2026:JHHC:20888-DB 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI F.A. No. 153 of 2019 Sakuntala Devi, aged about 64 years, W/o Late Lakshman Modi, resident of Village-Domchanch, in front of Deepak Cement Centre, P.O. & P.S.-Domchanch, District-Koderma. Respondent No.3/Appellant Versus 1.Rabindra Kumar Burnwal, aged about 36 years, son of Indradeo Modi, resident of village-Chandwar, Station Road Pipadih, P.O. & P.S. Chandwara, District- Koderma. .... Petitioner/Respondent 2.Sunita Devi, aged about 30 years, W/o Rabindra Kumar Burnwal at present W/o Dheeraj Kumar Jain, D/o Late Lakshman Modi, R/o Ahirana, Ram Ghat, Ayodhaya, P.O. & P.S. Kotwali Ayodhaya, District – Faizabad (Uttar Pradesh. ...Opp.Party/Performa Respondent/Respondent ------- CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA ------- For the Appellant : Mr. Sahil, Advocate For the Respondent : Mrs. Rashmi Kumar, Advocate ---------------------------- CAV/Reserved on 03.07.2026 Pronounced on 14/07/2026 Per Sujit Narayan Prasad, J. Prayer: 1. The instant appeal, under Section 19(1) of the Family Court Act, 1984, is directed against the order/judgment dated 18.02.2019, passed by the learned Principal Judge, Family Court, Koderma in Original Suit No. 22 of 2018, whereby and whereunder the petition filed by the respondent no. 1 under Section 25 of the Guardian and Wards Act, 1890 for custody of minor children has been 2026:JHHC:20888-DB 2 allowed holding that the respondentno.1 being the natural guardian of minor Sarika Kumari is entitled for her custody. Brief facts of the case: 2. The brief facts of the case, as taken note in the impugned order, needs to be referred herein as under: 3. The petitioner, respondent no. 1 herein, was married with Sunita Devi [respondent no. 2 herein] in the month of April 2008 as per Hindu rites and customs prevailing in their caste. After the marriage they started living together as husband and wife and from the wedlock a female child was born on 30.05.2009 namely Sarika Kumari. 4. It is further stated that the respondent Sunita Devi while living in the matrimonial home since beginning her attitude was non-cooperative and sometimes, she also quarrels with the petitioner. The respondent left the company of the petitioner. The father of the respondent, namely, Lakshman Modi was having business of stone chips. He had proposed the petitioner for partnership business and for that said Lakshman Modi taken Rs. 2,65,000/- from the petitioner. 5. It is alleged that the father of the respondent cheated the petitioner and when the petitioner demanded money then as per the petitioner, he was falsely implicated in a case by 2026:JHHC:20888-DB 3 filing a complaint through the respondent-wife, Sunita Devi vide complaint case No. 482/2010, in which, the petitioner was found guilty and accordingly convicted and released from custody on 06.05.2015. 6. It has been stated that the petitioner came to know from the neighbour of Lakshman Modi when the petitioner was in custody that his wife Sunita Devi has performed second marriage with one Dheeraj Kumar Jain of village- Ahirana, Ramghat, Ayodhaya, P.S.- Kotawali Ayodhaya, District- Faizabad on 22.01.2014 as per Hindu rites and customs. It has been also stated that the respondent-Sunita Devi has blessed with a son from her second husband born on 22.11.2014. 7. The petitioner has stated that his wife Sunita Devi left her daughter Sarika Kumari uncared just like orphan with her father Lakshman Modi and mother Shakuntala Devi who were respondent no-2 and 3 before the family court. Lakshman Modi and Shakuntala Devi are parents of Sunita Devi. 8. It is stated that the minor child of the petitioner is not being properly taken cared in their house. The petitioner being father and natural guardian of Sarika Kumari legally entitled to take custody of minor. In the plaint, further statement has been made that the mother of Sarika 2026:JHHC:20888-DB 4 Kumari has already solemnized second marriage and the minor child has been deserted by the respondent and said Sarika Kumari is being treated as family servant in the house of maternal grand-parents. On the aforesaid ground prayer has been made that the minor child would be better cared under the petitioner, so petitioner prayed for the custody of the minor being natural guardian. 9. Notices were issued to the respondents. Although notice was served upon respondent No.1, Sunita Kumari [wife] through Speed-Post and publication in local newspaper but she did not appear, therefore, the suit proceeded ex- parte against her vide order dated 12.09.2018. 10. Respondent Nos. 2 and 3, the maternal grand-parents of the minor and father and mother of Sunita Devi respectively, appeared and filed their show-cause reply. 11. It has been replied that suit is not maintainable either in law or facts as such same is fit to be dismissed. It has been also stated that the petitioner [father of the ward] has no valid cause of action to bring the suit. It has been admitted that the respondent No.1 [Sunita Kumari] was married with the petitioner in the month of April 2008. It has been alleged that after few months of the marriage the petitioner started demanding additional dowry from the respondent No.1 and due to non-fulfillment of the demand 2026:JHHC:20888-DB 5 of additional dowry tortured started on the respondent No.1 in various ways. 12. The respondent no. 2 and 3 have also replied that from the wedlock of the petitioner and respondent No.1 they blessed with a female child on 30.05.2009. It has been further replied that the petitioner never cared the newly born child nor provided any expenses during the birth of the child. 