cl: HIGHCOURTOECHHATnSGARH.BlLASPUR ' < . "• DIVISIONBENCH CORAM: HON'BLEMR.T.P.SHARMAAND HON'BLE MR. R.L. JHANWAR, JJ. APRELLANT: RESPONDENT: FirstADDeaKhJll No.IO ot2009 Smt. Sadh Kunwar Versus Sanjay Kumar JUDGMENTFORCONSIDERATION HON'BLEMR.JUSTICER.L.JHANWAR .; 1 .-:'.^-\ Sd/- i.K Sharma Judge Sd/. R-L. Jhanwar th POstforDronouncementofiudamenton27'"Julv.2010 Sd/- T.P. Sharma Judge ..isSSi-SS^ HieHCOURTOFCHI-fATnSGARH.BILASPUR DIVISIONBENCH CQRAM: HON'BLE MR. T.P. SHARnflAAND HON'BLEMR,R.L.JHANWAR,JJ. ^ '...'.'\. APPELLANT/: (Appljcant) RESPQNDENT/; (Non-applicarit) First Appeal (IVIV No.lQSof 2009 Smt. Sadh Kunwar wife of Sanjay Kumar, aged about 30 years, R/o village Singhia, Tate Versus ./'''.': '. '" 1'^ 1''1'. :'/ '.1' ' Sanjay Krirnar son of Injor Sjngh aged about 32 . years, R/o Dhaurabhatha rdq) Tahsil Katghora, Distt. Korba .1.1 ".»"•'. {First appeal under Section 19 (1) ofthe Family Courts Act read with Section47ofthe'GuarldiansandWardsAct} Present: Mr. Ravish Verma, counsel for th6 appellant. Mr. Abhlijit SarKar, coiinsel for th|e respondent. JUDGMENT ' (27 July,2Q10) ^ .^^^^^^^ ; The followina judamentoftheCourtwasdelivered bvT.P.Sharma.J: - 1. Challenge in this appeal is to the order dated 9-1-2009 passed ,by the Judge, Ramily Court, Camp Katghpra, Distt. Korba ih Gase Np.5/2008, wherebytearnedJludge.FamilyCpurthas^lismissed'thepetitionfiledon, belialf of the appellant hereiri for custody of four years & pne year aged " female children tp their mQther/appellaht herein. ', " 2. Qrder Js challenged on the ground that by denying :the custpdy of children below the age of five years to her motheF, espeejally relating to femSi1echildren,theFami!yCourthascommittedjllegality. 3, Brieffacts necessary fbr the disposal of ttiis appeal are thatthe parties are Hindu legally wedded spouses, marriage between tlrc parties took ~ place intheyear2001 andtwo daughterswere bornoutoftl'ieirwedlock. Inthe year 2008, elder daughter was aged about 4 yeare andypunger' dayghter was aged about one year only.; As per the allegationof the appellant, the respondent started committing torture & cryelty upon the^ appellant and the r^pondent ousted the appellant from his house. On ..'R^ ..t" ®. ^^^y- & ^ one occasion, when the appellant was ini;her maternal hpuse with her' two kids, therespondent came and forcefully snatched his two kids and took them to hi$ house. The appellant has tried herl6vel besttp taKe ' bacsk the custody of faoth the children, but she did not suceeed oh wtiich she filed petition under Section 97 of the Cr.P.C. before the Sub DivisiQnal Magistrate whjch was dismissed whereupdn she has filed ^titibn under Section 6^ot the Hindu Minority and GuardJans^ 1956 <for short 'the Acf). The respondent has denied theadverse allegations, but tias admitted the relatipnship. The respbrtdent tias specificall^ alleged that the appellant was.in the habit of quarreling wth .hirn, her behaviour was not normal, even^she has left her kids in hts house and went to tier father's house, at that time, small daughter was aged about one year only and he has not snatehed or teken the kids fQrcefuHyfromtheguardianstiipoftheappellant. 4. Qh the basis of adverse allegations issues were framed and after providing opportunity t6 the parties, teamed Judge, Family Court hgs dismissecl the petition fi'^d on behalf of the appellant/wife for custody of .'•thechildren. • ! 1 .'' '1;1 '•1 ..":,1''- '/ ' \ 1'.,'...11:' ', '.•':,1.'1. 5. V/e have heard leamed counsel fbr the parties, perysed fhe prder ; impygnedand recordoftheFamilyCQUFt. . 6. Leamecl counsel forAie appellant.yehemently'argued that although as per the provisions of Section 6 pf the Act the father is the'natural guardian of his minor son and unmarried daughter,aTid after him mother, but in caseofminorb6lowageof5 years, ordinarily mother is ftie naturalguardian. .l^arned eounsel further argued that irithe pre^ case,,at the time of filing the petition, age df first daughter was four years and that 6f second daughter was one year. The respohdent has forcefully snatohed both the children fronrthe cystody otthejr mother. The appellant is having source of liyelihood to maintam her minor children. Learned counsel plaeed reliance in the matter of Smt. Sunnder Kaur ^indhu v. HarbaxSinghSaridhu and another (AIR , 1984 SC 1224) in which the Apex Court has held that the welfare of the < rninor Ts paramount consideration fbr the guardiansbip of a child. l^arned counselfurtherplaced^^ v. JasmitKaur(AIR200eDelhi213) in which the Delhi High Courthas s<-. :s .