Prabat Singh vs Roopkanwar @ Rubi ...
2023 Latest Caselaw 7071 Raj

[2023:RJ-JD:28929-DB]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Civil Misc. Appeal No. 1415/2023

Prabat Singh S/o Shri Fathe Singh, Aged About 35 Years, Resident Of Village Lodrawa, Post Roopsi, Ps Jaisalmer, Tehsil Jaisalmer, District Jaisalmer, Rajasthan.

----Appellant Versus Roopkanwar @ Rubi W/o Shri Parbat Singh, Aged About 33 Years, D/o Shri Gajesingh, Resident Of Village Hariadhana, Tehsil Bilara, Ps Pipar City, District Jodhpur, Rajasthan, Presently Resident Of Houses No. 143, Vidhya Nagar, Paota C Road, Tehsil And District Jodhpur Rajasthan.

                                                                    ----Respondent


For Appellant(s)              :    Ms. Ruchika
                                   Mr. Vijay Solanki




             HON'BLE MR. JUSTICE VIJAY BISHNOI
       HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI

                                    Judgment

12/09/2023 (Per Hon'ble R.P. Soni, J.)

1. This appeal has been preferred by the appellant-husband

against order dated 25.07.2023 passed by learned Family Court

No.2, Jodhpur in Civil Case No. 06/2018 (N.C.V No. 24/2015) by

which learned trial court has dismissed the prayer of appellant for

custody of the child, who is currently residing with the respondent.

2. As per facts available on record, the appellant and the

respondent tied matrimonial chord on 30.06.2006 as per Hindu

rituals and ceremonies. This sacrosanct alliance eluded the couple,

inasmuch as soon after the marriage, and matrimonial discord

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surfaced, which has loosened the said knot. Both the parties

blame each other for sordid state of affairs. Over a period of time,

relationship between the parties has been ruined. What is more

unfortunate is that the acrimony between two of them, because of

which they are living separately since 2007, life of their only child

Shivam @ Shiv Raj Singh, who was born from their wedlock on

12.01.2008 is becoming more and more miserable.

3. The appellant herein pleaded that respondent has chosen to

live with her parents willingly and refused to live a married life

with the appellant. She has deserted matrimonial home and

broken the institute of marriage. She is currently residing

separately without any sufficient reason. She has filed various

cases against the appellant and his family members. It is further

pleaded that respondent is not leading a chaste life and is seeking

to sever ties with the appellant through divorce. Appellant is very

much affectionate towards his son and is very much interested in

his welfare. He can offer a better future for his child as the child is

not being maintained and looked after properly by the respondent.

The appellant is keen on taking custody of the child to provide him

with better education and upbringing. Despite several attempts to

take custody, respondent has consistently refused.

4. It is further pleaded that continued life of the child with the

respondent will be against the context of the child. Appellant is

natural guardian of the child under the law and, therefore, entitled

to have the custody. For these reasons, he prayed for the custody

of the child.

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5. Respondent-wife stated in reply that husband himself has

thrown her out of in-laws house and behaved with cruelty.

Appellant has never been affectionate towards the child. He has

not even deposited the amount ordered by the court for the

maintenance of the child. She has been in continuous possession,

care and protection of the child since birth and appellant has no

love and affection for his son. For physical and mental well-being

and proper upbringing of the child, she is entitled to retain

custody of the child, being her mother. According to her, she is

bringing up the child in an affectionate manner and in healthy

manner. All other allegations including her reputation were denied.

She is very much attached towards her son and the son is also

keeping good health and is getting good education. On these

grounds, the respondent wanted dismissal of petition.

6. The trial court framed the issue which touched upon the

dispute that is whether the appellant herein is entitled to have

custody of his minor son.

7. Evidence was led by both the parties, who examined

themselves as PW-1 and DW-1 respectively. The respondent also

got the statement of his minor son Shivraj Singh recorded.

8. After taking into consideration the entire evidence both oral

and documentary, learned trial court was of the opinion that the

respondent, being mother of the child, was better suited to retain

the custody and to take care of the child and this course of action

is in the best of interest of the child. Trial court, therefore,

dismissed the petition filed by the appellant.

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9. Heard learned counsel for the appellant at the admission

stage and perused the record.

10. The only question that requires consideration in the present

appeal is how far the learned Judge was correct in holding that the

father is not entitled to have the custody of the child.

11. Based upon the provision of section 6(a) of Hindu Minority

and Guardianship Act 1956 (for short "the Act"), learned counsel

for the appellant argued that the appellant is natural guardian of

the child and is competent to maintain his son properly. He is

seeking custody of his son with a view to make his future bright,

therefore, he prayed to set aside the impugned order and allow

the appeal.

12. In the instant appeal, we are concerned with the most

delicate and difficult problem, namely, who should be given the

custody of minor Shivam @ Sivraj Singh.

13. It is well settled that in matters concerning custody of minor

children, the paramount consideration is welfare of the child and

not the legal rights of this or that particular party.

14. There is no dispute that appellant is the natural guardian, he

being father of the minor son. After a father, a mother is the

natural guardian. But guardianship alone is not sufficient to have

custody of the child.

15. Upon perusal of relevant provisions of the Act, which clearly

emerge that in the matters relating to the custody of a child,

paramount consideration of welfare of the child must weigh with

the court and while examining "welfare of the child", said term

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must be given effect to in its broadest sense. Welfare of the child

is not to be measured by money or merely physical comfort only.

