1 2025:CGHC:18863-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FAM No.40 of 2019 1 - Shri Vivek Madan S/o Late Shri S. C. Madan Aged About 42 Years R/o Vaishali Nagar, In Front of Tarun Contractor, Kamla College Road, Rajnandgaon, Chhattisgarh Appellant versus 1 - Smt. Rani Madan W/o Shri Vivek Madan Aged About 33 Years Housewife, R/o House Of Vinita, Vaishali Nagar Kamla College Road, Rajnandgaon, Chhattisgarh, At Present R/o House No.10/11 of R.E. Chauhan In Front Of Bhatia Cycle Store, Rajnandgaon, Chhattisgarh............(Applicant) 2 - Vinita Madan D/o Late S.C. Madan R/o Vaishali Nagar, In Front Of Tarun Contractor, Kamla College Road, Rajnandgaon, Chhattisgarh.............(Non-Applicant No.2) Respondent(s) For Appellant : Mr. Aditya Bhardwaj, Advocate For Respondent No.1 : Mr. Rakesh Kumar Thakur, Advocate Hon’ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Sachin Singh Rajput Judgment on Board 25.04.2025 Per Rajani Dubey J. Digitally signed by RAMAKANT NIRALA 2 1. The present appeal has been filed by the appellants against the judgment and decree dated 22.11.2018 passed by the learned Family Court, Rajnandgaon (C.G.) in Civil Suit No.107-A/2013, whereby the appellant husband’s case as well as respondent wife’s case for custody of children has been rejected. 2. Brief facts of the case are that the marriage between the appellant and the respondent No.1 was solemnized on 17.11.2007 and out of their wedlock, one daughter Vaniya and one son Veer were born. By the time, the dispute arose between the parties, as a result of which the respondent No.1 started living separately along with his son Veer, whereas daughter Vaniya was residing with her father. Subsequently, the respondent No.1 wife filed application before the learned Family Court under Section 25 of the Guardian and Wards Act, 1890 for custody of her minor daughter Vaniya, in which the appellant husband also filed counter case for custody of his minor son. The learned Family Court after appreciating the oral and documentary evidence of both the parties dismissed the case filed by the respondent wife as well as counter case filed by the appellant husband, against which the present appeal has been filed by the appellant husband. 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 3 impugned order has failed to appreciate the oral and documentary evidence adduced by the appellant husband. 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 appellant and the evidence, which shows that the future and welfare of the minor son is not safe in the hands of respondent wife. 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. He further submits that the respondent no.1 has filed an application u/s 125 of Cr.P.C. for grant of maintenance before the learned Trial Court, which itself shows that she is unable to maintain herself and his son. She is not well educated lady and the appellant husband can give better treatment and can take care of day to day livelihood of his son. Therefore, the appeal deserves to be allowed. 4. Learned counsel for the respondent supports the impugned order passed by the learned Family Court with regard to not granting custody of minor son to the appellant husband. The learned Family Court has minutely appreciated the oral and documentary evidence available on record and rightly passed the order not granting custody of son in favour of the appellant husband. She being the mother of the minor son can better take care of him. 4 However, the learned Family Court has committed error in not granting custody of minor daughter to the respondent wife. Therefore, the appeal filed by the appellant husband seeking custody of the minor son is liable to be dismissed. 5. Heard learned counsel for the parties and perused the material available on record. 6. It is an admitted position in this case that the marriage between the appellant and the respondent No.1 was solemnized on 17.11.2007 and out of their wedlock, one daughter Vaniya and one son Veer were born. By the time, the dispute arose between the parties, as a result of which the respondent No.1 started living separately along with his son Veer, whereas daughter Vaniya was residing with her father. It is also not disputed that presently daughter Vaniya is residing with his father, whereas son Veer is living with his mother. 7. The respondent No.1 wife filed application before the learned Family Court under Section 25 of the Guardian and Wards Act, 1890 for custody of her minor daughter Vaniya, in which the appellant respondent also filed counter case for custody of his minor son. 8. The learned Family Court after appreciating the oral and documentary evidence of both the parties observed in paras 30, 31 & 32 as under:- 5 “30. इस ्ቚकरण ेሰ य्ቍपि वादी वाश क नैसपिक पि ता है इस नैता वा उनैक नैसपिक सर्ቌक है पिक ता न्ययलय ቛኋर अ्ቚ्቎वाय क सर्ቌक पिनैय्ሹ करता सेሰय न्ययलय क$ अ्ቚ्቎वाय क सवा%्ቈेሰ कल्यण क$ ध्यनै ेሰ रखनै है$ता है। बलरेሰ ेሰडल ब. रजनै ेሰडलनै, ए. आई. आर. 1964 टनै 505' क वादी ेሰ पिनैण2ता पिकय य है पिक ्ቚक3 पिताक सर्ቌक क4 शपि्ሹय ताथा अवायस्क क कल्यण क$ एक सेሰनै स्थानै पिदीय जनै चापिहैए और दी$नै9 ेሰ सघ्ቧ है$, ता$ अवायस्क क कल्यण क$ सवा% रिरता ्ቚदीनै क4 जए। 