1 2025:CGHC:15827-DB AFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA(MAT) No.115 of 2022 Judgment reserved on : 04.03.2025 Judgment delivered on : 04.04.2025 1 - Smt. Neha Sharma, W/o Kaushal Kishore Sharma Aged About 35 Years D/o Ramkumar Sharma 2 - Minor Nawal Kishore Sharma S/o Kaushal Kishore Sharma, aged about 6 years, Represented Through Mother Neha Sharma, W/o Kaushal Kishore Sharma, Aged About 35 Years Both appellants R/o Lal Tanki Road, Behind Hanuman Mandir, Braj Bhushan Sharma Marg, Raigarh, Tehsil and District Raigarh, Chhattisgarh Appellants versus 1 - Kaushal Kishore Sharma S/o Devicharan Sharma Aged About 36 Years R/o F 17/3, Infront Of Icici Bank, Jindal Campus, Angul, District : Anugul, Orissa Respondent For Appellants : Mr. Rajat Agrawal, Advocate For Respondent(s) : Mr. Ravindra Sharma, Advocate Hon’ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Sachin Singh Rajput C A V Judgment Per Rajani Dubey J. Digitally signed by RAMAKANT NIRALA 2 1. The present appeal has been filed by the appellants against the judgment/order dated 11.05.2022 passed by the learned Family Court, Raigarh (C.G.) in Civil MJC No.F-37/2019, whereby the respondent’s application for custody of children has been allowed. 2. Brief facts of the case are that the marriage between the appellant No.1 and the respondent was solemnized on 06.05.2011 and out of their wedlock, appellant No.2 was born on 30.12.2013. After sometime of the marriage, the disagreements/conflicts used to take place between them, as such the appellant no.01 took away appellant no.02 to her maternal home on 10.10.2018, since then they both are residing separately from the respondent and his family members. Subsequently, the respondent filed an application under Section 13 of Hindu Marriage Act, 1955 for divorce registered as Civil MJC No.20/2021 before the learned Family Court, Raigarh, in which an application was moved by the appellant no.1 under Section 24 of the Act, 1955 for pendente lite maintenance. On 14 17.09.2021 an order was passed directing the respondent to pay a monthly expense of Rs 3,000/- and litigation expenses of Rs.5,000/- to the appellants and subsequently the decree of divorce was granted in favour of the respondent husband. Thereafter the respondent/applicant filed an application under Sections 6 of the Hindu Minority and Guardianship Act, 1956 for taking the custody of appellant no.02, which has been allowed 3 and the custody of the appellant No.2 has been directed to be handed over to the respondent, against which the present appeal has been filed by the appellants. 3. Learned counsel for the appellants submits that the impugned order is erroneous in law and facts both and the same is liable to be set aside. The learned Family Court while passing the impugned order has failed to appreciate the oral and documentary evidence adduced by the parties. It is incumbent upon the Court to find out the welfare of the child before passing the order regarding custody. The learned Family Court has failed to appreciate the material brought on record by the appellants and the evidence, which shows that the future and welfare of the minor appellant No.2 is not safe in the hands of respondent. The Family Court has committed gross illegally in passing the impugned order without framing the proper issues. The Family Court while passing the impugned order has failed to appreciate that the welfare of the minor depends on its proper upbringing including proper education which is a part of the right of a minor to life and decent living. Merely on account of the job of respondent, the minor's custody cannot be granted. On the other hand the respondent is not taking responsibilities of his child for paying maintenance even after the specific direction by the learned Family Court. Learned counsel further submits that it is well settled that in the matter of custody of child, the rights of the parents are not paramount consideration and it is the welfare of 4 the child which would be the paramount consideration for grant of custody, but the learned Family Court has not considered the said aspects of the matter and even the visiting rights was not granted by the learned Family Court. Therefore, the appeal deserves to be allowed. Reliance has been placed on the judgment rendered by the Hon’ble Supreme Court in the matter of Shazia Aman Khan and another vs State of Orissa and others, reported in (2024) 7 SCC 564 and Gaytri Bajaj vs Jiten Bhalla, reported in (2012) 12 SCC 471. 