1 FA (MAT) No. 163/2022 2025:CGHC:18868-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA(MAT) No. 163 of 2022 {Arising out of judgment & decree dated 07.07.2022 passed by the Second Additional Principal Judge, Family Court, Raipur, in CMC Case No. 183/2019 } • Suresh Kumar Kurre S/o Late Shri Chandram Kurre, Aged About 45 Years, R/o Village And Post- Jawali, Tahsil- Dabhra, District Janjgir Champa (C.G.) Other Address R/o (Occupation Teacher), Eklavya Adarsh High School, Chhote Mudhpar, Post- Mainapara, Tahsil Kharsiya,, District : Raigarh, Chhattisgarh ... Appellant versus • Ku. Khushbu Kurre D/o Shri Suresh Kumar Kurre, Aged About 11 Years Through Guardian Shri Heeraram Gurupanch, Aged About 68 Years, S/o Late Jaitu Sao, Permanent R/o Village- Telasi, District - Balodabazar- Bhatapara (C.G.) Present Address R/o- Dubey Colony, Mowa, Raipur, (Non Applicant), District : Raipur, Chhattisgarh ... Respondent (Cause title taken from CIS System) For Appellant : Mr. Shivendu Pandya, Advocate. For Respondent : None present, though served. Hon'ble Smt Justice Rajani Dubey J. Hon’ble Shri Justice Sachin Singh Rajput J. Judgment on Board Per, Rajani Dubey , Judge 25.04.2025 Digitally signed by AMIT PATEL 2 FA (MAT) No. 163/2022 1. This appeal is by the husband under Section 07 of the Guardians and Wards Act, 1890 (for brevity 'the Act of 1890') against the judgment dated 07.07.2022 passed by the Second Additional Principal Judge, Family Court, Raipur, C.G. in CMC Case No. 183/2019, whereby the application filed by husband under Section 07 of the Act of 1890 has been dismissed. 2. Brief facts of the case are that on 18.07.2008, the appellant’s marriage was solemnized with Smt. Papihara Gurupanch and out their wedlock, a girl child was born 16.05.2009, she was named as Khushbu Kurre, thereafter, the wife of the appellant and his daughter resided peacefully along with his family. On 30.08.2017, wife of the appellant died, afterwards the appellant was looking after his daughter’s education and fulfilled her other requirements. The respondent pressurized the appellant to leave his daughter and thereby he took away his daughter and brought her to Raipur with him and thereby he was demanding the appellant to bear the maintenance and expenses regarding education and well-being of his daughter, which was duly being received by the respondent. It is contended by the appellant that when the wife of the appellant was suffering from the disease, then all the expenditure i.e., medical expenses (Rs. 90,000/-) was borne by the appellant. After the completion of funeral of appellant’s wife, he along with his family members went to respondent’s house and after going back to their house, the respondent refused to give his minor daughter to him despite several efforts being made by the appellant and since then the respondent kept his daughter with 3 FA (MAT) No. 163/2022 him. The appellant contended in his application that he has no objection if the respondent looks after his daughter well-being and he further contends that under the scheme of Sukanya Samriddhi Yojana he deposits monthly amount i.e., Rs. 2,000/- in Post Office in the name of his daughter as savings account. The appellant is willing to keep his daughter with him and he will be much efficient to fulfill her requirements be it her maintenance, education, marriage etc. if she resides with him and he further contends that he is unable to fulfill her needs, as at present she is residing with the respondent, who is the maternal grandfather of the minor child. It was further pleaded that his financial status is good enough and it would be improper to deprive the child from love and affection of father. When it comes to the welfare of the child, being her father, he is the most suitable person to take care of the child, since it is evident that the respondent is unable to look after the minor child’s welfare, the respondent demands maintenance amount of the minor child from the appellant i.e., father of the child. The dispute in between the parties inflated and while the minor child was in custody of the respondent, appellant/father filed an application for custody of the minor girl child which was decided by the impugned order dated 07.07.2022, whereby the father/appellant was denied the custody, hence this appeal. 