^s^'x: .^-' '.^- •• " •'*^: ' '% |i:.|^ggB;ia y S, .'VSBS^:'i- ^fc^"' *B &t' liekl that at the time of passing such order the Court js Fequired to examine the welfare of the minorehild. 7. On the pther hand, learned counsel for the respondent vehemently Qpposed the appeal and submitted that definitely the welfare 6f child js paramount consideration fpr custody and gyardianship. As per Section 6 of the Act, father is primarily the natural guardian fbr a chiM and ttiereafter,^he motherishatural guardian, but in case ofchild belowthe age Of 5 years, ocdinarily the mother shall be the natural guardian. In order to decide the welfare of the minor ehild the Court is required to examirre the welfare of the .child in realistic manner cpnsidering the circumsfances, evidenee, future prospects inclyding maintenance, educatipn and health ofthe child. In the present case, the appellant is not havingany source pfincome, she js dependentfor herlivelihood on herlabourworkasdailywager.buttherespondentisworkingihBALCO factory, he is having definite income and he is able to mgintain his childreri. Presently, the respondent is providing better fadilities sind education to his children. Leamed eounsel further argued that the appettant - mother of the children who has filed petition for cusfodyof the children, had earlier left her two kids aged about 4 years & one year in the house ofthe respondent and left the houseofthe respondent at njghtm ahsence qf the respondent. The twosmall kids werepresent in tbe house of the respondent without any parent or pther person for the wholenight. Againtheappellanthadleftherchildreninthehouseofthe , resporident which shows her affihity and affection. Leamed eounsel also< argyedthatinthepFesentcase,welfareofthechildrenwouldbepossible irtth&custody ofthe respondent. 8. In order to appreciate the arguments advanced on behalf of the parties, we have exdtnined the evklence and pleadings ofthe parties. 9. As perSection SoftheAct, Rrimarilythefatheristhe'natyralguardianof a chi1d,:but in Case pf child below the age of 5 years, ordinarily the . motherwould bethe natural guardian. Section 6 oftheActreadsthus, "6. NaturalguardiansofaHindyminpr.—ThenaturEil guardian 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 ih joint family l'/:. ~..'-;,:' 'property)>.are—-...^1..•..'..^••.-;:' ..:': -.. ..::.1',.'^';:.,..', (a) in the case ofa boy or ari unmarried giri—th& father, and after him, the mother: provided that .-••^" -.1 ;A;':. • :^,- y»s'"%.:.% ''^^SS^.Ws'?'', •''^"K^^^;^, :''.^ • 'y r: ),:: •f: the custody ofa minorwho has not completed the age of fiye yeare sha|l prdinarily be with the • mother; ' :- ••. .. ' . . ; : .. ; .:! ;1 •;'•:'' ' (b) in case of an illegitimate boy or an Hlegitimate unmarried giri—themother, and after her, the father; : -1'''-. .': ;:~ ,. ^: ' • '. ••: '/;...: ,- • (c) in the case Ofarnamedgirl—thehusband: Provided that no person shall be erltitled to act as the natyral guardian of a mihor under the provisions of thissection— (a) ifhehasceased to bea Hindu, or (b) if he has completely and finally renounced the ,-world bybecoming a hermit(i/anaprasf/ia)oras ascetjo <ya(»orsanyas/). •tl •'.'•j—' •^i Exp/aftaffbn.—lnthis sectipn, the expression "father" and "mother" do not jnclude a step-father and a step- ^mother." . '''''••1' ''1" . ,; ! ':'::;:' ' ; ',."-;' " •"':''' 1 .-• 10;As held in the matters of Snit. Surtnder Kaur (supra), Amrit Pal (supra) and Gaurav Nagpal v. Sumedha Nagpal (AIR 2009 SC 557), welfare of phild is paramount consideration, moral and ethical welfare of chilcl must also be weighed. In case of questjon of custody of minor child,theCourtisrequiredfoexamihethequestionofwelfareofthech1ld' alone and the Court is required to see that it is not the welfare of the fathernorthewelfareOfthemotherthatistheparamountconsideration foFtheCourf,itisthewelfareofminorandtheminoralonewhiGhisthe paramounf consideratiort. 11.1n thepresentGase,theappellant-hasspecificallycIepQsedthathertwo daughtersarebelowtheageQffiveyearsespeciallytheageofseGond daughter isonlyoneYear. She ha&d^posed in para 11 ofherevidence thatshe has not studiedeven Class-1; She has admitted that she ysed - to earn Rs.800-1,000/- per month by laliour work and :income of tier,, husband is Rs.1,500/- permonth. 