1 2025:CGHC:13852-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA(MAT) No. 274 of 2024 Judgment reserved on : 28.02.2025 Judgment delivered on : 22.03.2025 1 - Santosh Kumar Suryavanshi S/o. Kirtan Lal Suryavanshi Aged About 38 Years R/o. Mudpar (Khisaur), Present Address Dhaivar City Lotus Tower, E-Block, 1 Floor, E1/10, Bhatagaon, Raipur (C.G.) (Non- Applicant No. 1 Before Family Court) 2 - Ramkuwar S/o. Kirtan Lal Suryavanshi Aged About 55 Years Caste - Suryavanshi, R/o. Mudpar (Khisaur), Police Station And Tahsil Navagarh, District - Janjgir-Champa (C.G.) (Non-Applicant No. 2 Before Family Court) 3 - Mina Bai W/o. Gendram Suryavanshi Aged About 45 Years Caste - Suryavanshi, R/o. Mudpar (Khisaur), Police Station And Tahsil Navagarh, District - Janjgir-Champa (C.G.) (Non-Applicant No. 3 Before Family Court) Appellants versus 1 - Smt. Vandana Suryavanshi W/o Santosh Kumar Suryavanshi Aged About 28 Years R/o Village Bhilauni, Post Dogakoharaud, Police Station and Tahsil Pamgarh, District Janjgir-Champa (C.G.) Respondent For Appellants : Mr. Arvind Shrivastava, Advocate For Respondent(s) : Mr. Bharat Rajput, Advocate RAMAKANT NIRALA Digitally signed by RAMAKANT NIRALA Date: 2025.03.22 16:56:18 +0530 2 Hon’ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Sachin Singh Rajput C A V Judgment Per Rajani Dubey J. 1. The present appeal has been filed by the appellants against the judgment/order dated 15.07.2024 passed by the learned Principal Judge, Family Court, Janjgir, District Janjgir-Champa (C.G.) in Civil MJC No.45/2023, whereby the respondent’s application for custody of children has been allowed. 2. Brief facts of the case are that the the marriage of the appellant No.1 and the respondent was solemnized on 11.04.2019 as per Hindu rites and rituals and out of their wedlock, one son and one daughter were born on 03.08.2020 & 28.03.2022, respectively who were aged about 3 years and 6 months on the date of filing of application by the respondent wife. The appellant husband and respondent wife are not living together since 03.07.2023. As per respondent, the appellant No.1 left her to her maternal home and forcibly took the children. She tried to meet them but the appellant did not allow her to meet them and even abused and assaulted her, as a result fo which she filed an application u/S 6 of the Indian Minority & Guardianship Act for custody of children before the learned Family Court, which has been allowed, against which the present appeal has been filed by the appellants. 3 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 has only considered the age aspect of children as provided under section 6 of the Act and while doing so failed to observe that the word used in said section as "ordinarily" means age is not the sole criteria for custody. The learned Family Court has failed to appreciate that while considering the issue of custody of a child apart from age, the welfare of the child relating to good bringing up, food, health, residence, safety, security, education, family atmosphere, love and affection is equally important. The learned Family Court should have considered the aspect with regard to wish of the child and if the Court feels that the child is old enough to decide with which parent the child wants to stay with, the Court should give preference to the child's wish. The learned Family Court should have considered that it is not a rule that the mother will always get custody. Usually, since the mother is considered a natural caregiver, the custody is given to the mother but the Courts does not give custody to the mother if it thinks that she will not be able to take care of the child, whereas the respondent is a quarrelsome lady with psychological problem. The learned Family Court should have considered that the children are presently in custody of appellants. The school education of son is also taken care of by the appellants, but the said aspects of the matter have not been considered by the learned Family Court. 4 Therefore, the impugned order is liable to be set aside. 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. 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, who is mother of minor children. Therefore, the appeal is liable to be dismissed. 5. Heard learned counsel for the parties and perused the material available on record. 6. It is not disputed in this case that the marriage of the appellant No.1 and the respondent was solemnized on 11.04.2019 and out of their wedlock, two children namely Harsh and Jainsi were born and at the time of filing of the application by the respondent wife on 08.09.2023, son Harsh was aged about 3 years and daughter Jainsi was aged about only 1 year. 7. Before the learned Family Court, the respondent wife filed application under Section 6 of the Indian Minority and Guardianship Act and considering the age of the children the learned Family Court allowed the application of the mother/respondent and custody of the children was handed over 5 to her. The appellant husband examined himself before the learned Family Court but he admitted in para 10 of the cross- examination that he works in Raipur and his both children reside with his parents at village. He denied that he left his children. The other witness Gendram also admitted in paras 5 and 8 of the cross-examination that it is true that both children reside with their grandfather and grandmother at village and the appellant husband works at Raipur. 