3. Respondent has filed his written statement and denied all the allegation made against him and pleaded that the daughter of the appellant resided only three days before the death of the wife of the appellant. He further contends that the daughter of 4 FA (MAT) No. 163/2022 the appellant is the single child of the appellant and wife of the appellant was subjected to cruelty, harassment and persecuted for being unable to deliver the second child. After the death of wife of the appellant, the appellant refused to maintain his daughter, therefore, the respondent took his daughter along with him. Further, it was pleaded by the respondent that the appellant solemnized second marriage with another woman after the death of his daughter (appellant’s wife) and both are in government service, on which they are not having sufficient time to maintain the minor daughter Khushbu Kurre. The respondent contended that he and his wife are showing their readiness to look after the daughter of the appellant for 24x7. Respondent further pleaded that the appellant is posted at very small village and there is no any proper facility of education, medical etc. the city of Raipur is best place for development of the minor child. He has also stated that he is mentally & physically fit and thus capable to take care of his daughter as also to provide proper education, however, the appellant had made a false application so that he could avoid paying maintenance, therefore, custody of minor child sought for by the husband may not be granted. 4. Learned Family Court after evaluating evidence adduced by both the parties, dismissed the application filed by the father/appellant under Section 07 of the Act of 1890 while giving the custody of minor child to the respondent- maternal grandfather taking into consideration the paramount welfare of the minor child. 5 FA (MAT) No. 163/2022 5. Learned counsel for the appellant/father submits that the Family Court ought to have considered the paramount interest of the minor child Ku. Khushbu. The Family Court has failed to appreciate that father is a natural guardian and is entitled to get the custody of minor child. According to the father, he is in a better position to provide proper education for bright future of daughter. It is contended that Family Court has failed to appreciate that the respondent and his wife are old aged persons and they are not having sufficient time to maintain the daughter of the appellant and without any cogent reason, the minor girl child was in possession of the respondent, thus, impugned judgment passed by Family Court cannot be sustained in law and deserves to be set aside. 6. We have heard learned counsel for the appellant and perused the record of the Family Court as well as the documents annexed with the appeal. 7. It is an admitted position before the learned Family Court that the marriage of the appellant was solemnized with Smt. Papihara Gurupanch on 18.07.2008 and out their wedlock one daughter Khusbu was born on 16.05.2009. The wife of the appellant and mother of the minor girl child died on 30.08.2017 and presently, the minor girl child is residing with her maternal grandfather/respondent. 8. Learned Family Court after appreciating the oral and documentary evidence of both the parties observed in paras 45 & 46 as under:- 6 FA (MAT) No. 163/2022 “ 45. इस ्ቚकार अभि लेख में उपलब्ध साቌኚय की उपरो्ሹानुसार किकये गये अभि वचन से यह तथ्य किनष्कቧኌ#त होता है किक खुशबू अपनी माता के मृत्यु के तीन कि+न पूव, से अनावे+क नाना के साथ किनवास कर रही है। यह तथ्य ी किनष्कቧኌ#त होता है किक खुशबू, अनावे+क के यहां रह रही है तब से आवे+क उससे किमलने उसके घर नहीं गया है। यह ी किनष्कቧኌ#त होता है किक आवे+क अपनी पु्ቔी खुशबू को रण पो#ण की राभिश +ेने से बचने के लिलए ही, उसे अपने साथ रखना चाहता है न किक स्नेहवश । यह तथ्य ी किनष्कቧኌ#त होता है किक अनावे+क सेवाकिनवृ्ቈ न्यायाधीश है अतः वह खुशबू के पालन पो#ण करने के लिलए स्ቌम है। यह तथ्य ी किनष्कቧኌ#त हुआ है किक अनावे+क खुशबू को अपने साथ रखना चाहता है ले ही उसका किपता आवे+क, खुशबू को रण पो#ण हेतु खचा, +े या ना +े। यह तथ्य ी किनष्कቧኌ#त हुआ है किक अनावे+क, खुशबू को अं्ቇेजी माध्यम के स्कू ल एम.