Word "Welfare" must be taken in its widest sense and overall

welfare of the child must be considered. Aforesaid aspect has been

consistently highlighted over the years in several judicial

pronouncements of Hon'ble the Apex Court.

16. Where a child feels tormented because of strained

relationship between his parents and ideally needs company of

both of them, it becomes, at times, a difficult choice for the court

to decide as to whom custody of the child should be given.

However, many times, prevailing circumstances are so puzzling

that it becomes difficult to weigh the conflicting parameters and

decide on which side the balance tilts.

17. The trump card in the arguments of appellant is that he is an

Army personnel and children of soldiers receive numerous facilities

that contribute to their comprehensive development including

good education. These benefits can help foster a disciplined and

structured life for his son, which otherwise, respondent cannot

provide at all, therefore, he is the right person to bring up the

child. The argument looks attractive but at the same time it

overlooks a very significant factor. During the course of his service

tenure, appellant would also be getting posted at non-family

stations. He may also task with variety of hard duties including

combat operations, conducting patrols and reconnaissance

missions in potentially hostile areas, humanitarian aid operations

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such as disaster relief etc. In such situations, it will be impossible

for him to keep the child with him.

18. As per the impugned order, appellant has admitted in his

deposition that he has not even seen the child since he was born;

he is not contributing to the growth and maintenance of child; he

has not sent any money for the maintenance of child as their

relationship was strained; he is unaware of his son's schooling

details including his present class and school; he has never

brought any gifts or clothes for his son. In view of these

admissions, the appellant cannot be a beneficiary of his own

wrongs. So far as obligation of appellant towards his minor son is

concerned, ample material is available on record to show that

appellant had neglected his son and the intention of the appellant

was to abandon the child. It is only after issuance of warrant of

recovery by the court concern, the appellant is depositing the

maintenance amount.

19. According to the impugned order, child Shivam @ Shivraj

Singh is now nearing 16 years and he is attending the school. For

entire part of his life, he has been with the mother and mother

only. The conduct of the father has not been such as to inspire

confidence in us that he is a fit and suitable person to be

entrusted with the custody of the child. There has been no

attempt by the appellant to show any interest in the welfare of the

child.

20. In examination before the trial court, child Shivam @ Shivraj

Singh has shown his affinity towards his mother rather than father

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and has expressed that he would not like to live with his father. He

preferred her mothers company as the bond between them was

greater.

21. In the instant case, the factors which weigh in favour of the

respondent are that child is living with her mother since birth. The

appellant has also admitted in his deposition that the respondent

currently earns an income of Rs. 80,000-85,000 per month by

doing tailoring and tuition work. It proves that she is having

sufficient means to maintain the child. For the last 16 years, it is

the respondent, who had nursed the child and has taken care for

his bright future. Taking into account present working and earning

of mother, we feel that she can attend all the needs of the child

and she is better suited for his future requirements since she is

working as private teacher, she is in much better position to take

care of his educational needs as well. The appellant cannot even

claim to have an edge over the respondent during this period.

Desire of child is to continue to live with the mother. Obviously, he

is very much attached to the mother and he thinks that he should

remain in the present environment. A child who has not even

seen, experienced or lived with his father, will naturally find it

impossible for him to adapt to his company.

22. This Court cannot turn a blind eye to the fact that there have

been a strong feelings of bitterness, anger and distress between

the husband and wife, which led to the separation. The intensity of

negative feelings of the child towards the father would have

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obvious effect on the psyche of minor child, who has remained in

the company of his mother, to the exclusion of his father.

23. The role of mother in development of a child's personality

can never be doubted. It is most natural thing for any child to

grow up in the company of once mother. Neither the father nor

any other person can give the same kind of love, affections, care

and sympathies to a child as that of a mother. The company of a

mother is more valuable to a growing up child unless there are

compelling and justifiable reasons, a child should not be deprived

of the company of the mother.

24. As per the provisions of the Act, no rights are created, it only

creates obligations on the parents in regard to their children.

Obligations are required to be discharged properly with care,

affections and devotion. We are also conscious that the father,

being the natural guardian, has a preferential right to the custody

of his child but keeping in view the facts and circumstances of the

case and wishes of the child, we feel that the better course is to

allow the child to continue to be with his mother since she is not

only maintaining her son properly but also have sufficient means

to maintain him as well as has genuine love and affections for the

child coupled with having ample time to spend with the child. It is

also apparent that the mother has taken care of her minor son for

his bright future. According to us, the welfare of the minor would

be better looked after by the mother.

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25. In the light of the above, the contention made by the learned

counsel for the appellant relying upon section 6 (a) of the Act does

not stand to reason.

26. Considering the totality of the facts and circumstances,

factors in favour of mother are weightier than those in favour of

the father and welfare of the child lies with the mother. We are of

the view that the father was not entitled to have custody of the

child. Considering the crucial age of the child, the mother should

not be deprived of the custody of her son and better course was to

allow the child to continue to be his mother and grow in her

custody.

27. In the considered opinion of this Court, we do not find any

illegality, material irregularity or jurisdictional error which calls for

any interference. Resultantly, present appeal sans substance being

devoid of any merit and deserves to be dismissed at the admission

stage itself.

28. Accordingly, the present civil misc. appeal stands dismissed

in limine.

(RAJENDRA PRAKASH SONI),J (VIJAY BISHNOI),J 198-nitin/-

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