Jharkhand High Court
Shankar Sinha @ Shankar Kumar Sinha vs Baleshwar Prasad on 21 July, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
2025:JHHC:19868-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No.22 of 2025
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Shankar Sinha @ Shankar Kumar Sinha, aged about 40 years, son of
Bisheswar Prasad, Resident of Veer Kunwar Singh Colony, Nirmala Kunj
Apartment, Karmik Nagar, PO & PS-Saraidhela, Dist.-Dhanbad.
......... Petitioner/Appellant
Versus
1. Baleshwar Prasad, Son of late Choudhari Modi
2. Sushila Devi, wife of Baleshwar Prasad
Both resident of Manaitand, Near Jharkhand Office, PS-Dhansar, PO
& District-Dhanbad ........... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Sanjay Prasad, Advocate
For the Respondents : Mr. Shailesh Kumar Singh, Advocate
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Order No.04/Dated:21.07.2025
Per Sujit Narayan Prasad, J.
The instant appeal under section 19(1) of the Family Courts Act is
directed against the judgment dated 14.11.2024 and the decree dated
23.11.2024 passed in Original Suit No.1136 of 2022 by the learned Addl.
Principal Judge, Addl. Family Court No.II, Dhanbad (in short, Family
Judge) whereby and whereunder the petition filed by the petitioner-
appellant for appointment of guardian of minor child, namely, Shivansh
Sinha ( in short, minor) and for custody and declaring him to be lawful
guardian has been dismissed.
2. The brief facts of the case as pleaded in the plaint having been
recorded by the learned Family Judge, needs to be referred herein as:
(i) The pleading of petitioner in brief is that the marriage of the
petitioner was solemnized with Soni Kumari, daughter of the
2025:JHHC:19868-DBrespondent in the year 2017. Out of the wedlock they have been
blessed with one son, namely, Shivansh. It is further stated that on
31.05.2022 Soni Kumari @ Gudia, wife of the petitioner committed
suicide.
(ii) It is pleaded that the respondent has filed a case u/s 306 IPC in
Saraidhela P.S. Case No-107/22, GR. Case No.2018/22 in ST Case
No-861/22 against the petitioner. The petitioner was in judicial
custody since 02.06.2022 and, in the meanwhile, when he was in jail
the respondents forcibly taken custody of the child of the petitioner
and ruining the future of the minor child.
(iii) It is further stated that after taking in custody the respondent
neglected to pay school fee of his son. His son is studying in DPS
School, Class-Nursery.
(iv) It is alleged that after taking custody of the minor child the
respondents have refused to hand over the custody of child to the
petitioner who is non else but the real father of the minor child.
3. On the aforesaid ground, the petitioner-appellant, has, therefore,
prayed for passing an order directing the respondents to hand over the
custody of the minor child to him and to appoint him the guardian of the
child.
4. It needs to mention herein that in Original Suit No.1136 of 2022
upon issuance of the notices, the respondents, who are the maternal
grandfather and maternal grandmother of the minor (the respondents
herein) have appeared and filed a written statement denying all the
allegations levelled against them by the petitioner-appellant.
5. It is alleged in the written statement that the suit filed by
petitioner/appellant is not maintainable either in law or in the fact and
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hence liable to be dismissed in Limine and the instant suit has been filed
with an ulterior motive.
6. It is further stated that it is admitted fact that daughter of the
respondents, namely, Soni Kumari was married to the petitioner. At the
time of the marriage, the daughter of the respondent was employed as
teacher in Central School, Chennai.
7. It is alleged that the petitioner used to torture Soni Kumari
physically and mentally and demand her salaries failing which the
petitioner had beaten her continuously.
8. It is stated that the matter was informed to Dhansar PS thereafter,
spouses started living separately.
9. It is further stated that the respondent is a businessman and
earning handsome amount and is capable to provide education to child and
may take care the child. The respondent is an assesses of income-tax.
