IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR F.A.fM) No. \\ insls /2011 APPELLANTS DEFENDANTS / PB^0-:"" p(e»s"^ \e-^ Smt. Quayanat Anjum, W/o. Mohd. Ejaz Khan, aged about 30 years, R/o. Chhotapara, Raipur, District Raipur (C.G.) Liyakat Ali Ansari, S/o. Late Abdul Hamid Ansari, aged about 61 years, Retired Government Servant (P.W.D.) R/o. behind Harizan Hostel, Pension Bada, Raipur (C.G.) Wahid Khan, S/o. Asif Khan, aged about 3 years, Through: Liyakat Ali Ansari, S/o. Late Hamid Ansari, At present, through Natural Guardian/ Mother namely Smt. Quayanat Anjum, W/o. Mohd. Ezaj Khan, aged about 30 years, R/o. Chhotapara, Raipur, District Raipur (C.G.) VERSUS Asif Klian, S/o. Late Abdul Jabbar Khan, aged about 35 years, R/o. Maudhapara, Raipur, District Raipur (C.G.). FIRST APPEAL UNDER SECTION U)d) OF THE FAMILY COURTACT.iqSd rf HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH w CORAIVI: HON'BLE MR. T.P. SHARIVIA AND HON'BLE MR. R.N. CHANDRAKAR, JJ. APPELLANTS: RESPONDENT: FirstAppeal (M) No.11 of 2011 Smt, Quayanat Anjum Versus Asif Khan ORDER FOR CONSIDERATION Sd/- T.P. Sharma Judge HON'BLE MR. JUSTICE R.N. CHANDRAKAR -3 Sd/- R.N. Chandrakar Judge th Postfor pronpuncement of order on 13'" September. 2011 T.P.Sharma ::-''£^&/:. ^V"''""S":-"iS,,.\ ,^'''.,..^3it,. ""''a^ '•^^ ^ is' /"' '•<» (\ ^i^%^ ^^ ^a^^? ''tS^^^L^^F \^" HIGH COURT OFCHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.N. CHANDRAKAR, JJ. APPELLANTS/: (Defendants) RESPONDENT/: (Plaintiff) First Appeal (M) No.11 of 2011 1. Smt. Quayanat Anjum, W/o Mohd. Ejaz Khan, aged about 30 years, R/o Chhotapara, Raipur, District Raipur (C.G.) 2. Liyakat Ali Ansari, S/o Late Abdul Hamid Ansari, aged aboyt 61 years, Retired Government Servant (P.W.D.) R/o behind Harizan Hostel, Pension Bada, Raipur (C.G.) 3. Wahid Khan, S/o Asif Khan, aged about 3 years, Through Liyakat Ali Ansari, S/o Late Hamid Ansari, At present, through Natural Guardian/Mother namely Smt. Quayanat Anjum, W/o Mohd. Ezaj Khan, aged about 30 years, R/o Chhotapara, Raipur, District Raipur (C.G.) Versus Asif Khan, S/o Late Abdul Jabbar Khan, aged about 35 years, R/o Maudhapara, Raipur, District Raipur (C.G.) {First appeal under Section 19 (1) ofthe Family CourtsAct, 1984} Present: . Mr. Manoj Paranjpe, counsel for the appellants. Mrs. Fouzia Mirza, counsel for the respondent. ORDER >th (13'"September,2011) The followina iudament of the Court was delivered bv T.P. Sharma, J: - 1. By this appeal under Section 19 (1) of the Family Courts Act, 1984, the appellants have challenged legality and propriety of theorder dated 31- 1-2011 passed by the Principle Judge, Family Court, Raipur in Civil MJC No.18/2010, whereby learned Principal Judge, Family Court has allowed the application filed by the respondent herein under Section 25 of the Guardians and Wards Act, 1890, and has passed order that (1) appellant No.1 herein shall handover the custody of son of the respondent & appellant No.1 namely minor Wahid Khan within fifteen days to the respondent; and (2)" appellant No.1 is entitled to meet her minor son on A'\ every Sunday at the residence of the respondent and in case of her willingness to keep the child with her on that day, she may take the child with her and shall return back the child to the respondent on or before 8 p.m. on the same day. 2. As per the appeal and reply ofthe parties, appellant No.1 herein & the respondent herein were legally wedded Muslim wife & husband. After the marriage, on account of dispute, the respondent divorced appellant No.1 vide written registered notice dated' 14-3-2005 and after divorce between the parties, minorWahid Khan was born on 12-4-2005 and he was residing with appellant No.1 till the final order is passed. Appellant No.1 is married to one Mohd. Ejaz Khan and the respondent has also married another woman. Appellant No.2 is father of appellant No.1 . 3. The respondent has made allegation in his application that presently minor Wahid Khan is not residing with appellant No.1 but residing with appellant No.2, appellant No.1 has left him, Ejaz Khan - husband of appellant No.1 is not ready to keep the ward with him, appellant No.1 is not having sufficient funds and facility for welfare and comfort of minor and to provide good education and atmosphere. 4. By replying the application, the appellants have denied the allegations and have alleged that the respondent has committed torture and cruelty upon appellant No.1 and offence punishable under Sections 498A read with Section 34 & 323 of the IPC has been registered against the respondent at the instance of appellant No.1. The ward is residing with appellant No.1 and getting best education in English Medium School. Appellant No,1 is having sufficient funds for comfort and welfare of minor. On the aforesaid ground, the appellants had prayed for dismissal of the application. After providing opportunity of hearing to the parties, learned Principal Judge, Family Court has passed the order impugned. 