13. The entire expenses were born by the father of the respondent No-1, Sunita Devi. It has been stated that the respondent No-1 was ousted from the matrimonial home along with the newly born baby born from the wedlock. It has further been stated that the petitioner was convicted on the complaint of the respondent No.1, Sunita devi, and was in judicial custody. 14. It has been denied that the Sunita Devi had performed second marriage with Dheeraj Kumar Jain. It has further been submitted that even Sunita Devi is facing starvation as she has no source of income. It has been admitted by the respondents that they are the maternal grand-parents of Sarika Kumari. It has been also replied that the respondent No.2 and 3 have made entire expenses and maintaining Sarika Kumari and Sarika Kumari is studying in Central Convent Public School Domchanch in Class-IV. 2026:JHHC:20888-DB 6 It has been contended that Sarika Kumari is being cared in better way under the guardianship of respondent Nos. 2 & 3 and the respondent have every apprehension that if the custody of minor Sarika Kumari will be given to the petitioner, then her life will be ruined. On the aforesaid ground, contention was made in the written statement that the petitioner is not entitled to get the custody of the child. 15. The learned family court, on the basis of pleading available on record, framed the issues, and evidences were led on behalf of parties. 16. The learned Family Court, upon due consideration of the settled principle governing custody that the welfare of the minor child is the paramount consideration and upon appreciation of the evidence adduced by both parties, was pleased to allow the suit. 17. Aggrieved thereby, the present appeal has been preferred by respondent no. 3, who is the appellant herein, being the maternal grandmother of the minor female child. Submission of learned counsel for the appellant: 18. The learned counsel for the appellant, who is maternal grandmother of the child has contended that the learned family court misconstrued the pleadings and evidences 2026:JHHC:20888-DB 7 adduced by the parties resulting into perverse findings, which vitiates the impugned judgment. 19. Further submission has been made that the learned family court has failed to appreciate the evidences on record, which fully supported the contention of the appellant with respect to the fact that the respondent is a man of having criminal background and is a convicted person, whose conviction was even sustained up-to appellate court and after serving the sentence, he has come out from the jail. 20. Further submission has been made that the learned Family Court did not appreciate the fact that respondent- father is a convicted person and had never taken care of his minor female child, namely, Sarika Kumari, right from her birth. Even the learned family court did not appreciate the evidence by the minor female child [D.W. 4-Sarika Kumari], who in her deposition has specifically deposed that she had not seen her father till date and is residing in her maternal grandmother‘s house and is studying in a Convent School. 21. Even the principal of the school, where the ward was studying, who has been examined as court witness no. 1, has deposed that the ward is topper in her class and is regular student, which shows that she is being properly cared at the house of the appellant and even the ward 2026:JHHC:20888-DB 8 herself showed her willingness to stay with the appellant and not with the respondent-father which fact ought to have considered by the learned family court because of the reason that right from the birth of Sarika Kumari, the respondent no.1 never come in contact with her. 22. Submission has been made that admittedly the respondent no. 1 is the biological father of said Sarika Kumari, but he had never discharged the duty of father rather he committed cruelty upon her being a criminal minded person and had never taken care of her daughter and if the custody of child is given to him, there is every likelihood that her life would be ruined and no proper education could be extended to her which she is getting in her maternal grandmother‘s house, but that aspect of the matter has completely been lost sight of by the learned family court while passing the impugned judgment. 23. Further submission has been made that the appellant had sufficient mean to provide every sort of facilities for the welfare of the minor female child [Sarika Kumari] and even the appellant had discharged the above stated duties right from her birth and the minor female child also desirous to live with her maternal grandmother‘s as she is emotionally attached with her. 2026:JHHC:20888-DB 9 24. Therefore, merely on the ground that the petitioner, respondent no. 1 herein, did not perform second marriage and is a natural father of the minor female child, Sarika Kumari, the learned family court while granting custody of the minor female child to the petitioner/respondent no. 1 herein, has completely ignored the evidences adduced on behalf of appellant. 25. Further submission has been made that soon after passing of the impugned judgment and decree, the petitioner, the respondent no. 1 herein, performed second marriage with one Kajal Kumari on 08.03.2019, which shows the intention of the petitioner, and it is hard to believe that a step-mother would take care of child other than her own. 26. Learned counsel for the appellant has further submitted that when the very basis of passing impugned judgment that the petitioner-father had not performed second marriage has now gone, the impugned judgment requires interference by this Court. 27. The learned counsel for the appellant based upon the aforesaid ground has submitted that since there is no consideration of these facts by learned trial court, as such the impugned judgment requires interference by this Court. 