10. It is stated that the petitioner is neither entitled nor suitable for
being appointed as guardian to the minor child and the case is fit to be
dismissed.
11. Learned Family Judge, after institution of the said case, taking
into consideration of the pleadings of the parties has formulated the issues
and has decided the lis by dismissing the suit.
12. The aforesaid judgment, by which the prayer of the petitioner-
appellant for appointment of a guardian of the minor child, namely,
Shivansh and for custody and declaring him to be lawful guardian has been
dismissed, is under challenge by filing the instant appeal.
Submission on behalf of the petitioner-appellant:
13. Mr. Sanjay Prasad, the learned counsel appearing for the
petitioner-appellant has taken the following grounds:
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(i) As has been submitted by the learned counsel appearing
for the petitioner-appellant that the reason for dismissal of the
suit is that the learned Family Judge has gone into the issue
of welfare of the minor without taking into consideration the
issue of father being the natural guardian.
(ii) It has been contended that the relationship of the husband
with the wife (now deceased) was not strained rather child
was living with the father at the time of death of his wife but
with the ulterior motive, the minor was taken away by the
respondents, who are the maternal grandfather and maternal
grandmother of the minor and since then the minor has not
been allowed to come to the residence of the father (the
appellant herein).
(iii) Even the issue of welfare of the minor although has been
taken into consideration by the learned Family Judge but
without taking into consideration the fact that there is no
consideration on the issue of welfare of the minor, since, the
minor was admitted in the School of repute, namely, the Delhi
Public School, Dhanbad and thereafter, the minor had been
admitted in another School, i.e., B.N. Public School which is
not of the same standard as that of the Delhi Public School,
Dhanbad which itself suggest that there is no consideration
of welfare of the minor although while answering the issue
no.4 along with the issue no.3 such consideration has been
made that the welfare of the minor is to be taken into
consideration but the question is that when the minor who had
admitted in the Delhi Public School, Dhanbad but deleting
4
2025:JHHC:19868-DBhis name from that School admitting in the School which is
inferior to that of Delhi Public School, Dhanbad then how can
it be said that the issue of welfare of the minor has been taken
into consideration by the father, the appellant herein.
(iv) It has been contended that although the mother of the
minor is no more but there are other family members who are
to take care of the interest of the minor but even the same has
not been taken into consideration by the learned Family
Judge.
14. The learned counsel, based upon the aforesaid ground, has
submitted that the impugned judgment and decree is suffering from
perversity, therefore, needs interference.
Submission on behalf of the respondents:
15. Per contra, Mr. Shailesh Kumar Singh, the learned counsel
appearing for the respondents has taken the following grounds:
(i) There is no error in the impugned judgement as the learned
Family Judge has considered the entire issue and on the
basis of evidence as led by the petitioner-appellant has
passed the order impugned as such same may not be
interfered with.
(ii) It has been contended that the issue of welfare as per the
provision provided under Hindu Minority and
Guardianship Act, 1956 is required to be taken into
consideration, exactly the same has been taken into
consideration by the learned Family Judge while dealing
with the specific issues formulated by the learned Family
Judge as issue nos. (III) and (IV).
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(iii) It has been contended that after the death of the mother
there is no one to take care of the minor, since it is admitted
case of the appellant that the minor will be taken care of by
the wife of his brother.
(iv) It has also been contended that even the paternal
grandmother of the minor is also not alive and paternal
grandfather is aged about 84 years.
(v) The contention has been raised by the learned counsel
appearing for the respondents that so far as the schooling
of the minor is concerned it is incorrect on the part of the
petitioner-appellant to take the ground that the B.N. Public
School is inferior to that of Delhi Public School, Dhanbad,
rather after taking concrete decision and in the welfare of
the minor the re-admission in the B.N. Public School has
been done.
(vi) It has been contended that merely on the ground of
admitting the minor in the particular School does not mean
that there is no consideration on the issue of welfare of the
minor.