12,lntef alia, the respondent hasdeposed in his evidencethat he isworking in BALCQ factory arid he is maintaining his children effectively. 'He has also deposed that on one;occasi0n when he was not preserrt in the house ahd wasworking in the hjght shift, the appellantafter leaving her ftvp small %ds alone (n the house at night hiad ^one t6 her matemal ^ house and when he:came in the morning he saw thattiis both'kids were ! t-.^ '1,;1:',.'.., •:.•:.'.; :".'.:':;:,;.:.^ ^•.<':.:.... ^' '... • ';;:^":..^1.;11.-;.;;.'/ ^^s/eeping, then he arranged milk powder fpr them andwent to his iri-law's ?house for bringing the appellant back, tiut she refysed (6 com& back.^ x ':. iT-. •*^:';li <i ,f7"; X: :^ '\'..— After some tinne, Panchayat was convened and on the basis of compromise inthe Panchayatthe appellantcameto his house, butagain after fifteeh days, she left his house leaving both the children iq the .':l'house.''1' . '•::•',' vl. ''•1-^' ; . ' .•l':l\.'\, .- l3,The resppndent has eross-examined theappetlant in detail. In para 9 of heTcross-examuiation ttte.appellanttiasspeeifjcallyadrnitted.ttiatfifteen days prior.to the conimunity meeting she had left her two kids in the tiouse of the respondent at night and when her husband came to her parerits' house, her parents threatened him on which the Panchayat was • convened. Para 9 of'cross'examinatiohoftheappellant reads as •follows:-^. - ^ '': •: •:,':;' ..'-., . '., • : ',: • -:'' .;. 1'1 ;':'' '' . 1 V1;'-.-' "9. •ai*fiKj)cii 1s?p ?tTi ^ ?p^ 15 ^r q?^i t •^f '^Tr - eT^t ^r yi^ch^ 3iir?r iTra^ •^r ^r flpt Tpjf xrr ^RT /qSr < T '5^ c^ -^^ St^ • ^^^^ ^ cf M<T^^ ^^W^ ^ ^ q^W^ : ; . ^' SFno^^^^HT'^CT 1 'q? 6[R( ^r f •f^.^.^NET'^ ,' ^ v^ ^t w\w ^rSs ^i ^iw 'grcrf c^ wi3n^''un^ T? ^? :v . ,/ . . Sl^ ^^1^.^; |"',''' : ' , ,, - . • : • •t4.fn our Indjain system.noFmatly female'child depends upon her mottier rather than upon her father and mother successfully maintains her female child. As per Section 6 of the Act, ordinarily mother is natural guardian of child below theage of sixyears. Inthe presentease, if\we see the welfare of minor children it would be clear from the eyidence of the appellant & the respondent that the appellant had left her two small kids aged about 4 yeare & oneyear in the house of hertiusband at njght, atthattime,nocitherpers6nwaspresenttotakeGareofthosechildren, they were weeping fbr the whole night anct she. has repeated this instancesecondtimeafter\fifteenclaysofthefirstincident,Thisshows that the appellant is not havjng any affinity with ffie children. The appellant has stated that by daily wages work she used to eam Rs.800/- tc> Rs.-I.OOO/- per month^ But income of the respondent is assured iOc^me and he is seroing in BALCO factory. The appe)lant is not; educated woman and even she did noit know whether her child is studying in school or not. She hersetf has admitted that at present the responctent is mamtainingand taking care of his chitdren atleast since -• lasttw&'years/,. ; ':"••_' .-:1 /': . :';1 : ;•' ' . •::i'-'".,''.,.";. 11111'11': '..1?-.', ^ ^.". il ?:;'B"S'?i''!.' e ?: t Soma 15.These facts of the case prove ttiat welfareof minor chilclren is with the respondent and not with the appellant. As held in the matters pf Smt. Surihder Kaur (supra) and Amrit Pal (supra), the Cdurt is required to see the welfare ofminorcltildren.lnthepresent case,welfare0fminor ehildren is;with the respondent and notwth the appellant^Nprmally in case of children below the age of five years, custody should t>e with the mother, but this is an exGeptional case in which mother has lost her motherhood with the children by deserting them twice in the hpuse at ,1.. night...-1.. - •./'. • .,1:::.. . ''^- •' ^ ; • ' 11 '-, 1''1..' :: .1 •' 1 e.After appreciatihg the evidenceavailable on record, the FamilyCourt has dismissedthe petition filed on behalfof the appellantforcustodyofminor ehildren. The Famjly eouri has rightly djsmissed the petition filed on behalfpftheappellant.OnGlpseScrutiny,wedonotfindanyillegalityin theorder impugned. 17.The appeal is without sybstance, it is liable to be dismissecl and it is . herebydismissed. No brder asto Gdsts i s^~ R.L. Jhanwar Sd/- l:'^l.l/l:/;l:l:;';.,.:'l':/-t^ ,, Judge T.P. Sharma Judge -^, ';;T, •t'-'-':ti':'/- 'f'y.