2026:JHHC:20888-DB 10 Submission of learned counsel for the respondent no. 1: 28. Per contra, learned counsel for the respondent no. 1, the father of the ward, has taken the various grounds in defending the order passed by the learned family court. 29. Submission has been made that the wife of respondent no.1 namely Sunita Devi, was ill-behaviour lady and she left the company of the petitioner (respondent no.1 herein). It is stated that the father of the Sunita Devi, namely, Lakshman Modi was having business of stone chips, in which, he had proposed the petitioner/respondent no.1 for partnership business and for that said Lakshman Modi taken Rs. 2,65,000/- from the petitioner/respondent no.1. 30. But the father of the Sarita kumari cheated the petitioner/respondent no.1. and when the petitioner demanded money then he was falsely implicated in a case by filing a complaint through the respondent-wife, Sunita Devi vide complaint case No. 482/2010, in which, the petitioner was convicted and released from custody on 06.05.2015. 31. It has been stated that when the respondent no.1/petitioner was in custody that his wife Sunita Devi performed second marriage with one Dheeraj Kumar Jain on 22.01.2014 as per Hindu rites and customs, wherefrom 2026:JHHC:20888-DB 11 she blessed with a son from her second husband born on 22.11.2014. 32. Further submission has been made that his wife Sunita Devi left her daughter Sarika Kumari uncared just like orphan with her father Lakshman Modi and mother Shakuntala Devi who were respondent no-1 and 2 before the family court. 33. Learned counsel for the respondent no. 1 has further submitted that the minor child of the petitioner/ respondent, since was not being properly cared, as such, the petitioner/respondent being the father and natural guardian of Sarika Kumari is legally entitled to take custody of minor female child, and the said fact has been taken note of learned family court and accordingly custody of minor female child has been handed over to the petitioner/respondent i.e. father of female minor child. 34. The learned family court based upon the aforesaid ground and on consideration of the aforesaid fact has passed the impugned judgment which requires no interference by this Court. Analysis 35. We have heard learned counsel for the parties and gone through pleading available on record as also the finding recorded by learned family court. 2026:JHHC:20888-DB 12 36. This Court, before going to examine as to whether the finding recorded by learned family court allowing the custody of the minor daughter to the father, the respondent no. 1 herein, requires interference needs to refer herein the provision of law as provided under the Hindu Minority and Guardianship Act, 1956 and as also the Guardians and Wards Act, 1890. 37. Section 6 of the Hindu Minority and Guardianship Act, 1956 deals with natural guardian of a Hindu minor, Section 9 thereof deals with the testamentary guardians and their powers and Section 13 deals with the provision of welfare of the minor to be paramount consideration. For ready reference, these provisions are quoted as under: “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 2026:JHHC:20888-DB 13 (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. 9. Testamentary guardians and their powers.—(1) A Hindu father entitled to act as the natural guardian of his minor legitimate children may, by will appoint a guardian for any of them in respect of the minor‟s person or in respect of the minor‟s property (other than the undivided interest referred to in section 12) or in respect of both. ( 2) An appointment made under sub-section (1) shall have no effect if the father predeceases the mother, but shall revive if the mother dies without appointing, by will, any person as guardian. (3) A Hindu widow entitled to act as the natural guardian of her minor legitimate children, and a Hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of the fact that the father has become disentitled to act as such, may, by will, appoint a guardian for any of them in respect of the minor‟s person or in respect of the minor‟s property (other than the undivided interest referred to in section 12) or in respect of both. (4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may; by will, appoint a guardian for any of them in respect of the minor‟s person or in respect of the minor's property or in respect of both. (5) The guardian so appointed by will has the right to act as the minor‟s guardian after the death of the minor‟s father or mother, as the case may be, and to exercise all the rights of a natural guardian under this Act to such extent and subject to such restrictions, if any, as are specified in this Act and in the will. (6) The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage. 2026:JHHC:20888-DB 14 13. Welfare of minor to be paramount consideration.—(1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. (2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.” 38. It needs to refer herein that under Section 6 of the Hindu Minority and Guardianship Act, 1956, it has specifically been mentioned, as per the relevancy of the case herein that the natural guardians of a Hindu minor; in the case of an unmarried girl is —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. But, herein, the female child was 9 years at the time of filing of the suit. 39. Now, coming to Section 9 wherein also, which speaks about testamentary guardians and their powers, which also provided that a Hindu father shall be entitled to act as the natural guardian of his minor legitimate children. 