(vii) The contention has been raised that it has come in the
evidence of the petitioner-father, who has deposed as PW1
that everything has been done by the respondents side for
the purpose of taking money of Rs.10 lakhs which was to
be paid after death of the mother of the minor but exactly
the said amount has already been disbursed in favour of the
petitioner-appellant and, hence, such averment which has
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been deposed by the father, itself suggests that only for the
purpose of making out a case such allegation has been
levelled against the respondents.
(viii) It has also been contended that the learned Family Judge
has taken into consideration the entire facts on the basis of
the spirit of the statutory provision and on consideration of
the issue of the welfare of the minor the custody has not
been handed over in favour of the appellant-father.
16. Learned counsel, based upon the aforesaid grounds, has
submitted that the learned Family Judge has rightly recorded its finding
that the petitioner could not be able to prove the case for custody of minor
child, hence, the impugned judgment cannot be said to suffer from an error.
Analysis:
17. We have heard the learned counsel appearing for the parties,
gone through the impugned judgment and the findings thereof, as also the
testimonies of the witnesses and evidences available on record.
18. The learned Family Judge has formulated altogether five issues,
for ready reference the same are being quoted hereinbelow:
I. Whether the suit is maintainable in its present form?
II. Whether the petitioner has got valid cause of action for the suit?
III.Who will be the guardian of the ward?
IV.Who will serve the welfare of the ward?
V.Whether petitioner is entitled for the relief as claimed for?
19. In pursuance to the notice issued to the respondents, they have
appeared in the present proceeding and, as such, we with the consent
thereof, at this stage, have heard the matter on merit at length.
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20. The issue which requires consideration in the present proceeding
is that as to whether while giving finding by dismissing the suit by denying
the custody of the minor in favour of the petitioner-appellant can be said
to be suffer from an error?
21. This Court before considering the said issue needs to refer herein
the factual background of the present case as to what warranted the
appellant to file a suit before the competent Court of jurisdiction by filing
an application under the provision of the Hindu Minority and Guardianship
Act, 1956.
22. In support of his contention, the petitioner-appellant has adduced
two witnesses including himself as PW1. He has also produced some
documents which have been marked as exhibits which are as under:
Ext.1 is the School certificate for non-attendance of petitioner’s son
Shivansh Sinha, Ext.2 is the certified copy of order sheet of complaint case
no.1434 of 2023, Ext.3 is the certified copy of plaint petition of complaint
case no. 1434/23, Ext.4 to 4/1 are certified copy of deposition of Triyugi
Modi and Murlidhar Burnwal in Complaint Case No.1434/23, Copy of
ITR of petitioner for the Assessment Year 2022-23 is marked ‘X’ for
identification, Copy of School Fee receipts are marked “X/1 to X/7 for
identification, copy of admission fee receipt is marked as X/8 for
identification, copy of school fee receipts are marked as X/9 to X/14 for
identification and copy of book purchase receipt is marked as X/15 for
identification.
23. On the other hand, the respondents have adduced only one
witness, i.e., the respondent no.1-Baleshwar Prasad himself has been
examined as DW1 and produced some documentary evidence which have
been marked exhibits as under:
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Ext.-A is the certified copy of FIR of Saraidhela PS Case No.107/22, Ext.-
B is the certified copy of charge-sheet of Saraidhela PS Case No.107/22,
Ext.-C is certified copy of cognizance order in Saraidhela PS Case
No.107/22, Ext.-D is Bonafide certificate and copy of bond paper is
marked as ‘Y’ for identification.
24. The learned Family Judge on consideration of the evidence of the
witnesses and on consideration of the issue of welfare of the minor has
dismissed the suit against which the present appeal based upon the grounds
agitated on behalf of the parties as referred hereinabove.
25. This Court before considering the aforesaid rival submission and
propriety of the impugned judgment needs to discuss herein the relevant
part of the evidences adduced on behalf of the parties as also to refer the
statutory provision as provided under the Hindu Minority and
Guardianship Act, 1956 and as also the Guardians and Wards Act, 1890.