8. The appellant husband objected that the respondent wife is mentally ill but it is clear from the record of the learned Trial Court that no medical evidence was produced by the appellants before the learned Family Court to prove this fact that the respondent is suffering from any mental disease. 9. This Court observed vide order dated 06.02.2024 in FA(MAT) No.21/2019 in the matter of Riyaz Mohammad vs Sofiya Khan and another in paras 10 & 14 as under:- “10) The Bench of this Court in a child custody matter i.e. FAM No. 185 of 2019, Lalit Kumar Jatwar Vs. Smt. Sushma Jatwar, at paras 6 and 7 in its judgment dated 03/02/2022 held as under:- “6. In cases of custody of child, the society values are riddled with contradiction. The courts have however never missed the finer point of paramount issue of welfare of the child. The Hon'ble Supreme Court has reiterated time and again, that the welfare of the child would be of paramount consideration. In a judgment Tejaswini Gaud and others Vs. Shekhar Jagdish Prasad Tewari and Others reported in (2019) 7 SCC 42, it has been held that the court while deciding custody cases of the child, it is not bound by the mere legal right of the parents or guardians. It held that though the provisions of the special statutes govern 6 the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning the custody of the minor child. Therefore, the paramount consideration should be the interest and welfare of the child. The Hon'ble Supreme court in the aforesaid judgment reiterated the view taken in Nil Ratan Kundu Vs. Abhijit Kundu reported in (2008) 9 SCC 413 wherein the court held that paramount consideration should be the welfare of the child and due weight should be given to child's ordinary comfort, contentment, health, education, intellectual development and favorable surroundings. 7. Further the Supreme court in the case of M.K. Hari Govindan Vs. A.R. Rajaram reported in 36 2003 onLine Mad 48 : AIR Mad 315 reiterated the view taken that custody cases of child cannot be decided on documents, oral evidence or precedents without reference to "human touch". It held that "human touch" is the primary one for the welfare of the minor since the other materials may be created either by the parties themselves or on the advice of counsel to suit their convenience. Further in the case of Gaurav Nagpal Vs. Sumedha Nagpal reported in (2009) 1 SCC 42 at paras 30, 32, 36, 37, 40, 50 and 51 the supreme court has held as under:- "30. Sometimes, a writ of habeas corpus is sought for custody of a minor child. In such cases also, the paramount consideration which is required to be kept in view by a writ- Court is `welfare of the child'. 32. In Mc Grath, Re, (1893) 1 Ch 143 : 62 LJ Ch 208, Lindley, L.J. observed; The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of the child is not to be measured by money only nor merely physical comfort. The word `welfare' must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well- being. Nor can the tie of affection be disregarded. 36. The Guardians Act, consolidates and amends the law relating to guardians and wards. Section 4 of the said Act defines "minor" as a person who has not attained the age of majority. "Guardian" means a person having the care of the person of a minor or of his property, or of both his person and property. "Ward" is defined as a minor for whose person or 7 property or both, there is a guardian. Chapter II (Sections 5 to 19 of Guardians Act) relates to appointment and declaration of guardians. Section 7 thereof deals with `power of the Court to make order as to guardianship' and reads as under: " 7. Power of the Court to make order as to guardianship.- (1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made-- (a) appointing a guardian of his person or property, or both, or (b) declaring a person to be such a guardian, the Court may make an order accordingly. (2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court. (3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act. 37. Section 8 of the Guardians Act enumerates persons entitled to apply for an order as to guardianship. Section 9 empowers the Court having jurisdiction to entertain an application for guardianship. Sections 10 to 16 deal with procedure and powers of Court. Section 17 is another material provision and may be reproduced; "17. Matters to be considered by the Court in appointing guardian.- (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. (2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. 8 (3) If the minor is old enough to form an intelligent preference, the Court may consider that preference. * * * * * (5) The Court shall not appoint or declare any person to be a guardian against his will. " 40. Section 6 enacts as to who can be said to be a natural guardian. It reads thus; "6. Natural guardians of a Hindu Minor.