40. However, Section 13 of the Act speaks about welfare of minor is of paramount consideration and it has been specifically mentioned that in case of appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount 2026:JHHC:20888-DB 15 consideration. Further, it has in unequivocal term has mentioned that no person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor. Meaning thereby, it is the bounden duty of the Court to ascertain of whose custody the welfare of the minor would be and then only, the custody of the minor child is to be given. 41. In this regard, it further requires refer herein the provisions of Guardians and Wards Act, 1890, wherein the word ‗minor‟, ‗guardian‟ and also the „the power of the court to make order as to guardianship‘ has been mentioned. For ready reference, the relevant provision of the Act, 1890 is quoted as under: “4. (1) “minor” means a person who, under the provisions of the Indian Majority Act, 1875, (9 of 1875) is to be deemed not to have attained his majority: (2) “guardian” mean‟s a person having the care of the person of a minor or of his property, or of both is person and property: 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 2026:JHHC:20888-DB 16 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. 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. (3) If the minor is old enough to form an intelligent preference, the Court may consider that preference. 1 * * * * * (5) The Court shall not appoint or declare any person to be a guardian against his will.” 42. The law, therefore, is well settled that even though the father is the natural guardian as stipulated in the statute but the paramount consideration in the matter of handing over the custody of the child is welfare of the child. 43. The law relating to custody of minors has received an exhaustive consideration by the Hon‘ble Apex Court in a series of pronouncements. In the case of Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 the principles of English and American law in this regard were considered by Hon‘ble Apex Court to hold that the legal 2026:JHHC:20888-DB 17 position in India is not in any way different. Noticing the judgment of the Bombay High Court in Saraswatibai Shripad Ved v. Shripad Vasanji Ved [AIR 1941 Bom 103] , Rosy Jacob v. Jacob A. Chakramakkal (1973) 1 SCC 840 and Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka (1982) 2 SCC 544, the Hon‘ble Apex eventually concluded in paras 50 and 51 which reads as under: “50.That 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 Mausami Moitra Ganguli case [Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673] , the court has to give due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over 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 and 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.” 2026:JHHC:20888-DB 18 44. Thus, the Hon‘ble Apex Court has categorically held that while considering the issue of custody of the minor child the court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. Further it has been held that the Court should not emphasis only on what the parties say rather the welfare of the minor should be paramount consideration. Further the Hon‘ble Apex Court has opined that the Court has to give due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. 45. The Hon‘ble Apex Court in the aforesaid Judgment interpreted the word ‗welfare‘ used in Section 13 of the Act and has observed that it must be taken in its widest sense, though the provisions of the special statutes which govern the rights of the parents and 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. 46. It needs to refer herein that in child custody matters, the court's "parens patriae" jurisdiction empowers the Court to act as a guardian for the child, prioritizing their best interests above all else. This principle, allows the court to 2026:JHHC:20888-DB 19 intervene and make decisions that protect the child's welfare, even if it means overriding the wishes of the parents or guardians. 47. In the case of Nil Ratan Kundu v Abhijit Kundu, 2008 (9) SCC 413 the Hon‘ble Apex Court has held that in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human 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 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 2026:JHHC:20888-DB 20 should rest with the court as to what is conducive to the welfare of the minor. 48. In the case of Yashita Sahu v State of Rajasthan, (2020) 3 SCC 67, the Hon‘ble Apex Court has propounded that the welfare of the child is paramount in matters relating to custody. In this context, we may refer to Para 22 thereof, which reads as follows: 22. A child, especially a child of tender years requires the love, affection, company, protection of both parents. This is not only the requirement of the child but is his/her basic human right. Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. A child is not an inanimate object which can be tossed from one parent to the other. Every separation, every reunion may have a traumatic and psychosomatic impact on the child. Therefore, it is to be ensured that the court weighs each and every circumstance very carefully before deciding how and in what matter the custody of the child should be shared between both the parents. Even if the custody is given to one parent the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical and psychological contact with any one of the two parents. It is only in extreme circumstances that one parent should be denied contact with the child. Reasons must be assigned if one parent is to be denied any visitation rights or contact with the child. Courts dealing with the custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights.