs at Patna. Out of the aforesaid wedlock a female child

was born on 07.02.2012. Matrimonial relations between the

petitioner (husband) and respondent (wife) were not cordial and Patna High Court C.Misc. No.330 of 2018 dt.15-05-2023

disputes and differences having developed between the parties

and the marriage had broken down so both the parties decided to

dissolve the marriage by decree of divorce and filed a joint

petition under Section 13-B of Hindu Marriage Act, 1955 on

21.08.2015, before the Court of learned Principal Judge, Family

Court, Patna. The parties have agreed that the husband will pay

Rs. 5 lacs to his wife as full and final settlement and the minor

girl will remain with her father. On 05.03.2016, as per their

agreement the petitioner paid Rs. 5 lacs to respondent / wife and

the minor child was handed over in the custody of the

petitioner / husband. On that day, the parties were examined and

the case was fixed for judgment on 01.04.2016.

4. Thereafter, on 21.03.2016, the respondent filed a

petition to make some provision in decree, if passed, to the

extend that the custody of the minor daughter shall be given to

the respondent / wife which was opposed by the petitioner /

husband. On 11.04.2016, the petitioner filed reply to the petition

stating that the respondent after receiving the money starting

harassing the petitioner and his family members and the

petitioner wanted the money refunded with interest. On

02.08.2016, the respondent wife filed a petition praying to

withdraw her consent of mutual divorce and wanted to live with Patna High Court C.Misc. No.330 of 2018 dt.15-05-2023

her husband. On 23.12.2016, petitioner filed a petition with a

prayer to return back his entire money. On 21.01.2017, the

respondent filed reply stating that she is ready to refund the

money with the condition that the custody of the daughter

should be in her possession. The learned Principal Judge,

Family Court, Patna vide the impugned order dated 31.01.2017,

observed that before passing order on petition dated 02.08.2016

with respect to withdrawl of the consent by the respondent wife,

it is desirable that the respondent-wife be directed to return the

permanent alimony amounting to Rs. 5 lacs taken by her to the

petitioner-husband and it is also desirable that petitioner-

husband hand over the custody of the minor child to respondent-

wife and accordingly, directed the respondent to refund Rs. 5

lacs to the petitioner and petitioner was directed to hand over

the custody of the minor child to the respondent / wife.

5. Learned counsel for the petitioner has submitted

that the learned court below directed the minor child to be hand

over to respondent / wife without considering the welfare of

child and also without considering that petitioner who is father

of the child is natural guardian, and the petitioner and his family

members have great love and affection towards the child. It is

further submitted that petitioner and his family members are Patna High Court C.Misc. No.330 of 2018 dt.15-05-2023

looking after the school going child who is growing well under

their guardianship. Further, he has submitted that the direction

to hand over the minor child to the respondent-wife, who used

to change her mind, is not in the interest of child to live with her

particularly when the minor child is living since long with the

father.

6. On the other hand learned counsel for the

respondent submits that it is in the interest of minor child to live

with her mother in view of the changed circumstances. Since the

mediation between the parties failed and the petitioner himself

demanded to return the paid amount, he and his family members

are not taking care of minor child, it is in the interest of justice

that the child be returned back to her mother. He has further

submitted that despite the Court order the petitioner failed to

bring the child so that she can meet her mother. The petitioner

has managed to keep custody of the child and not hand over

despite the order of the Court and he cannot be a beneficiary of

his own wrongs.

7. In the present case, the minor child is now aged

about 11 years, the impugned order was passed on 31.01.2017

i.e. more than 6 years ago, accordingly the circumstances are

materially changed. It is better to interact / consult with the child Patna High Court C.Misc. No.330 of 2018 dt.15-05-2023

also by the court at this stage regarding her preference for the

parents she wants to stay and before passing the order of

custody consider other factors also with respect to the best

interest of the child.

8. It is well settled that the first and paramount

consideration in child custody is the welfare and interest of child

and not the right of the parents. The custody of child shall be

handed over to the person who fosters the minor child with care,

love and affection. The custodial parent becomes the primary

care giver responsible for emotional, medical and educational

needs of the child, while the non-custodial parent retains the

right to meet the child. Overall development of child, who is the

nation's future, is in the public interest. In the custody battles

between the parents, the major sufferers are their children.

While parents seek divorce by mutual consent they may decide

the issue of child custody, however, if the same is not mutually

decided then it shall be decided by the Court considering the

welfare of child.

9. Under Section 26 of the Hindu Marriage Act,

1956, the Court has been empowered to pass any order or make

any arrangement in respect of custody, maintenance and

education of children during the pendency of the proceedings or Patna High Court C.Misc. No.330 of 2018 dt.15-05-2023

after any decree is passed under the Act. The orders made under

this section can be varied, suspended or revoked from time to

time. The object of this section is to make just and proper

provision for the welfare of minor child.

10. A child is not a chattel nor is he / she an article of

personal property to be shared, parents are expected to give

preference to child's welfare over own legal rights. The court is

required to exercise parens patriae (guardian of child)

jurisdiction and compel the parties to do something which is in

the best interest of the child.

11. The custody orders are always considered

interlocutory orders and by the nature of such proceedings

custody orders cannot be made rigid and final. They are capable

of being altered and moulded keeping in mind the needs of the

child.

12. Since the matter is pending before the court

below, no observation of this court on the merit of the case or

conduct of the parties is required.

13. Earlier there was agreement between the parties

with respect to permanent alimony and custody of minor child

but now the parties are not mutually agreed on those conditions.

In the changed circumstances, the trial court is required to Patna High Court C.Misc. No.330 of 2018 dt.15-05-2023

consider all the aspect of the case and for decision on custody of

minor child, welfare of child is prime consideration.

Accordingly, the impugned order is set aside.

14. This Miscellaneous Application is disposed of

with the direction that the learned trial court shall pass the fresh

order on the petitions of the parties including on interim custody

of the child in accordance with law.

15. The learned court below is also directed to

dispose of the Matrimonial Case expeditiously and both the

parties are also directed to cooperate in early disposal of the said

Matrimonial Case.

(Sunil Dutta Mishra, J)

shweta/-

AFR/NAFR             NAFR
CAV DATE             15.03.2023
Uploading Date       15.05.2023
Transmission Date