Raja Ram vs Smt. Rachna Arora ...
2026 Latest Caselaw 4187 Raj

Rajasthan High Court - Jodhpur

Raja Ram vs Smt. Rachna Arora ... on 18 March, 2026

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     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
                 D.B. Civil Misc. Appeal No. 1243/2025

Raja Ram S/o Shiv Ram, Aged About 45 Years, 24/07 Railway
Colony Dya Basti Delhi
                                                                      ----Appellant
                                        Versus
Smt. Rachna Arora D/o Meghraj Arora, Barkat Colony Ward
Number 35 Behind Fort Hanumangarh Town Tehsil And District
Hanumangarh Rajasthan
                                                                    ----Respondent


 For Appellant(s)              :    Mr. Jeetender Singh Khichi
 For Respondent(s)             :    Mr. Kuldeep Sharma


               HON'BLE MR. JUSTICE ARUN MONGA

HON'BLE MR. JUSTICE SUNIL BENIWAL

Order(Oral)

18/03/2026

Per:- Arun Monga, J

1. Appellant-father seeks quashing of order dated 02.01.2025

passed by Learned Family Court, Hanumangarh, wherein

application filed under section 25 of the Guardians and Wards

Acts, 1890, for custody of his minor son was rejected by holding

that the child's welfare lies in continuing with the respondent-

mother.

2. Succinctly speaking, the brief facts of the case, as stated by

the learned counsel for the petitioner, are that the appellant and

respondent got married on 09.11.2008 as per Hindu rites and

rituals, and out of this wedlock, they were blessed with a son.

After some time of the marriage, family disputes arose between (Uploaded on 24/03/2026 at 03:56:02 PM)

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the parties on trivial issues, which led to dissolution of marriage

by mutual consent. After dissolution of marriage, the respondent

took the minor son with her to her parental house.

2.1 The learned counsel for the petitioner further submitted that

the family environment of the respondent is not conducive for the

proper upbringing of the minor, in as much as the wife of her

brother has instituted criminal proceedings against the

respondent's family members. It was further contended that the

respondent, being employed with the Nagar Palika, has left the

minor son in the care of his maternal grandfather and

grandmother, and that his upbringing is not being attended to

adequately. On the other hand, the appellant, who is residing in

Delhi, is in a position to properly nurture and maintain the child

while ensuring adequate education and other necessary facilities;

therefore, it is prayed that the custody of the minor son be

entrusted to the appellant

2.2 After service of summons, the respondent filed a written

statement in reply to the application filed by the appellant,

contending that the parties never resided at Hanumangarh and

had, in fact, resided at Ajmer after marriage. It was further

averred that the marriage came to be dissolved on account of the

appellant's habit of consuming liquor. The respondent also

instituted criminal proceedings against the appellant, which were

subsequently settled with the intervention of respected members

of society. It was further submitted that the marriage was

dissolved by mutual consent, wherein it was agreed between the

parties that the minor son would remain in the custody of the

respondent.

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2.3 The learned Family Court framed two issues. The first issue

relates to the welfare and interest of the minor child in the

custody of the respondent. In support of evidence, the statements

of AW-1 Rajaram, AW-2 Honey Setiya, and AW-3 Devendra Singh

Kashyap were recorded, and in defence, documentary evidence

including Exhibit-1 (copy of FIR), Exhibit-2 (charge sheet),

Exhibit-3 (statements of witnesses in the dowry case), Exhibit-04

to 06 (application under Section 09 of the HM Act), and

documents marked as Exhibit 07 to 13 were produced. In support

of the defence evidence, NAW-01 Rachna Arora herself was

examined. The learned Court below did not consider the actual as

well as factual aspects of the matter and, vide its order dated

02.01.2025, dismissed the application filed by the appellant-

applicant.

2.4 Hence, this instant appeal.

3. We have heard the rival contentions of the learned counsels.

4. First and foremost reference may be had to Para 19 of the

impugned order dated 02.01.2025 passed by Learned Family

Court, Hanumangarh. English translation of the relevant part

reads as under:-

"19. Under the Guardians and Wards Act, the custody of a minor child is to be determined solely on the basis of the welfare of the child. Before declaring guardianship, the court must examine where the future of the minor would be more secure and where his welfare lies. From the evaluation of the pleadings and evidence on record, it is an admitted position that the applicant, Rajaram, and the non-applicant, Rachna Arora, are husband and wife, and out of their cohabitation, the minor child, Chunesh Singh Kashyap, was born. The child is presently residing with the non-applicant. Through the present proceedings, the applicant seeks custody of his minor son from the non-applicant.

The applicant's primary contention is that the non-applicant is not properly taking care of the minor child and that the (Uploaded on 24/03/2026 at 03:56:02 PM)

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environment of her parental home is not suitable, thereby making the life of the child miserable and unsafe. On the contrary, the non-applicant contends that the applicant is addicted to alcohol and that, if custody is granted to him, the future of the child would be adversely affected. It is further established that the parties had filed a petition under Section 13B of the Hindu Marriage Act by mutual consent, which was allowed by the court, and it was specifically agreed therein that the minor child would remain with the non- applicant. In accordance with the said agreement, the child has been residing with her.