4. Learned counsel for the respondent supports the impugned order passed by the learned Family Court and submits that the learned Family Court has minutely appreciated the oral and documentary evidence available on record and rightly passed the order in favour of the respondent. The learned Family Court framed issues as per provisions of Hindu Minority and Guardianship Act, 1956 and after appreciation of oral and documentary evidence passed order in favour of the respondent father. The impugned order is well merited and does not require any interference by this Court. Therefore, the appeal is liable to be dismissed. Reliance has been placed on this Court’s judgment dated 11.05.2022 passed in FAM No.18/2019 in between Nimish S. Agrawal vs Smt. Ruhi Agrawal and another. 5. Heard learned counsel for the parties and perused the material available on record. 5 6. It is not disputed in this case that the marriage of the appellant No.1 Neha and the respondent was solemnized on 06.05.2011 and out of their wedlock, appellant No.2 Naval Kishore was born on 30.12.2013. It is also admitted fact that the respondent is working as Assistant Manager in Jindal Steel and Power Limited, Angul (Orissa). The respondent husband filed application before the learned Family Court under Section 6 of the Act, 1956 for custody of his child/appellant No.2 on this ground that he and appellant No.1 wife is living separately since long and welfare of child is in living with his father. The appellant wife opposed the prayer of the respondent husband before the learned Family Court and submitted that the appellant No.2 is below 5 years of age. She was subjected to mental and physical cruelty by her in- laws and the respondent so she is living separately and is taking care of her son properly. 7. The learned Family Court framed following 2 issues as under:- okn iz’u fu"d"kZ ¼1½ D;k vkosnd] vius ukckfyx iq= uoy fd’kksj 'kekZ dk Lo;a dks laj{kd fu;qDr djkus vkSj mldh laj{kdrk izkIr djus dk vf/kdkjh gS \ ^^gka^^ ¼2½ lgk;rk ,oa okn O;; \ Okknh dk okn dafMdk 30 ds vuqlkj Lohdkj fd;k x;kA 6 8. Before the learned Family Court, the respondent examined himself and witnesses Vikas Ranjan, Radheshyam Verma, Devicharan Sharma, Ramlal Raghuvanshi and Rupesh Kumar and also filed their affidavits including him under Order 18 Rule 4 of CPC, but the witnesses Ramlal Raghuvanshi and Rupesh Kumar did not appear before the learned Family Court for cross- examination. The appellant No.1 also examined herself and her brother Neeraj Sharma. 9. The learned Family Court after appreciating the oral and documentary evidence of both the parties allowed the application of the respondent/husband. The learned Family Court observed that the respondent is working in good company and the appellant No.1 has no source of income and she is dependent upon her brother. 10. The Hon’ble Apex Court in Shazia Aman Khan (supra) held in paras 18, 19, 20, 21 & 22 as under:- “18. This Court in Mausami Moitra Ganguli v. Jayant Ganguli, opined that the stability and security of the child is an essential ingredient for full development of child’s talent and personality. Relevant paragraph thereof is extracted below: “23. Having bestowed our anxious consideration to the material on record and the observations made by the courts below, we are of the view that in the present case there is no ground to upset the judgment and order of the High Court. There is nothing on record to suggest that the welfare of the child is in any way in peril in the hands of the father. In our opinion, the stability and security of the child is also an essential ingredient for a full development of child's talent and personality. As noted above, the appellant is a teacher, now employed in a school at Panipat, where she had 7 shifted from Chandigarh some time back. Earlier she was teaching in some school (2008) 7 SCC 673 at Calcutta. Admittedly, she is living all alone. Except for a very short duration when he was with the appellant, Master Satyajeet has been living and studying in Allahabad in a good school and stated to have his small group of friends there. At Panipat, it would be an entirely new environment for him as compared to Allahabad. [Emphasis supplied] 19. In Nil Ratan Kundu and another v. Abhijit Kundu13, this Court laid down the principles governing custody of minor children and held that welfare of the children is to be seen and not the rights of the parties by observing as under: “Principles governing custody of minor children 52. In our judgment, the law relating to custody of a child is fairly well-settled and it is this. In deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a humane problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or (2008) 9 SCC 413 procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor. xx xx xx 55. We are unable to appreciate the approach of the Courts below. This Court in catena of decisions has held that the controlling consideration governing the custody of children is the welfare of children and not the right of their parents.” [Emphasis supplied] 8 20. This Court has consistently held that welfare of the child is of paramount consideration and not personal law and statute. In Ashish Ranjan v. Anupam Tandon and another14, this Court held as under: “19. The statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. 