26. Section 6 of the Hindu Minority and Guardianship Act, 1956
deals with natural guardian of a Hindu minor, Section 9 thereof deals with
the testamentary guardians and their powers and Section 13 deals with the
provision of welfare of the minor to be paramount consideration. For ready
reference, these provisions are quoted as under:
“6. Natural guardians of a Hindu minor.–The natural guardians 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 in joint
family property), are– (a) in the case of a boy or an unmarried girl–
the father, and after him, the mother: provided that the custody of a
minor who has not completed the age of five years shall ordinarily be
with the mother; (b) in the case of an illegitimate boy or an illegitimate
unmarried girl–the mother, and after her, the father; (c) in the case of
a married girl–the husband: Provided that no person shall be entitled
to act as the natural guardian of a minor under the provisions of this
section– (a) if he has ceased to be a Hindu, or (b) if he has completely
and finally renounced the world by becoming a hermit (vanaprastha)9
2025:JHHC:19868-DBor an ascetic (yati or sanyasi). Explanation.–In this section, the
expressions “father” and “mother” do not include a step-father and a
step- mother.
9. Testamentary guardians and their powers.–(1) A Hindu father
entitled to act as the natural guardian of his minor legitimate children
may, by will appoint a guardian for any of them in respect of the minor’s
person or in respect of the minor’s property (other than the undivided
interest referred to in section 12) or in respect of both. (2) An
appointment made under sub-section (1) shall have no effect if the
father predeceases the mother, but shall revive if the mother dies
without appointing, by will, any person as guardian. (3) A Hindu widow
entitled to act as the natural guardian of her minor legitimate children,
and a Hindu mother entitled to act as the natural guardian of her minor
legitimate children by reason of the fact that the father has become
disentitled to act as such, may, by will, appoint a guardian for any of
them in respect of the minor’s person or in respect of the minor’s
property (other than the undivided interest referred to in section 12) or
in respect of both. (4) A Hindu mother entitled to act as the natural
guardian of her minor illegitimate children may; by will, appoint a
guardian for any of them in respect of the minor’s person or in respect
of the minor’s property or in respect of both. (5) The guardian so
appointed by will has the right to act as the minor’s guardian after the
death of the minor’s father or mother, as the case may be, and to
exercise all the rights of a natural guardian under this Act to such extent
and subject to such restrictions, if any, as are specified in this Act and
in the will. (6) The right of the guardian so appointed by will shall,
where the minor is a girl, cease on her marriage.
13. Welfare of minor to be paramount consideration.–
(1) In the appointment of declaration of any person as guardian of a
Hindu minor by a court, the welfare of the minor shall be the paramount
consideration. (2) No person shall be entitled to the guardianship by
virtue of the provisions of this Act or of any law relating to guardianship
in marriage among Hindus, if the court is of opinion that his or her
guardianship will not be for the welfare of the minor.”
27. It needs to refer herein that the word “after‟ as used in Section
6(a) can be construed so as to save it from being unconstitutional the
presumption being that the legislature acted in accordance with the
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constitution. Moreover, when Sections 4 and 6 of the Hindu Minority and
Guardianship Act are construed harmoniously the word “after‟ can be
understood to mean in the absence of, thereby referring to father’s absence
from the care of the minor’s property or person for any reason whatever.
28. It is evident from the mandate of the said Statute that although
the father has been made natural guardian but how to make balance in
awarding the custody of the minor, the wellbeing consideration even in the
Statute has been mandated by inserting the provisions under section 13
thereof.
29. It is evident from Section 13 that while appointing any person
as guardian of a Hindu minor the paramount consideration is the welfare
of the minor and no person shall be entitled to the guardianship by virtue
of the provisions of this Act or of any law relating to guardianship in
marriage among Hindus, if the court is of opinion that his or her
guardianship will not be for the welfare of the minor.