31. य्ቍपि उ्ቈरखदी क 1 वाश उ्ቛ वार ेሰदीनै क नैसपिक सर्ቌक है पिकन्ता वाश उ्ቛ वार ेሰदीनै बचा नै स अ नै ेሰ क सथा पिनैवासरता है। अता> उ र$्ሹ न्ययदृኋ᭘ता एवा उभय ्ቌ क सቌኚय क सम्ेሰलिलता अथान्वायनै क आधार र भ बलक क सवा%्ቈेሰ कल्यण क$ दीखता हैFए अ्ቚ्቎वाय क शरर क सर्ቌक पिनैय्ሹ पिकय जनै है अता> उ्ቈरवादी क. 1 अ नै सर्ቌण ेሰ ्ቚ्቎ करनै क अलिधाकर नैहैG है। अता> वादी ्ቚश्नै क 3 क पिनैष्क्ቧ "अ्ቚेሰपिणता" ेሰ पिदीय जता है। 32. उ र$्ሹ ताथ्य9 एवा सቌኚय पिवावाचानै क आधार र यहै स् ኋ᭘ है पिक वादी अ नै वादी एवा उ्ቈरखदी अ नै ्ቚपितादीवा ्ቚेሰपिणता करनै ेሰ अस्ቛल रहै है। अता> वादी क वादी "पिनैरस्ता" पिकय जता है एवा उ्ቈरखदी क ्ቚपितादीवा "पिनैरस्ता" पिकय जता है। वादी यपिदी चाहै ता$ उस अ नै ቔኍ वापिनैय ेሰदीनै स पिेሰलनै क अलिधाकर रहै एवा उ्ቈरवादी क$ अ नै ቔኍ वाश उ्ቛ वार ेሰदीनै स पिेሰलनै क अलिधाकर रहै। उभय ्ቌ अ नै-अ नै वादी व्यय वाहैनै कर ।" 9. It is clear from the impugned judgment that the learned Family Court found that son Veer was living with his mother from his childhood and daughter Vaniya was living with her father when she was toddler and accordingly dismissed both the cases filed by the mother and father for custody of their children, however liberty was given to the parties to meet their children. 6 10. The appellant-husband-father filed this appeal on this ground that the respondent is not well educated lady and the appellant father can give better treatment and can take care of day to day livelihood of his son and the respondent wife is from other religion and she is trying to convert his son from Hindu Religion to Christian Religion. 11. We also tried to settle the matter. We tried to mediate the matter but mediation was failed as per mediation report dated 26.10.2024 between both the parties. 12. It is clear from the statement of both the parties before the learned Family Court that husband and wife are living separately since long and the learned Family Court rightly dismissed the application of the appellant husband and the respondent wife looking to the welfare of both the wards. 13. This Court vide judgment dated 04.04.2025 in FA (MAT) No.115/2022 in between Smt. Neha Sharma and another vs Kaushal Kishore Sharma held in paras 10 & 11 as under:- “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 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 8 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, 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 9 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.” 14. In light of the above and looking to the facts and circumstances of the case, it is clear that the both wards are living with their mother and father since their childhood and as per mediation, they are not physically and mentally ready to go in the custody of other parent. It is also clear that both the parties are living separately since long. 15. 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 10 after taking into account the overall facts and considering the paramount interest of the children, we are of the opinion that the learned Family Court rightly passed the impugned judgment and decree, but the finding with regard to visitation rights requires some modification. 16. We hereby order to facilitate grant of visitation and contact rights to each parent as under:- “(i) The appellant father and respondent mother 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 parents in order to facilitate the video conferencing between children shall procure smart phones which would facilitate the inter-se video calling. (iii) During long holidays/vacation covering more than 2 weeks, both children will be allowed to be in the company of father/mother for long visitation of 5- 10 days. The period shall be fixed by both parents after due consultation with each other. (iv) During the meeting of the children, parents will try to keep both children together. 11 (v) During festivals the father may join the company of the children at the place of the mother/father or any independent venue and spend the festival holidays with both children. (vi) Both the parents shall ensure that brother and sister’s festivals such as Rakhi, Diwali, Bhai Dooj, etc. is celebrated by both the children together. (vii) During the meeting of the children, the parents shall not create any kind of hindrance.” 17. In the result, the appeal is partly allowed. 18. Let decree be drawn accordingly. 19. No order as to cost. Sd/- Sd/- (Rajani Dubey) (Sachin Singh Rajput) Judge Judge Nirala