-- The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are-- (a) in the case of a boy or an unmarried girl--the father, and after him, the mother; Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl--the mother, and after her, the father. (c) in the case of a married girl—the husband: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section – (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.--In this section, the expressions "father" and "mother" do not include a step-father and a step- mother. " 50. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mousami Moitra Ganguli's case (supra), the Court has to give due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over 9 and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others. 51. The word `welfare' used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of the special statutes 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. " Therefore it is only the paramount consideration of the child that would be the deciding factor. 14. In the petition for custody, the appellant husband has mainly alleged to assassinate the character of the wife to highlight that the welfare of the child, would be better if she is given in custody to father. The nature of pleading and evidence by husband only shows misogyny runs deep into society. It is like a particular ideological school of thought battling for supremacy. In child custody case these pleadings and proof would be of little help. Instead of hectic parley and back room discussion the courts are required to consider, what is best for child. Though the father tried to project that the aliment cannot be treated in India, therefore, he wants custody, but in earlier habeas corpus petition when the issue came to the fore, the Court observed that according to the doctors opinion, the treatment was very much available in India even at Raipur.” 10. In FA(MAT) No.185/2019 vide order dated 03.02.2022 in the matter of Lalit Kumar Jatwar vs Smt. Sushma Jatwar, this Court observed in para 9 as under:- “9. The existing factors would lead to show that the father is working at a higher post of Block Education Officer who has to discharge the work in the field, whereas the mother, though is also in the job of Teaching and in order to take care of the child she takes the child along with her even to the school to extend psychical support. Therefore, the father though is also a well-wisher and wants to take care of the child but the degree of care as being extended by the 10 mother is higher to hold the sway to have the custody of the child especially considering the nature of ailment with which the child is suffering from birth. The nature of job and care as extended by mother is more vital. It is obvious that when the father is working at field moving from one place to other, how it is expected that the father would be able to give the company to extend the physical support to the child ? On the other hand, mother would be able to contribute more physical support to the ailing child with some cheer. Therefore, the finding of the family court that the welfare of the child would be better in degree in the custody of the mother appears to be justified which does not require any interference.” 11. In light of the above, in the present case, it is clear that the appellant husband is working at Raipur and the minor children are living with their grandfather and grandmother. The appellants have failed to prove this fact that the mother of the children is suffering from any mental disease. It is also clear that both children presently are only aged about 5 years and 3 years, grandfather and grandmother are also well wisher and want to take care of children but the degree of care as being extended by the mother is higher to hold the sway to have the custody of the child specifically considering the small age of both the children. The learned Family Court also minutely appreciated the oral and documentary evidence properly and allowed the application filed by the respondent mother and also gave visitation right to the father/appellant husband. Thus we are of the considered opinion that the order passed by the learned Family Court is just and proper and in welfare of both the children and the same does not warrant any interference by this Court. 11 12. With due respect, the judgment cited by the learned counsel for the appellant in case of Shazia Aman Khan (supra) does not help the appellant in any manner being distinguishable on facts. In the said case, the girl child had never lived with her biological father since her birth and was aged 14 years and has been living with her aunt from the age of 2-3 months. In the present case, the children are only 5 years and 3 years old and at the time of filing of application they were only 3 and 1 year old. The biological father is also living at Raipur whereas the children are residing in village with their grand parents. Therefore, the appellant cannot derive any benefit from the case law cited. 13. The appeal is without any merit and is liable to be and is hereby dismissed accordingly. Sd/- Sd/- (Rajani Dubey) (Sachin Singh Rajput) Judge Judge Nirala