30. Section 13 of the Act of 1956 is very specific that there cannot
be compromise on the issue of the welfare of the minor even though the
father is natural guardian in view of the provision of section 6 of the Hindu
Minority and Guardianship Act, 1956.
31. The relevance of provision of section 13 of the Act of 1956 has
got bearing in the matter of custody of the minor if the sub-section 2 of
section 13 will be taken into consideration wherein the word starts “No
person shall be entitled to the guardianship by virtue of the provisions of
this Act or of any law relating to guardianship in marriage among Hindus,
if the Court is of opinion that his or her guardianship will not be for the
welfare of the minor”, meaning thereby, it is onus upon the Court to come
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to the satisfaction by making out a concrete opinion regarding the issue of
the welfare of the minor.
32. The law, therefore, is well settled that even though the father is
the natural guardian as stipulated in the statute but the paramount
consideration in the matter of handing over the custody of the child is
welfare of the child.
33. The law relating to custody of minors has received an exhaustive
consideration by the Hon’ble Apex Court in a series of pronouncements. In
the case of Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 the
principles of English and American law in this regard were considered by
Hon’ble Apex Court to hold that the legal position in India is not in any
way different. Noticing the judgment of the Bombay High Court
in Saraswatibai Shripad Ved v. Shripad Vasanji Ved [AIR 1941 Bom
103] , Rosy Jacob v. Jacob A. Chakramakkal (1973) 1 SCC 840 and
Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka (1982) 2
SCC 544, the Hon’ble Apex eventually concluded in paras 50 and 51
which reads as under:
“50. [T]hat when the court is confronted with conflicting demands made
by the parents, each time it has to justify the demands. The court has
not only to look at the issue on legalistic basis, in such matters human
angles are relevant for deciding those issues. The court then does not
give emphasis on what the parties say, it has to exercise a jurisdiction
which is aimed at the welfare of the minor. As observed recently in
Mausami Moitra Ganguli case [Mausami Moitra ( 2025:JHHC:15912-
DB ) Ganguli v. Jayant Ganguli, (2008) 7 SCC 673] , the court has to
give due weightage to the child’s ordinary contentment, health,
education, intellectual development and favourable surroundings but
over and above physical comforts, the moral and ethical values have
also to be noted. They are equal if not more important than the others.
51. The word „welfare‟ used in Section 13 of the Act has to be
construed literally and must be taken in its widest sense. The moral and
ethical welfare of the child must also weigh with the court as well as its12
2025:JHHC:19868-DBphysical well-being. Though the provisions of the special statutes which
govern the rights of the parents and guardians may be taken into
consideration, there is nothing which can stand in the way of the court
exercising its parens patriae jurisdiction arising in such cases.”
34. Thus, the Hon’ble Apex Court has categorically held that while
considering the issue of custody of the minor child the court has not only
to look at the issue on legalistic basis, in such matters human angles are
relevant for deciding those issues. Further it has been held that the Court
should not emphasis only on what the parties say rather the welfare of the
minor should be paramount consideration. Further the Hon’ble Apex Court
has opined that the Court has to give due weightage to the child’s ordinary
contentment, health, education, intellectual development and favourable
surroundings but over and above physical comforts, the moral and ethical
values have also to be noted. 34. The Hon’ble Apex Court in the aforesaid
Judgment interpreted the word „welfare‟ used in Section 13 of the Act and
has observed that it must be taken in its widest sense, though the provisions
of the special statutes which govern the rights of the parents and guardians
may be taken into consideration, there is nothing which can stand in the
way of the court exercising its “parens patriae jurisdiction” arising in such
cases.
35. It needs to refer herein that in child custody matters, the court’s
“parens patriae” jurisdiction empowers the Court to act as a guardian for
the child, prioritizing their best interests above all else. This principle,
allows the court to intervene and make decisions that protect the child’s
welfare, even if it means overriding the wishes of the parents or guardians.
