IN THE HIGH COURT OF CHHATTISGARH AT BILASFUR FIRST APPEAL fMI N0. 7 I /2009 APPELLANT: < [Defendant] RESPONDENT: [Plaintiff] '^..:.T pte^^itl^ff^--" t<7.»d..-4'1-/"' / Anin Kumar Thakur, S/o shobha Ram Thakur, aged about 35 years R/o Quarter No. 5 Lalbag Rajnandgaon Tahsil & District Rajnandgaon [C.G.] VERSUS Thakur, W/o Arun Thakur aged about 23 years, R/o ViUage Aadejhar [Dangarh], through Prunary School, Hitkasa, Tahsil Ambagarh Chowki, District Rajnandgaon [CG] APPEAL U/S l^ni OF THE FAMILY COURTS ACT R/W SECTION 47 OF GUARDANS AND WARDS ACT 1890 ^- Apnellant tDefendantl Respondent (Pl.rinUflT FlFst Appeal (M) Ne. 81 of 2009 : Arun Ktonar Thakur VereuB : Anuradha Thalair Aooeal under Section 19 (1} oftte Fmnifv Goyrt Aet RW Sectkm 47 of Guardlans and Wards Act. 1890 DB: Hon'bleShriJustteel.M.Ghiddusi& Hon'We Shri .tusttee N. K. Agarwal. Present : Shri Gairtam Wiefa'sqaal, /talvoeate for the s^p^ Shri Rakesh Thakur, Advocate fw respondwd. OftM. ORDER (Passed on 30"' day ofAugi^aWM^ Per t.M. Ctoddusl, J. t. Thfe appeal has been flted asrin^ B'»hTipt^it8dofdsr dated 26.11.2009, passed by the Family Court, Rajnandgaon, fn Civil Suit No. 29-A/2Q09, allowlng tbe applicatien fited bythe respondent/Wife under Section 25 (1) of Guardtans & Wards Act, dlrectfng the instant appeUantftiusband to give cu^ody of minor chiM Yuvraj, agect about 5 years, bom out of the wedlock of the appellant and respoodent^ to Wie respondentAnrtfe. 2. Brief facts of the case are thatithe t^eBant married wlth the respCTtdent on 13.04.20(ra and a mate chlld namely Master Yuvraj was bwn from Uieir wedkxsk on 19.01.2(XN. Tteh- relationshlp became straln from the year 2006 and the respondent left the house of the appellant and lodged FtR ^BK'^fl^;..^§^^s^^w%^^<^g^$^;33^i^^iS^^?S ^^%i%^^^^^^^^^^^^^^^^^^^^^^^F sBsaaase WSSSSS9S "ISSKS'S: 4. under Sartton 488-A of IPC at Poltce Station, and BieFNiftor sent a nrttee through an Advocate on 23.01.2008 fcr mutual ttlvorce. The report shows so-many things Includlt^ that wrtiite the respondentwas at her parent's house, herta-other ftwnd one Sunder Lal Manikpurt who was Driver of Itehila Evam Bal Vitas Adhflari, at the n^ht hours instele her sister's Twxm and he was beaten by her brother who got some head i^ury. Both the r^pondent and Sunder Lal Manldpuri ^»aped from the PoUce Statlon. The Panchayat (rf their ca^ flted a proceedings and the Akhil Bhaittya Halba-Halbi Aadivasi Samaj, Mahasabha, Balod, Dlstt. Durg, vide letter No. 66/Misc./Balod, dated 27.05.20CB, allowed the divorce b^ween the appellant and the respondent with mutual consent according to Rute 10 and 58 of their Samajlk Niyamavali. Thereafter, the appellant(htreband perform«tWs secondmarriage. The r^pondentAwife is a SWksha Kaiml ©caeteItt, wh»es® teamed coureel appearing for Vhe a|^)C—ntsubmitted that ttie app^lant/husbaid fe empto^d In Simplex Pvt. Ud., Rajnanc^aon. The respondent frted and ap{rfication under Sectton 25 (1) of Guardians & Wards A<rt beforettw Famlly Court, Rajnanc^aon, for taRing custody of ehlld viAe wa» aged about 5 yeare. The respomlent also allegedso many altegationsE^ainstthe ippeUart Wt those are not retevant to cUscuss at presenl. \ ~\ ?~">s. .-^•" •5T) 8. The maln thlng in the case fe Uwt wrtttte ^i^ii^tie onter to givecustodytrfcWkl, paramount considerirtloo shouldbeth® status of the husband and wtfe, character, Income amt welfare of the child if the chlld we^ire Is safe In tw hands of father or mcrther eac. It is wen settled that In the matters coR(»m(ngthe cu^ody of minor chitdreti, the paramcaint conskleration Is the weWB«^ the mlnor and not the legal rigM of a parttcutar party. Section 17 ofGuaRKans&WBWdaArtprortcte&attUKteF: "17. Rtettera to toe conshtered by Uie <Sourt in a^olntlng guantfan. (1) In a^pe<n8ng ar'-y declaring tt»,guar^n sf a mlnor.flie eoin* shall, subject tothe pro¥telM»®fttiis sec^oii) be gutded t^ wrtiat cot»tetottywUh e law to whk^t the nrtwr is subjpel, s^pears to the ciroumstances to be Tor the welfare of (he mlnor; (2) In conBMCTtng whrt wllt be the weSSaHi vltt <^ ttre minor, Uw Court shrt^ have r^ard te Ihe age, s®(SM'Klrel^tonofftiefltiner, ^^aetortnet; capactty of ftie