The applicant, in his pleadings as well as in his affidavit (AW-

1), has admitted that the marriage was dissolved by mutual consent. In his cross-examination also, he admitted that, as per the judgment dated 11.02.2019, it was decided that the child would remain with the non-applicant in the future as well.

Documentary evidence (Exhibits A-1 and A-2) clearly supports this position, wherein it is specifically recorded that the child shall remain with the mother and that the applicant had paid maintenance for both the wife and the child.

Although the applicant expressed ignorance regarding such consent, he has not categorically denied it, which indicates that he had indeed agreed to the child remaining with the non- applicant. Therefore, once such consent has been given and the child is presently residing with the non-applicant, transferring custody to the applicant does not appear just or appropriate. The non-applicant (NAW-1) has stated in her cross- examination that she is well-qualified (M.A., B.Ed., PGDCA) and has admitted the child to Kendriya Vidyalaya, Hanumangarh Junction, where he secured 75% marks in Class IX and actively participates in multiple sports. These statements have not been rebutted by the applicant, which indicates that the child is receiving proper education and development under her care.

On the other hand, the applicant (AW-1) has admitted that he resides alone in Delhi, prepares his own food, and may be required to work night shifts in the future. He has also admitted to suffering from a medical condition (Tinea corporis), due to which he was declared medically unfit for certain duties. In such circumstances, he does not appear capable of providing proper care and upbringing to the minor child. Further, the applicant himself admitted that the child has been residing with the mother since birth and that she has been bearing all expenses relating to his education and upbringing. There is no evidence to show that the applicant has had any meaningful interaction or emotional bond with the child. The minor child, born on 05.10.2009, is presently about 15 years of age and has continuously resided with the mother. At this crucial stage, proper upbringing and moral guidance are essential, which, in the present circumstances, are more likely to be provided by the mother, with whom the child has a stronger emotional bond.

From the overall appreciation of evidence, it is clear that the non-applicant, being the natural mother, has been providing a stable and secure environment for the minor child, who is safely pursuing his education under her care.

There is nothing on record to suggest that the non-applicant is incapable of maintaining or properly raising the child. On the (Uploaded on 24/03/2026 at 03:56:02 PM)

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contrary, the evidence clearly indicates that the welfare and future of the minor child are better secured in her custody. Accordingly, it is held that the custody of the minor, Chunesh Singh Kashyap, should continue to remain with his mother, the non-applicant, Rachna Arora, as it is in the best interest and welfare of the child."

5. Perusal of the above clearly reveals that it was only after

both the parties arrived at the mutual acceptable arrangement

that marriage between them was dissolved as per the settlement

arrived between them. Part of the settlement included that

custody of the minor son, who was then 10 years old, was

mutually agreed to be in the exclusive custody of the respondent-

mother.

6. Subsequently, however, it is turned out that the appellant-

father seems to have had change of heart and he realised that

giving the permanent custody to the respondent-mother ought to

have been subject to his visitation rights, which he did not insist

for at the time of giving his consent as aforesaid.

7. In the course of arguments, learned counsel for the appellant

has submitted that even today, the appellant is not backing out of

the mutual consent given for dissolution of marriage, but seeks a

slight modification in the impugned order and judgment, namely

granting visitation rights to the appellant, being the natural

guardian (father) of the minor son born from the wedlock between

the parties.

8. Having given our thoughtful consideration to the aforesaid

submission, we are of the opinion that, no judicial interference is

warranted in the impugned judgment.

9. However, at the same time, by sheer interregnum of time, the

minor son, who was then 10 years old, has turned 16 years old as

of today and thus has a mind of his own to take his decisions on

personal relations. He can no longer be regarded as incapable of (Uploaded on 24/03/2026 at 03:56:02 PM)

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forming an independent judgment; rather, he is possessed of

sufficient maturity, understanding, and emotional awareness to

form and express his own reasoned preferences.

10. We are hopeful that, in case the father makes an earnest

endeavour to reach out to his son with the help of family members

and elders, the respondent-mother would not create any

hindrance or deny her son the opportunity to meet his father, if, of

course, the son so desires. She (mother) is expected not to place

any impediment in the way of such interaction between father and

son. The child ought not to be deprived of the opportunity to

engage with his father, who is equally a co-parent, provided he is

himself willing and inclined to do so. Ultimately, any such

interaction must be guided by the paramount consideration of the

child's welfare, with due regard to his own wishes and emotional

well-being.

11. With these observations, the instant appeal is disposed of.

12. Pending application(s) also stand(s) disposed of.

                                   (SUNIL BENIWAL),J                                                   (ARUN MONGA),J
                                   58-KP Singh Dewasi/-




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