36. In the case of Nil Ratan Kundu v Abhijit Kundu, 2008 (9) SCC 413
the Hon’ble Apex Court has held that in deciding a difficult and complex
question as to the custody of a minor, a court of law should keep in mind
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the relevant statutes and the rights flowing therefrom. But such cases
cannot be decided solely by interpreting legal provisions. It is a human
problem and is required to be solved with human touch. A court while
dealing with custody cases, is neither bound by statutes nor by strict rules
of evidence or procedure nor by precedents. In selecting proper guardian
of a minor, the paramount consideration should be the welfare and well
being of the child. In selecting a guardian, the court is exercising “parens
patriae jurisdiction” and is expected, nay bound, to give due weight to a
child’s ordinary comfort, contentment, health, education, intellectual
development and favourable surroundings. But over and above physical
comforts, moral and ethical values cannot be ignored. They are equally, or
we may say, even more important, essential and indispensable
considerations. If the minor is old enough to form an intelligent preference
or judgment, the court must consider such preference as well, though the
final decision should rest with the court as to what is conducive to the
welfare of the minor.
36. In the case of Yashita Sahu v State of Rajasthan, (2020) 3 SCC
67, the Hon’ble Apex Court has propounded that the welfare of the child
is paramount in matters relating to custody. In this context, we may refer
to Para 22 thereof, which reads as follows:
22. A child, especially a child of tender years requires the love,
affection, company, protection of both parents. This is not only the
requirement of the child but is his/her basic human right. Just because
the parents are at war with each other, does not mean that the child
should be denied the care, affection, love or protection of any one of the
two parents. A child is not an inanimate object which can be tossed
from one parent to the other. Every separation, every reunion may have
a traumatic and psychosomatic impact on the child. Therefore, it is to
be ensured that the court weighs each and every circumstance very
carefully before deciding how and in what matter the custody of the14
2025:JHHC:19868-DBchild should be shared between both the parents. Even if the custody is
given to one parent the other parent must have sufficient visitation
rights to ensure that the child keeps in touch with the other parent and
does not lose social, physical and psychological contact with any one
of the two parents. It is only in extreme circumstances that one parent
should be denied contact with the child. Reasons must be assigned if
one parent is to be denied any visitation rights or contact with the child.
Courts dealing with the custody matters must while deciding issues of
custody clearly define the nature, manner and specifics of the visitation
rights.’
37. In the case of Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471,
the Hon’ble Apex Court has observed that it is the welfare and interest of
the child and not the rights of the parents which is the determining factor
for deciding the question of custody and the question of welfare of the
child has to be considered in the context of the facts of each case and
decided cases on the issue may not be appropriate to be considered as
binding precedents. For ready reference the relevant paragraph of the
aforesaid judgment is being quoted as under:
14. From the above it follows that an order of custody of minor children
either under the provisions of the Guardians and Wards Act, 1890 or
the Hindu Minority and Guardianship Act, 1956 is required to be made
by the court treating the interest and welfare of the minor to be of
paramount importance. It is not the better right of either parent that
would require adjudication while deciding their entitlement to custody.
The desire of the child coupled with the availability of a conducive and
appropriate environment for proper upbringing together with the
ability and means of the parent concerned to take care of the child are
some of the relevant factors that have to be taken into account by the
court while deciding the issue of custody of a minor. What must be
emphasised is that while all other factors are undoubtedly relevant, it
is the desire, interest and welfare of the minor which is the crucial and
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ultimate consideration that must guide the determination required to be
made by the court.
38. It is settled position of law that there cannot be any straitjacket
formula in the matters of custody. “Welfare of the child” is of paramount
importance, reference in this regard may be taken from the judgment
rendered by the Hon’ble Apex Court in the case of Gautam Kumar Das v.
State (NCT of Delhi), (2024) 10 SCC 588.