‟ 49. In the case of Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471, the Hon‘ble Apex Court has observed that it is 2026:JHHC:20888-DB 21 the welfare and interest of the child and not the rights of the parents which is the determining factor for deciding the question of custody and the question of welfare of the child has to be considered in the context of the facts of each case and decided cases on the issue may not be appropriate to be considered as binding precedents. For ready reference the relevant paragraph of the aforesaid judgment is being quoted 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 the 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 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 parent concerned 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 emphasised 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. 50. It is settled position of law that there cannot be any straitjacket formula in the matters of custody. „Welfare of the child‟ is of paramount importance, reference in this regard may be taken from the judgment rendered by the 2026:JHHC:20888-DB 22 Hon‘ble Apex Court in the case of Gautam Kumar Das v. State (NCT of Delhi), (2024) 10 SCC 588. 51. In the case of Shazia Aman Khan v. State of Orissa, (2024) 7 SCC 564 the Hon‘ble Apex Court while referring the ratio of Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413 has observed that welfare of the children is to be seen and not the rights of the parties, the relevant paragraph of the aforesaid judgment is being quoted as under: “19. In Nil Ratan Kundu v. Abhijit Kundu [Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413] , 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 : (SCC pp. 428-29, paras 52 & 55) ―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 the 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 human 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 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, 2026:JHHC:20888-DB 23 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. *** 55. We are unable to appreciate the approach of the courts below. This Court in a 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) 21. This Court in Roxann Sharma v. Arun Sharma [Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318 : (2015) 4 SCC (Civ) 87] , 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 18 are reproduced hereunder : (SCC p. 328) ―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.‖ 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. Anupma Tandon [Ashish Ranjan v. Anupma Tandon, (2010) 14 SCC 274 : (2011) 4 SCC (Civ) 948] , this Court held as under : (SCC p. 282, para 19) ―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 2026:JHHC:20888-DB 24 statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor.‖ 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 [Rohith Thammana Gowda v. State of Karnataka, (2022) 20 SCC 550 : 2022 SCC OnLine SC 937] case. It was held as under : (SCC para 18) “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.” 52. Thus, from the aforesaid settled position of law it is evident that the consideration governing the custody of children is the ―welfare of the children‖. Further, the welfare of child is determined neither by economic affluence nor a deep mental or emotional concern for the well-being of the child. The answer depends on the balancing of all these factors and determining what is best for child's total well-being. 53. In the backdrop of the provisions of law and judicial pronouncements, in order to assess the welfare of the 2026:JHHC:20888-DB 25 minor child, we have gone through the oral evidence adduced by the parties. 54. PW-1, Sanjeev Kumar, in his testimony has stated that he is engaged in teaching profession for the last 15 years. He knows Rabindra Kumar Burnwal; Sunita Devi; Laxman Modi and Shakuntala Devi. Sunita Devi is the wife of Rabindra Kumar Burnwal and Shakuntala Devi and Laxman Modi is the father-in-law and mother-in-law of Rabindra Kumar Burnwal. The marriage of Sunita Devi and Rabindra Kumar Burnwal was solemnized in the year 2008 and after one year of marriage they were blessed with one daughter. He further deposed that father of Sunita Devi, namely, Laxman Modi was engaged in business of Crusher and Rabindra Kumar Burnwal gave Rs. 2,65,000/- for making partner of business but Laxman Modi did not make him partner. He further deposed that when Rabindra Kumar Burnwal demanded his money back, Laxman Modi made a case lodged under Section 498A by her daughter Sunita Devi, in which Rabindra had to go to Jail. After that Sunita Devi solemnized second marriage with one Dhiraj Kumar Jain. He has further deposed that daughter of the petitioner [Rabindra Kumar Burnwal], namely, Sarika Kumari was kept by Laxman Modi and her mother Sunita Devi left her daughter Sarika Devi after solemnizing second marriage. 2026:JHHC:20888-DB 26 He has further submitted that the Rabindra Kumar Burnwal has sufficient means to take care of his daughter and he has paternal property also. 55. In cross-examination, though he has stated that Sunita Devi has solemnized second marriage but he did not go there. 56. P.W. 2-Indradeo Modi, is the father of the petitioner. He has also fully supported the case of the petitioner and nothing comes in his cross-examination. 57. P.W.