5. We .have heard learned counsel for the parties, perused the order impugned and record of the Family Court. 6. Learned counsel for the appellants vehemently argued that appellant No.1 is mother and natural guardian of minorWahid Khan whose present age is about 6 years. Minor Wahid Khan was born on 12-4-2005, he has not seen bis father/respondent No.1, respondent No.1 has previously not taken care for tomfort and welfare of the minor even, he has not attended the birth. ceremony of the child, only after judicial proceeding ,\ '^ (.- and claim, he has filed the aforesaid application. In case of custody of child, welfare of child is the paramount consideration. In the present case, mother of the ward i.e. appellant No.1 herein is natural guardian, though she is married to another personnamely Ejaz Khan, she is ready and willing to keep the ward with her, still she is keeping the ward with her and providing best education to the ward in English Medium School. Previously there was some controversy with Ejaz Khan, husband of appellant No.1, and during that period an affidavit was given by Ejaz Khan relating to unwillingness of keeping the ward, but now Ejaz Khan is ready to keep the ward with him. Learned counsel further argued that so many judicial proceedings and criminal proceedings are pending against the respondent which disentitlesjiim from custody of the ward. 7. Learned counsel for the appellants placed reliance in the matter of Rajesh K. Gupta v. Ram Gopal Agarwala and others in which the Supreme Court has held thatmost busy profession of father, factum of high education of mother, maternal grand-father being financially sound and good health of child & mother make mother entitled for custody and disentitle father for custody. Learned counsel further placed reliance in the matter of Gaurav Nagpal v. Sumedha Nagpal in which the Supreme Court has held that the welfare of the child is the paramount consideration and not rights of the parents under a statute, moral and ethical welfare of child is also ought to be a consideration. Learned counsel also placed reliance in the matter of Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi in which the Supreme Court has held that in case of children found to be intelligent enough to understand their well being, interest and welfare of the children is to be seen at the time of passing the order ofcustody. Learned counsel relied upon the matter of Nil Ratan Kundu and another v. Abhijit Kundu in which the Supreme Court has held that for custody of minor the court exercises parens patriae jurisdiction, it must give due weightage to child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings as well as physical comfort and moral values. Courtmust ascertain child's wishes, if the minor is old enough to form an intelligent preference, such preference must also be considered. Learned counsel further relied upon the matter of Vishnu / 1 AIR2005 SC 2426 I 2 AIR 2009 SC 557 I 3(1992)3SCC573 4 (2008)98cc 413 // & L and others v. Jaya5 in which the Supreme Court has held that both children living with their father continuously for past seven years wish to continue the custody, forcibly taking them away from their father and handing over to the mother, will only traumatize them and will not do any good to anybody. 8. On the other hand, learned counsel for the respondent opposed the appeal and submitted by placing reliance in the matter of Bal Krishna Pandey v. Sanjeev Bajpayee that in case of application for custody by maternal grandfather or question of custody of maternal grandfather, even the father who is residing abroad is entitled for custody of the minor. Learned counsel further submitted that in the present case, ward is not in the custody of appellSnt No.1, but is in the custody of appellant No.2 i.e. maternal grand-father of the ward and maternal grand-father of the ward is not entitled for custody of the ward. The ward may be given in the custody of natural father or natural mother. Therefore, appellant No.2 is not entitled to continue the custody of ward through his daughter appellant No.1. Appellant No.1 is not having sufficient means for comfort, education and welfare of the ward, she has married another person Mohd. Ejaz Khan and will be controlled and governed by her present husband. Appellant No.1 & Mohd. Ejaz Khan are also having their own child and, therefore, they will not give proper affection and comfort to the present minor child. However, father of the ward i.e. the respondent herein is having sufficient means for providing comfort to the minor child and paramount welfare of the child would be in the custody of the respondent. After appreciating submissions and evidence of both the parties, the Principal Judge, Family Court has rightly passed the order impugned. 