pr^osed gaautlian and hfe nNNmess of kln to e minor...............'' The Supreme Court in casw ^S S^d Sateemudelin v. Dr. Rukhsana& Otttere'1 h^observaJ In pwa 11 of ilsjtK^n'ent as under: "11. From the prindplea taid dwm tn the aforementtoned cases tt Is ctear Siat in an a licaflon seetdng a writ of Habeas Corpus for custody of mincM- chlldren the princlpal considerallon far the Ceurt te to ascertalny^ ,'2001(5) SCCM7 ^ ^ whdhertfieci todyofthe chltelren Ganbesaid to be unlawful or illegal and whether the welfare of the chiklren requires that pr^ent custody should be changed and V chltdren should be left in care and custody ofsQmebody else. The principle Is wrell settled that in a matter of custody of a child flie welfare of the chlld is of paramount conslderation of the Court. Unfortunately, the Judgment of the High Court do^ not show that the Court has pald any attention to these important and refevant questions. The High Court has not considered whether the custody of the chlldren wBh their fathercan, in the facts and ciroumsteroes, be said to be untewful. The Court has also not adverted to the question whether for the welfare of the ehildren they should be taken out of the custody oftheir tether and teft In the care oftheir mother.........." 9. The Supreme Court in case of Gawav (Vagpa/ v®. SumeeSw NagpaP observed in par^raphs 42, 43 &50 as uncten "42. SacUon 26 of tlw Hindu MarriageAct, 1855 provides for ci»todyofchildren and declares that fn anyproceeding under the said Act, the courtooukl make, from time to time, such interim ordere as it might deem just andproper with respect to custody, maintemince and education ef minorchildren, conslstendy wiUi their wtshes, wherever possibte. 43. The principtes in retatlon to thecustody of a minor chikt are well setUed. In detenninlng the question asto who should be gjven custody of a minorchikl, the fmramount consideraUen is , •V 2009<1)SCC42 \ ^BBMS!|KBi^%H?|:"t .%^t- flie"w8ltore <rf t»e <rt)Bd" and BOI r^ite ^aie parente undara stahrtetorthe time being tofon». 50. Wien ttie court Is confrorted virtth eoritlteUng demands made by the parents, each,|m®?ithas to 6 Justity the demands. TttfrcourtAas not only ta look . * at ttie issue on legatlstie bads, )n aieh matlws human angtes are retovant for dwhflng those issues. The eourt then does not give emphasis on , what the parties say, it has to exerefee a jurisdlction which is aimed at the welfare of the mhior. As observed recenUy In Mausami Mottra ©angulicBse, ttie court has to gh^e due weightage to •re child's ordinary contenbnent, health, education, intellwtuaf devetopment and favourable surroundlt^s but ower and above ph^teal comfcrts, tfie moral and ettdcal values have also to be noted. ........'' 10. The teamed Judge, Famlly Gourt, Rajnandga<m, has not taken Intoconslderation the status oftheparUesand alsodtel not make any effort to summon the or^inal resalution and decision of the Pandiayat/Mahasabha. Famtly €ourthas also not taken into considerErttoti the evidenee reGor^d in arriving at the concluslon as mentioned In the proceedlngs of the Mahasabha (Photocopy of which are availsri^e on record), whereln it has been menttoned Ihat the respondent had admltted for her illlclt relationdilp with Stinder Lal Manikpuri and sought dtvorce wlth her consent tefore the Panchayat, and wh^her. the respondent was havir^ extramarital relaUonship, and if so, in tttat cE^aclty, whether tt was proper to give custody of child to her. 11. In view of above, we are of the ophiton that the matter requlres reconslderation bythe Famlly Court, Rajnandgaon. \ 12. Accordingly, the appeal is allowed In part. Theorder dated 26.11.2009, passed by the Family Court, Rajnarx^aon, Is set aside and the matter is remltted bErek to ttie Famify Court, Rajnandgaon, for dedsion afresh. 13. Learned Judge, Famlly Court, stell provide ani qyorhinltyto both the parties to adduce ftirther evidences, V any, and shall decide ie matter in the light of observation made hereinabove. The matter shall be expedltedas eariy as possible preferably within a period of four months. No orcter asto costs. Sd/- I.M.Quddussi Judge Sd/- N.K. Agrawal Judge <?>- Sahu -:t""f