-2 has deposed that petitioner is his son whereas the respondent No.2 & 3 are his Samdhi. The witness has deposed that Sunita Devi, the respondent No.1 was the wife of the petitioner. It has been also stated that Lakshman Modi, the respondent No.2 died during the proceeding of the case. The marriage between petitioner and the respondent No.1 was solemnized in the year 2008 and from the wedlock Sarika Kumari was born who is presently aged about nine and half years old. It has been deposed that the petitioner and the father of the Sunita Devi were partners in business of crusher mill, when the petitioner wanted to withdraw from partnership and demanded his share of money from the respondent No.2, then in connivance with his daughter, the petitioner was falsely implicated in dowry case. It has been also deposed 2026:JHHC:20888-DB 27 that when the petitioner was in custody, the said Lakshman Modi solemnized the second marriage of Sunita Devi with one Dhiraj Kumar Jain without seeking divorce from the petitioner and presently the said Sunita Devi is residing in Ramghat Ayodhya in village Ahirana. It is also deposed that from the wedlock of second marriage there is a son born to respondent no-1. The witness has deposed that the maternal grandparents of the Sarika Kumar are old aged, so respondent no-3 is not able to properly care the minor Sarika Kumari. There is nothing relevant has come in his cross-examination of this witness to discuss here. 58. P.W. 3-Rabindra Kumar Burnwal is the petitioner himself, who has deposed that he was married with Sunita Devi in the year 2008 as per Hindu rites and customs and from the wedlock he was blessed with a daughter who is presently aged about nine and half years old. The witness has deposed that respondents No. 2 and 3 are father-in- law and mother-in-law of the witness. The father-in-law the respondent no-2 has already died during the pendency of the case. The witness has also stated that the dispute arose between him and the said Lakshman Modi as because they were partners in a crusher mill business and when the petitioner demanded money of his share to withdraw from partnership business then the witness 2026:JHHC:20888-DB 28 (Petitioner) was falsely implicated in a dowry case by his wife on the instruction of her father. The petitioner was convicted U/s 498A of IPC and now released from custody after serving the sentence. It has been also deposed that the respondent No.1 was married with one Dhiraj Kumar Jain resident of Ahirana Ramghat Ayodhya on 22.01.2014 and from the second marriage, the wife of the witness has blessed with a son. 59. The witness has deposed that after the marriage his wife, the respondent No.1 left the daughter born from the wedlock namely Sarika Kumari with her parents and went to her matrimonial home at Ayodhya. The witness has further deposed that he has sufficient money to maintain his daughter. It has been deposed that Shakuntala Devi is not able to properly take care of his daughter. The witness is not even allowed to meet his daughter when he had gone to visit on 06.05.2015. 60. In his cross-examination, he has deposed that since August 2009, he is living separately from the respondent no-1 and he is not in contact. The witness has stated that he has made entire expenses in the birth of his daughter Sarika Kumari. The witness has denied the suggestion that he has deposed falsely in the affidavit. 2026:JHHC:20888-DB 29 61. P.W.- 4 Sushila Devi, is the mother of the petitioner. She has deposed identical facts in her affidavit as stated by the P.W.-2 and P.W.-3. So, the same is not being reproduced for the sake of brevity. 62. The other side has also adduced their evidence on affidavit. 63. Out of that the most important witnesses is the mother-in- law of the petitioner-respondent, [the appellant herein] who has been examined as DW-3 Shakuntala Devi, has also admitted the marriage of Sunita Devi with Ravindra Kumar Burnwal, the petitioner-appellant herein in the year 2008 and also admitted that a female child namely Sarika Kumari born out of their wedlock who was aged about nine years at the time of deposition. She (DW-3) has deposed that due to the dispute between the petitioner and his wife (Respondent no-1) was brought to the parental house where she was blessed with a female child and the entire expenses during delivery was born by the respondents. She also deposed that after the death of her husband she is looking after the child and bearing entire expenses of her study and other needs. 64. She further deposed that there is no danger to the life of said Sarika Kumari. In her cross-examination, the witness has disclosed that the admission of Sarika Kumar was 2026:JHHC:20888-DB 30 done by the husband of the witness. She admitted the name of father of Sarika Kumari is Ravindra Prasad Burnwal. It is also admitted by the witness that this case has been filed by the petitioner after release from judicial custody. The petitioner was convicted in case No. 440/2015. 65. DW-4- Sarika Kumari, is the minor daughter of petitioner respondent (herein) who has deposed that she has come to the court from her maternal grand-parents house. She stated that till date she has not seen her father. It is also stated that she is studying in class-IV in Central Convent Public School, Giridih road, Domchanch. The school fee is Rs. 500/-, the fee is paid by the maternal grand-mother of the witness. 66. In her cross-examination, she has stated that her mother is not staying with her. In paragraph-7 of her cross- examination, the witness has admitted that she has occasionally seen her mother. It is also admitted by the witness that she has never seen her mother staying with her. It is also admitted that her maternal grand-mother is not doing anything. The witness deposed that she has two maternal uncle who are looking after the petitioner. The children of maternal uncle are not studying in the school in which the witness is studying. The sons of the maternal 2026:JHHC:20888-DB 31 uncle are studying in GS Public School and Lakshya Convent School. 67. The other two witnesses examined as DW-1 Manohar Pandey and DW- 2 Mathura Modi have also stated almost same facts which are mentioned in the show-cause and deposed before the learned Family court by the DW-3 and DW-4. Therefore, their version is not repeated herein for the sake for convenience. 