IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 74 of 2007 Brij Mohan Singh Bisht S/o Sri Shiv Singh Bisht R/o 3-D Ashok Nagar, Roorkee District Haridwar, Uttarakhand …………Appellant. Versus Smt. Sangita Devi W/o Sri Brij Mohan Singh Bisht R/o Bisht Niwas Post Office Road Satpuli, P.S. Satpuli, District Pauri Garhwal Presently R/o Village Chaud, Patti Malla Badalpur, Tehsil Lansdowne District Pauri Garhwal. ………Respondent. Sri U.P.S. Negi, Advocate for the Appellant. Sri D.C.S. Rawat, Advocate for the Respondent. Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. (Oral- Hon’ble Prafulla C. Pant, J.) This appeal, preferred under Section 19 of Family Courts Act, 1984, is directed against the judgment and order dated 08.06.2007, passed by Judge, Family Court, Pauri Garhwal, in Guardian Case No. 6 of 2006. (2) Heard learned counsel for the parties and perused the lower court record. 2 (3) Brief facts of the case are that the petitioner (present appellant) got married to the respondent on 30th October 1998 at Satpuli (District Pauri Garhwal) according to Hindu rites. Out of the wedlock a male child named Sumit born out in Government Hospital Dugadda on 31.07.1999. The appellant (father of the child) is a Hawaldar in Indian Army and at present posted in 501 Field Survey Engineering Group, Ground Wing, Dehradun. Smt. Sangita Devi (mother) lives in her parent’s house in Village Chaud (Tehsil Lansdowne, Pauri Garhwal). She is a Teacher and working as Shiksha Mitra since January 2006 in Primary School Badda within the limits of Block Jayharikhal, District Pauri Garhwal. The appellant (father) moved a petition under Section 10 of the Guardian and Wards Act, 1890, for custody of the aforesaid child (Sumit) on the ground that so long the child was living with the father he was getting good education in a Central School in Roorkee, but on 10th June 2005 Sangita Devi (mother) took the child with her to her parental house and his schooling is being done in a rural school. The petitioner / appellant has pleaded that for the welfare of the child his custody should be given to him. (4) The petition was contested by the respondent. It is admitted to her that she is married to the appellant and their son Sumit born out of the wedlock. However, she has pleaded that she is looking after well her son and getting him educated. She has further pleaded that the present appellant committed cruelty against her and 3 forced her to leave the matrimonial house. She has further pleaded that the appellant has already filed a divorce petition against her. Denying the contents of the petition filed by the appellant, the respondent has pleaded that the petition of the petitioner / appellant for custody of the child is liable to be dismissed. (5) The trial court after hearing the parties dismissed the petition filed by the father of the child. However, the trial court allowed him to meet the child on 2nd Sunday and 4th Sunday. Aggrieved by said judgment and order dated 08.06.2007, passed by Judge, Family Court, Pauri Garhwal, in Guardian Case No. 6 of 2006, this appeal is filed by the father / petitioner. (6) We not only heard the learned counsel for the parties but also summoned the parties namely Brij Mohan Singh Bisht (father), Smt. Sangita Devi (mother) and the child Sumit. We heard the parties in person also and tried to know from the child as to what he feels about living with his mother and whether he is desirous to go with his father. Sumit, aged 9 years, told the Court that he is studying in Class IV in a Public School in Satpuli. He further told the Court that he is not keen to go with his father and wants to live with his mother. The mother (Sangita Devi) told the Court that though she is a Teacher in a different village but she is looking after well her son and every day getting his home work done. On the other hand, Brij Mohan Singh Bisht (appellant) told the Court that practically Sangita Devi has left the child 4 with his maternal grandmother and maternal grandfather as she is serving in a school away from Satpuli. He further told the Court that when the child was living with him, he was getting educated in a Central School in Roorkee. It is pertinent to mention here that grandfather (paternal) and grandmother (paternal) of the child live in Roorkee. (7) Having heard learned counsel for the parties and also the parties in person and after having some talking to the child we feel that the trial court has not committed any error of law by permitting to stay the child with the mother, for the father of the child is in the Indian Army and may be posted at any time in any distant place. On the other hand though the mother is serving as a Teacher at some distance from Satpuli, but she is able to give her affection more frequently to the child than the father. It is true that the child can get educated in a better school in a bigger city like Dehradun where the father is presently posted but there is no certainty when the father may be transferred from said place. Considering the tender age of the child aged 9 years and that he is desirous to continue to live with his mother, coupled with the fact that the child is happily studying in Satpuli, we do not find sufficient reason to interfere with the finding recorded by the trial court that the interest of the child is well protected with the mother. It is settled principle of law that what in such matters is material, is the paramount interest and welfare of the child. A child of tender age not 5 only needs good schooling but also needs the emotional company of the parents. (8) Having considered all the relevant aspects and after going through the record of the lower court and hearing the parties, we concur with the view taken by the trial court and do not feel it necessary to interfere with the impugned order passed by the trial court except to the extent that the trial court should have allowed the father to meet the son on every Sunday and holidays whenever he can come to meet the child. The trial court restricted the father to meet only on 2nd Sunday and 4th Sunday of the month. Accordingly, we dispose of the appeal by modifying the impugned order dated 08.06.2007, passed by the trial court only to the extent that the appellant (father) shall be at liberty to meet his son Sumit, living with his mother Sangita Devi not only on every Sunday of the month but also on all holidays whenever he is able to come and meet the child. (B.S. Verma, J.) (Prafulla C. Pant, J.) 11.09.2008 NS 6