21. This Court in Roxann Sharma v. Arun Sharma15, opined that the child is not a chattel or ball that it is bounced to and fro. Welfare of the child is the focal point. Relevant lines from para-No. 18 are reproduced hereunder: “18………There can be no cavil that when a court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child’s welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the Mother and this expectation can be deviated from only for strong reasons.” 22. Another principle of law which is settled with reference to custody of the child is the wish of the child, if she is capable of. Reference can be made to Rohith Thammana Gowda v. State of Karnataka and others’ case (supra). It was held as under: “18. We have stated earlier that the question ‘what is the wish/desire of the child’ can be ascertained through interaction, but then, the question as to ‘what would be the best interest of the child’ is a matter to be decided by the court taking into account all the relevant circumstances. A careful scrutiny of the impugned judgment would, however, reveal that even after identifying the said question rightly the High Court had swayed away from the said point and entered into consideration of certain aspects not relevant for the said purpose. We will explain the raison d’etre for the said remark.” 11. The Hon’ble Apex Court in Gayatri Bajaj (supra) also held in para 14 as under:- 9 “14. From 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 light of the above and looking to the facts and circumstances of the case, it is clear that the appellant No.2/child is now aged about 12 years and he is living with his mother since 2018. This Court on 04.12.2023 and 04.09.2024 interacted with the child through amicus curiae and mediator and child informed that at present, he is not physically and mentally ready to go in the custody of the respondent husband. It is also clear that both the parties are living separately since long and after divorce they also got married. 13. The Hon’ble Apex Court in the matter of Ritika Sharan vs Sujoy Ghosh, reported in (2020) SCC Online SC 878, held that a balance has to be drawn so as to ensure that in a situation where parents are in conflict, the child should have a sense of security, thus keeping in view the guidelines of the Hon’ble Apex Court 10 and after taking into account the overall facts and considering the paramount interest of the child, we are of the opinion that it would be proper if the mother holds the custody of the child. The finding arrived at by the learned Family Court with respect to the custody of the child to be with father is not sustainable. This Court already observed in the order dated 04.12.2023 that the interests of the child are best served by ensuring that both the parties have presence in his/her upbringing and the Indian society also takes within its sweep tender touch of the grand parents. 14. Accordingly, the appeal is allowed. The impugned order is hereby set aside. The custody of the child/appellant No.2 shall be held by the appellant wife. 15. Keeping in view the principles laid down by the Hon’ble Apex Court, we hereby order to facilitate grant of visitation and contact rights to the respondent father as under:- “(i) The respondent/father would be able to engage with the child on a suitable video conferencing platform for one hour every Saturday / Sunday and 5 – 10 minutes on Tuesday and Thursday. (ii) Both the respondent/father and the appellant/mother in order to facilitate the video conferencing between them shall procure smart phones which would facilitate the inter-se video calling. 11 (iii) During long holidays/vacation covering more than 2 weeks, the child will be allowed to be in the company of the father for long visitation of 5-10 days. The period shall be fixed by the father after due intimation to the mother and she will permit the child to go with the father for the aforesaid period and the mother, if so desires, may also accompany him. (iv) During festivals the father may join the company of the child at the place of the mother or any independent venue and spend the festival holidays with the child for a day along with the mother. (v) Since the mother and the child are presently residing at a far off place at Mumbai, the address would be provided to the respondent along with available cell phone number and whenever the cell phone number/address is changed, the same shall be provided to the respondent father. 16. Let decree be drawn accordingly. 17. No order as to cost. Sd/- Sd/- (Rajani Dubey) (Sachin Singh Rajput) Judge Judge Nirala