68. The learned family Court has examined the headmaster of the Central Public School as Court witness to know about the study of the child. As per the headmaster the said Sarika Kumari attend the class regularly, her performance in the school is also average. 69. From the pleadings available on record, it is evident that admittedly the suit was filed by the father for custody of the minor female child aged about 9 years at the time of filing of the suit. 70. It is a settled position of law as discussed and referred hereinabove that in all matters of custody irrespective of the law under which the same is sought, the welfare of the child is of paramount-importance. 71. The Court has not only to look at the issue on legalistic basis but has to take into consideration the human angles as well. 2026:JHHC:20888-DB 32 72. From the testimonies of the witnesses and pleadings available on record, it is admitted fact that the petitioner, the respondent no. 1 herein, was married with Sunita Devi [respondent no. 2/performa respondent herein] in the month of April 2008 as per Hindu rites and customs prevailing in their caste. After the marriage they started living together as husband and wife and from the wedlock a female child was born on 30.05.2009 namely Sarika Kumari, for whose custody, the proceeding is before this Court. 73. It is the case of the petitioner-respondent no. 1 herein that respondent Sunita Devi-wife while living in the matrimonial home since beginning her attitude was non- cooperative and sometimes, she also quarrels with the petitioner and she left the company of the petitioner. 74. It is alleged that the father of the respondent/performa respondent cheated the petitioner/respondent and when the petitioner/respondent demanded money then as per the petitioner/respondent he was falsely implicated in a case by filing a complaint through the respondent-wife, Sunita Devi vide complaint case No. 482/2010, in which, the petitioner/respondent was found guilty and accordingly convicted and released from custody on 06.05.2015. 2026:JHHC:20888-DB 33 75. It is further the case of the petitioner, who is respondent no. 1 herein, that during the period of his custody he came to know that his wife, Sunita Devi, had contracted a second marriage with one Dheeraj Kumar Jain on 22.01.2014, and that from the said wedlock a male child was born on 22.11.2014. 76. It is the case of the petitioner/respondent that his wife Sunita Devi left her daughter Sarika Kumari uncared just like orphan and further the father of Sunita Devi namely Lakshman Modi, died during pendency of the suit. Under the aforesaid background, the petitioner being father and natural guardian of Sarika Kumari filed the suit being stating that he is legally entitled to take custody of minor. 77. Here, it would be mention that in spite of notices being issued to the respondent-wife [Sunita Devi], and all efforts to secure her appearance even by way of paper publication, she did not appear, therefore, the suit proceeded ex-parte by the learned family court against her vide order dated 12.09.2018. 78. It further needs to mention herein that from the pleadings available on record, it further appears that no efforts have been taken by the respondent-wife [Sunita Devi] for custody of the minor child rather the appeal has been filed by the maternal grandmother, who is aged about 71 years 2026:JHHC:20888-DB 34 as of now admittedly having no independent source of income. 79. Before the learned family court, the respondent Nos. 2 and 3, the maternal grand-parents of the minor and father of Sunita Devi respectively, appeared before the learned family court and filed their show-cause. 80. It has been admitted that the respondent No.1 [Sunita Kumari] was married with the petitioner in the month of April 2008. It has further been stated that the petitioner was convicted on the complaint of Sunita Devi, and was in judicial custody. However, it has been denied that the Sunita Devi had performed second marriage with Dheeraj Kumar Jain. 81. Before the learned family Court, the witnesses produced on behalf of petitioner/respondent Rabindra Kumar Burnwal fully support the case of the petitioner. They all in one voice has deposed that Rabindra Kumar Burnwal (respondent/petitioner) invested some money in the Stone Chip business of his father-in-law and when Rabindra Kumar Burnwal demanded his money back, his father-in- law, namely, Laxman Modi made a case lodged under Section 498A by her daughter Sunita Devi, in which Rabindra had to go to Jail. After that the wife of the 2026:JHHC:20888-DB 35 petitioner, Sunita Devi solemnized second marriage with one Dhiraj Kumar Jain. 82. They have further deposed that daughter of the petitioner [Rabindra Kumar Burnwal], namely, Sarika Kumari was kept by Laxman Modi and her mother Sunita Devi left her daughter Sarika Kumari after solemnizing second marriage. 83. They have further submitted that the Rabindra Kumar Burnwal has sufficient means to take care of his daughter and he has paternal property also. 84. Whereas, the other side witness, in particular, the appellant, who is DW-3 Shakuntala Devi, has deposed that the petitioner tortured her daughter and ousted her daughter and her grand-daughter [Sarika Kumari] from his house and since then they are living with them. She has denied that Sunita Devi has solemnized second marriage. But admittedly, even after being noticed she did not appear to prove the factum of second marriage. 