39. In the case of Shazia Aman Khan v. State of Orissa, (2024) 7
SCC 564 the Hon’ble Apex Court while referring the ratio of Nil Ratan
Kundu v. Abhijit Kundu, (2008) 9 SCC 413 has observed that welfare of
the children is to be seen and not the rights of the parties, the relevant
paragraph of the aforesaid judgment is being quoted as under:
19. In Nil Ratan Kundu v. Abhijit Kundu [Nil Ratan Kundu v. Abhijit
Kundu, (2008) 9 SCC 413] , this Court laid down the principles
governing custody of minor children and held that welfare of the
children is to be seen and not the rights of the parties by observing as
under : (SCC pp. 428-29, paras 52 & 55) “Principles governing custody
of minor children 52. In our judgment, the law relating to custody of a
child is fairly well-settled and it is this. In deciding a difficult and
complex question as to the custody of minor, a court of law should keep
in mind relevant statutes and the rights flowing therefrom. But such
cases cannot be decided solely by interpreting legal provisions. It is a
human problem and is required to be solved with human touch. A court
while dealing with custody cases, is neither bound by statutes nor by
strict rules of evidence or procedure nor by precedents. In selecting
proper guardian of a minor, the paramount consideration should be the
welfare and well-being of the child. In selecting a guardian, the court is
exercising parens patriae jurisdiction and is expected, nay bound, to
give due weight to a child’s ordinary comfort, contentment, health,
education, intellectual development and favourable surroundings. But
over and above physical comforts, moral and ethical values cannot be
ignored. They are equally, or we may say, even more important,
essential and indispensable considerations. If the minor is old enough
to form an intelligent preference or judgment, the court must consider
such preference as well, though the final decision should rest with the16
2025:JHHC:19868-DBcourt as to what is conducive to the welfare of the minor. *** 55. We
are unable to appreciate the approach of the courts below. This Court in
a catena of decisions has held that the controlling consideration
governing the custody of children is the welfare of children and not the
right of their parents.” (emphasis supplied) 21. This Court in Roxann
Sharma v. Arun Sharma [Roxann Sharma v. Arun Sharma, (2015) 8
SCC 318 : (2015) 4 SCC (Civ) 87] , opined that the child is not a chattel
or ball that it is bounced to and fro. Welfare of the child is the focal
point. Relevant lines from para 18 are reproduced hereunder : (SCC p.
328) “18. … There can be no cavil that when a court is confronted by
conflicting claims of custody there are no rights of the parents which
have to be enforced; the child is not a chattel or a ball that is bounced
to and fro the parents. It is only the child’s welfare which is the focal
point for consideration. Parliament rightly thinks that the custody of a
child less than five years of age should ordinarily be with the mother
and this expectation can be deviated from only for strong reasons.” 20.
This Court has consistently held that welfare of the child is of
paramount consideration and not personal law and statute. In Ashish
Ranjan v. Anupma Tandon [Ashish Ranjan v. Anupma Tandon, (2010)
14 SCC 274 : (2011) 4 SCC (Civ) 948] , this Court held as under : (SCC
p. 282, para 19) “19. The statutory provisions dealing with the custody
of the child under any personal law cannot and must not supersede the
paramount consideration as to what is conducive to the welfare of the
minor. In fact, no statute on the subject, can ignore, eschew or obliterate
the vital factor of the welfare of the minor.” 22. Another principle of
law which is settled with reference to custody of the child is the wish of
the child, if she is capable of. Reference Gowda v. State can of be made
to Rohith Thammana Karnataka [Rohith Thammana Gowda v. State of
Karnataka, (2022) 20 SCC 550 : 2022 SCC OnLine SC 937] case. It
was held as under : (SCC para 18) “18. We have stated earlier that the
question „what is the wish/desire of the child‟ can be ascertained
through interaction, but then, the question as to „what would be the best
interest of the child‟ is a matter to be decided by the court taking into
account all the relevant circumstances. A careful scrutiny of the
impugned judgment would, however, reveal that even after identifying
the said question rightly the High Court had swayed away from the said
point and entered into consideration of certain aspects not relevant for
the said purpose. We will explain the raison d’etre for the said remark.”