9. In the present case, undisputed facts of the case reveal that appellant No.1 & the respondent married.on 6-6-2004, they resided together as husba.nd & wife for short period, within one year of marriage criminal case has' been lodged against the respondent at the instance of appell.ant No.T and the respondent divorced appellant No.1 vide registered notice dated 14-3-2005. Thereafter, ward Wahid Khan born was on 12-4-2005. Presently, appellant No.1 has married one Mohd. Ejaz Khan and the respondent has also married another woman. 5 (2010) 6 SCC 733 6 AIR 2004 Uttaranchall ~~".. k\ '."I ^ •%aEp:-s§,B ^•s:f-^-yy'^' "•v:X!S!S!ef''' Vs lO.Appellant No.2 herein namely Liyakat Ali Ansari - grand-father of minor Wahid Khan and father of appellant No.1 herein, has admitted in para 5 of his evidence that the ward is a school goingchild, he used to go to school at morning from his (appellant No.2's) house and after closing of school, he used to go to his mother's house and stay with his mother, after completing his tuition and home work, he again used to come to his house at night. Virtually, this admission shows that the ward is substantially residing with appellant No.2 Liyakat Ali Ansari. He has very specifically admitted in paras 2 & 3 of his evidence that the minor is residing with him. However, the fact remains that the six years' aged minor child Wahid Khan had never resided with the respondent and he is continuously residing either wij:.h his mother or with his maternal grand- father within the close contact of his mother. 11.As held by the Supreme Court in the matter of Gaurav Nagpal (supra), for custody of minor welfareof child is paramount consideration and not right of parents under statute. As held by the Supreme Court in Nil Ratan Kundu (supra) for granting custody of minor the court exercises parens patriae jurisdiction, it must give due weightage to child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings as well as physical comfori: and moral values. As held by the Uttaranchal High Court in Bal Krishna Pandey's case (supra), custody of minor may be in favour mother or father, but not in favour of maternal grand-father. 12.1n the present case, virtually, minor is not in the substantive custody of appellant No.1 or the respondent, but is in close contact and affinity with appellants No.1 & 2, rather with his father i.e. the respondent. The ward is not having any intimacy or closeness with the respondent and the respondent has also not shown his affinity, affection or any act towards the ward constituting his welfare or comfort. In the present case, the ward is not in conscious custody ofappellant No.1 orthe respondent, but in de facto custody of appellant No.2 in close contact and control of appellant No.1 because appellant No.1 & the respondent have married other men/women, they are enjoying their marital and social life with their life partners. 13.Considering the peculiar facts and circumstances of the case, absolute custody of the ward with appellant No.1 would not be in the welfare of the Ward, in the present scenario. However, equally, the respondent has ^ ^ also not proved the case of his better entitlement for custody of minor. Therefore, the order impugned requires modification. 14.Consequently, the appeal is partly allowed. The order impugned dated 31-1-2011 passed by the Principte Judge, Family Court, Raipur in Civil MJC No. 18/2010 is modified. (1) Absolute custody of ward Wahid Khan shall be with appellant No.1 and she shall not part custody of the ward to appellant No.2 or to any person. (2) The respondent is entitled to fortnightly visit his ward in the house of appellant No.1 or at the place suggested by her in writing on Sundays and in case of willingness of the ward of his temporary visit with the respondent, then after eight months from today, after getting permission in writing from the Family Court, the respondent may take the ward Wahid Khan with him on such visiting days i.e. Sunday between 8-9 a.m. till 6 p.m. and shall return back the ward toappellantNo.1. (3) If appellant No.1 fails to comply condition No.(1), the respondent is at liberty to revive the petition for custody before the Court concerned. 15.Parties shall bear their own costs. Soma 16.Advocate fees as per schedule. ' Sdf- T.P.Sharma Judge Sd/- R.N. Chandrakar Judge