85. The most important witness herein is the child, who was examined as DW-4- Sarika Kumari, who is the minor daughter of petitioner and respondent No.1 before the Original Suit [Sunita Devi], who in her cross-examination, has stated that her mother is not staying with her. In paragraph-7 of her cross-examination, the witness has 2026:JHHC:20888-DB 36 admitted that she has occasionally seen her mother. It is also admitted by the witness that she has never seen her mother staying with her. It is also admitted that her maternal grand-mother is not doing anything. The children of maternal uncle are not studying in the school in which the witness is studying. The sons of the maternal uncle are studying in GS Public School and Lakshya Convent School. 86. The learned family Court has examined the headmaster of the Central Public School as Court witness to know about the study of the child. As per the headmaster the said Sarika Kumari attend the class regularly, her performance in the school is also average. 87. Here, it would be mention that document was filed by the petitioner/respondent which has been marked as Ext/-1 to Ext.-4 which reveals that the respondent No.2 [Sunita Devi] solemnized the second marriage with Dhiraj Kumar Jain. 88. It needs to refer herein that in the case at hand, at the relevant time the minor female was aged about nine years. At this age the minor cannot exercise her discretion intelligently. She lives under the influence of a person with whom she is living and exercises the discretion as suggested by that person. The court should be very 2026:JHHC:20888-DB 37 cautious in the said circumstances to see the future and interest of the minor while deciding the custody. The welfare of the minor should the prime consideration before the court for considering the custody of the child. The court must take into consideration as to what should be the welfare of the child. In the present case the child is a female child. Apart from her education it is also relevant to see the future requirements of the minor female child. 89. The learned family court considering the fact that the respondent No. 3, the appellant herein is an old lady and the sons of the respondent No.3 have their own family and they have to look after their children also and further the fact that the petitioner/respondent no. 1 has not solemnized second marriage as also the parents of the petitioner/respondent no. 1 are alive, has come to the conclusion that the minor will be cared in a better way in her parental family. He (father) is the next best person to look after and care the child after mother. Furthermore, the father has earning sufficient to maintain his daughter, being a natural guardian the petitioner have right to get custody of the child. Accordingly, the suit was decreed in favour of petitioner/respondent no. 1 holding that the petitioner/respondent no.1 has been able to make out a case that being natural guardian of minor Sarika Kumari can care in better way. 2026:JHHC:20888-DB 38 90. The law has been propounded by Hon‘ble Apex Court, as taken note of above, that the welfare of the child is paramount consideration while handing over the custody of the minor. 91. It needs to refer herein that the under Section 6 of the Hindu Minority and Guardianship Act, 1956, it has specifically been mentioned, as per the relevancy of the case herein that the natural guardians of a Hindu minor; in the case of an unmarried girl is —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. But, herein, the female child was 9 years at the time of filing of the suit. 92. Now, coming to Section 9 wherein also, which speaks about testamentary guardians and their powers, which also provided that a Hindu father shall be entitled to act as the natural guardian of his minor legitimate children. 93. Furthermore, Section 13 of the Act which says that welfare of minor is of paramount consideration and it says that no person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor. 2026:JHHC:20888-DB 39 94. In the case at hand, mother, who may have been best suited if otherwise have sufficient means to take care of minor daughter, has solemenized second marriage and in proof thereof, the petitioner, the respondent no. 1 has exhibited the documents. Further, before the learned family court in spite of notice being served upon the respondent wife [Sunita Devi] before the family court, she did not appear and more particularly, the minor child [DW 4] in cross-examination has stated that her mother is not staying with her. 95. It is also admitted by the witness(P.W.4) that she has never seen her mother staying with her. It is also admitted that her maternal grand-mother is not doing anything. This witness has further stated that the children of maternal uncle are not studying in the school in which the witness is studying. The sons of the maternal uncle are studying in GS Public School and Lakshya Convent School. 96. In view of the aforesaid facts, the discussion undertaken, and the judicial pronouncements relied upon, this Court is of the considered opinion that, if the learned Family Court has granted custody of the minor female to the father, no error can be said to have been committed and as such the judgment rendered by the learned Family Court does not 2026:JHHC:20888-DB 40 fall within the ambit of perversity and, therefore, warrants no interference. 97. This Court, therefore, is of the view that the order/judgment dated 18.02.2019, passed by the learned Principal Judge, Family Court, Koderma in Original Suit No. 22 of 2018 requires no interference. 98. Accordingly, the instant appeal stands dismissed. 99. Pending interlocutory application(s), if any, also stands disposed of. I agree (Sujit Narayan Prasad, J.) (Pradeep Kumar Srivastava, J.) (Pradeep Kumar Srivastava, J.) 14th July, 2026 Alankar/ A.F.R. Uploaded on 15th July, 2026