-b«u*Kt^ ^^^^^ HIGHCOURTGFCHHATtlSGARMATBILASPUR Divisioin Bench: HOn'tlileShri Dhirendra IVIishra &Hon'E)leShriR.N.Chahdrakar.JJ, APPELLANT APPLICANT RESPONDENT NQN-APPLICANT F.A.(M)No.43of2009 Tulsi Ram Deshmukh Versus Ku. Jharni Bai JUDGMENT FOR CONSIDERATION Sd/- Dhirendra Mishra Judge HON'BLESHRItt.N.CHANDRAKAR.J 3 ^^-•CJZ- Sd/- R-N. Chandrakar Judge POSTFOR JUDGMENTON Jtl_-6-2010 Sd/- Dhirendra Mishra Judge :c_. f-s 'x ..'s1 ">». •\~. 1%' ^% HIGH COURTOFCMHAtnSGARHATBILASPUR F.A.fM)No.43of20Q9 APPELLANT APPLICANT Tulsi Ram Deshmukh, S/o Panchuram Deshmukh, aged about 41 years, R/o Village Anjora, Tah. & Distt. Durg (C©) Versus RESPONDENT NON-APPLICANT Ku. Jharni Bai, D/o Tulsi Ram Deshmukh, aged about 6 year, Minor, through its guardian, Renu Ram Sahu, S/o .Bhagili Ram Sahu (Nana), aged about 45 years, R/o Vjllage AnjOra, P.S, Pulgaon, Tah. & Distt. Durg (CG) (First Appeal under Section 19(1) of the Family Courts Act) Present: Shri Jitendra Gupta, AdvoGate for the appellant. Shri Shashi Bhushan, Advocatefor tbe respondent. DivisionBench: HoJiLble^Shri Dhirendra IVIishra & Hon'ble Shri R.N. Chandrakar. JJ. JUDGIVIENT (Deliveredon /^'June, 2010) The following judgment ofthe Court was delivered byDhirendra Mishra, J. l. The instant first appeal is directed against the judgment and decree dated 12th January, 2009 passed in Civil M.J.C. No. 3/08, whereby learned II AdditJonal Principaf Judge, Family Court, Durg, has rejected the appljcation 6f the appellant herein under Section 25 of the Guardians andWards Aet, 1890 for Gtistody of his rnihor daughter Ku. Jharnibai. "2. Undisputed facts are that the appellant developed jllicit relationshipwith ^Saroj Bai.mother ofthe respondent, as aresultshe gave birth to Jhami l'&f- j'. w. v Baion 29th October, 2001.Aft6rfew months of the birth of Jharni Bai, her mother Saroj Bai started living with her husband Rajkumar, leaving her daughter with her father - RenuRam Sahu. 3. The appellant filed an applicatjon for custody of the minor with the averment that he is fatherof Ku. Jharni, her mother Saroj Bai is residing with her husband Rajkumar in Village Sirsida after marrying him; he being father bf Jharni Bai is her natural and legal guardian and as sueh, entitled for her custody. He isworking in Nagpur Engineering Company, he is presently residing with his two sons and wife and capable of innparting proper education and care to the minor, whereas custody of the minorwith her maternal grandfatheris illegal. Renu Ram is an old person, he has his own responsibility of maintaining his sons and daughter and therefore, he is not capable to ensurewelfare of theminor as her guardian. 4. The respondent's matemal grandfather, in hiswritten statement, averred that after his daughter became pregnant through the appellant, a Panchayat was convenedand it was decided that the appellaht should deposit the expenditure for delivery of Saroj Bai and amount of penalty in the Panchayat. The appellant had admitted in the Panchayat that he shalt be paying maintenance @ Rs.100/- permonth to the respondent's maternal grandfather, who shall have the eustody of the minor child. The appellant did not pay the amount of maintenance as decided in the Panchayat. Thereafter, an application underSection 125 ofCr.P.C. was "filed and the learned Family Court directed the appellant to pay maintenance @ 700/- per month for minor Jharni Bai. On his failure to & *. ": • : - :y— " ; ' .1'1; ' :-',/'.-- "'vpay the amount of maintenance, an application for recovery of ^^ maintenance amount was filed and an application for enhancement of the amount of maintenance was also filed. Since thereis an order of maintenance in favour of the minor, the instant application for custody has been filed by the appellant malafidely. The appellant neverenquired about thewelfare of minor Jharni Bai inthepast; he has already maFried and has the respohsibility of his wife and two sons.therefore, he is not in a position to ensure welfare of the minor child, whereas the respondent's rnatemal grandfather is properlylooking after thewelfare of the minor sirice her birth. 5. On the basis of pleadings of the respective parties, issues were framed. The appellant examined himself and his wife Bodhni in support of his application, whereas respondent's maternal grandfather examined himself, his witnesses Sudarshan Soni and Lalchand Sahu. 6. Learned Family Court rejected the application of the appellaht for custody of the minor with an observation that from the evidence adduced by the respective parties, it isevideht that the appellant did not make any effort to obtain custody of the minor child for the last 6-7 years; he also did not pay maintenance @ 100/- per month as decided by the^GramSabha and paid maintenance only when he was ordered by the Family Court under the Code of Criminal Procedure; he was irregular in paying maihtenance and therefore.detained in jail fortwo days. On the basis of above findings, it has been held that the application is not bonafide or actuated by love and affection towards Jharni Bai, whereas the respondent's maternal grandfather is looking ? after the minor properly and has also arranged for her education and ^ \ p \ ~. \~ fv thus, welfare ofthe minor child is well protected while she remains inthe custodyof her maternal grandfather - Renuram. 7. Learned counsel for the appellant submitted that the appellant being father of minpr Jharni Bai is her natural guardian and as such,entitled for her custody. The respondent's motheror maternal grandfather has no legal right to have the custody of the minor in preference to the appellant. 8. On the other hand, learnedcounsel for the respondent, would argue that in the matter of custodyof minor child, the legal entitlement of custody is not the only consideration, and paramount consideration is welfare and interestof the minor.In the instant case, the appellant did not care about the welfare ofthe minor after her birth for a period of 6-7 years; he also did not pay the amount of maintenanee as agreed in the Gram Sabha, which compelled the respondent to file an application for maintenance under Section 125 of Cr.P.C. and the instant application for custody has been filed only when the appellant has been ordered to pay maintenance @ 700/- p.m., with the solepurpose ofavoiding payment of maintenance as ordered by the Family Court. 9. We have heard learned counsel for the parties and perused the pleadings of the respective parties, the evidence available on record as also the impugned judgment. ^, 10. The trial Court, afterelaborately considering the material and evidence available on-record, has arrivedat a conclusion that the application for , custodyof the minor hasnot been filed bon^fidely by the appellant; the oppellant did not make any effort to obtain custodyofthe child for the ..;; ^:~, last 6-7 years and this application has been filed only when he has been ordered to pay maintenance by the Family Court, justto avoid payment of maintenance; the minor is being well looked after by her matemal grandfather, who is also imparting education to her and thus, welfare and interest is being better takeh care of byher maternal grandfather. 11. It is settled law that legal entitlement of custody of a child is not the only and sole criteria for custody ofa minor andthe paramount consideration for custody of the minor is his interest and welfare. Learned Family Court, after properly marshaling the evidence available on record and considering the conduct ofthe appellant, has arrived at the above findings, which are strictly ih accordahce with the evidence available on record and as per law. We find no substance in this appeal, the same deserves to be dismissed and is, accordingly, dismissed. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Khan tf'- »•;. Y 7S'--.