जी.एम. रायपुर में किवगत पांच व#? से स्वयं के खच, से पढ़ा रहा है। यह तथ्य अवयस्क खुशबू कु रA को अनावे+क किकसी ्ቚकार से ्ቚताडिCत करता है, यह तथ्य किनष्कቧኌ#त नही हुआ है। उपरो्ሹ समस्त तथ्यों के परिरपेቌኚय में अवयस्क खुशबू को उसके कल्याण के लिलए अनावे+क के आडिधपत्य से लेकर आवे+क के संर्ቌण में कि+या जाना उडिचत ्ቚतीत नही होता है। फलस्वरूप किवचारणीय किबन्+ु क्या आवे+क, अल्पवय खुशबू कु रA को संर्ቌण में ्ቚा्቎ करने का अडिधकारी है ? का किनष्क#, "नहीं" में कि+या जाता है। (46) आवे+क सुरेश कु रA, अवयस्क खुशबू कु रA का ्ቚाकृ ‌डितक किपता है, अतः उसे खुशबू कु रA से किमलने के अडिधकार से वंडिचत नहीं किकया जा सकता है। आवे+क सुरेश कु रA, अनावे+क को पूव, सूचना +ेकर खुशबू कु रA से किमल सकता है।" 9. It is evident from statements of both the parties that minor daughter is residing with her maternal grandfather/respondent since her childhood. Appellant/father stated in his deposition that he performed second marriage and out of that wedlock, he has one boy child, aged about 8 years and he has also admitted this fact that when the respondent filed an application for her daughter’s maintenance, then he filed this application for custody of her daughter. 10.The learned Family Court rightly finds that the welfare of minor girl child is with her maternal grandfather/respondent. 11.This Court observed in the matter of Smt. Neha Sharma and another vs. Kaushal Kishore Sharma, judgment passed in FA (MAT) No. 115 of 2022. 7 FA (MAT) No. 163/2022 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 7 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 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 8 FA (MAT) No. 163/2022 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] 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, 9 FA (MAT) No. 163/2022 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:- “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.” 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 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. 12.In light of the above judgment, looking to the facts and circumstances of the case, it is evident that appellant is the father of the minor child and minor child is now aged about 16 10 FA (MAT) No. 163/2022 years, she is living with her maternal grandfather/ respondent since her childhood, the findings arrived at by learned Family Court with respect to the custody of minor child to be with her maternal grandfather is hereby maintained, but we are of the opinion that as the appellant is the father of the minor child, therefore, we hereby order to facilitate grant of visitation and contact rights to him as under:- “ (i) The appellant/father and respondent/maternal grandfather would be able to engage with the child on a suitable video conferencing platform for one hour every Saturday/Sunday, and whenever his minor child desires. (ii) The appellant/father and respondent/maternal grandfather in order to facilitate the video conferencing between minor child shall procure smart phone which would facilitate the inter se video calling and no such excuses be made regarding not complying with the same. (iii) During the holidays/vacation covering more than 2 weeks, minor child will be allowed to be in the company of father for long visitation of 5-10 days. The period shall be fixed by the appellant/father and the same shall be intimated to the maternal grandfather beforehand so that he can permit the minor child to meet her father and shall not be able to create any hindrance amongst them. (iv) During festivals the father may join the company of the child at the place of the maternal grandfather or any independent venue which must be adaptable to his daughter and spend the festival holidays with the child for a day.” 13.Let a decree be drawn up accordingly. 14.No order as to cost. Sd/- Sd/- (Rajani Dubey) (Sachin Singh Rajput) Judge Judge AMIT PATEL