40. Thus, from the aforesaid settled position of law it is evident that
the consideration governing the custody of children is the welfare of the
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children” and not the rights of the parties.” Further, the welfare of child is
determined neither by economic affluence nor a deep mental or emotional
concern for the well-being of the child. The answer depends on the
balancing of all these factors and determining what is best for child’s total
well-being.
41. In the backdrop of the aforesaid settled position of law this Court
is now adverting to the factual aspect of the present case in order to asses
as to the whether the findings so recorded by the learned Family Judge can
be said to suffer from an error by giving go by to the mandate of section
of the Hindu Minority and Guardianship Act, 1956 and further as to
whether while forming an opinion not to hand over the custody of the
minor, the learned Family Judge has committed an error by giving go by
to the provision of sub-section 2 of section 13 of the Hindu Minority and
Guardianship Act, 1956.
42. This Court while appreciating the argument advanced on behalf
of the appellant on the issue of perversity needs to refer herein the
interpretation of the word “perverse” as has been interpreted by the
Hon’ble Apex Court which means that there is no evidence or erroneous
consideration of the evidence.
43. The Hon’ble Apex Court in Arulvelu and Anr. vs. State
[Represented by the Public Prosecutor] and Anr., (2009) 10 SCC 206
while elaborately discussing the word perverse has held that it is, no
doubt, true that if a finding of fact is arrived at by ignoring or excluding
relevant material or by taking into consideration irrelevant material or if
the finding so outrageously defies logic as to suffer from the vice of
irrationality incurring the blame of being perverse, then, the finding is
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rendered infirm in law. Relevant paragraphs, i.e., paras-24, 25, 26 and 27
of the said judgment reads as under:
“24. The expression “perverse” has been dealt with in a
number of cases. In Gaya Din v. Hanuman Prasad [(2001) 1
SCC 501] this Court observed that the expression
“perverse” means that the findings of the subordinate
authority are not supported by the evidence brought on
record or they are against the law or suffer from the vice of
procedural irregularity.
25. In Parry’s (Calcutta) Employees’ Union v. Parry & Co.
Ltd. [AIR 1966 Cal 31] the Court observed that “perverse
finding” means a finding which is not only against the weight
of evidence but is altogether against the evidence itself.
In Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC
665 : AIR 1994 SC 1341] the Court observed that this is not
a case where it can be said that the findings of the authorities
are based on no evidence or that they are so perverse that no
reasonable person would have arrived at those findings.
26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant
58] the Court observed that any order made in conscious
violation of pleading and law is a perverse order.
In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed
that a “perverse verdict” may probably be defined as one
that is not only against the weight of evidence but is
altogether against the evidence.
In Godfrey v. Godfrey [106 NW 814] the Court defined
“perverse” as turned the wrong way, not right; distorted
from the right; turned away or deviating from what is right,
proper, correct, etc.
27. The expression “perverse” has been defined by various
dictionaries in the following manner:
1. Oxford Advanced Learner’s Dictionary of Current
English, 6th Edn.
“Perverse.–Showing deliberate determination to behave
in a way that most people think is wrong, unacceptable or
unreasonable.”
2. Longman Dictionary of Contemporary English,
International Edn.
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Perverse.–Deliberately departing from what is normal
and reasonable.
3. The New Oxford Dictionary of English, 1998 Edn.
Perverse.–Law (of a verdict) against the weight of
evidence or the direction of the judge on a point of law.
4. The New Lexicon Webster’s Dictionary of the English
Language (Deluxe Encyclopedic Edn.)
Perverse.–Purposely deviating from accepted or
expected behavior or opinion; wicked or wayward; stubborn;
cross or petulant.
5. Stroud’s Judicial Dictionary of Words & Phrases, 4th
Edn.
“Perverse.–A perverse verdict may probably be defined as
one that is not only against the weight of evidence but is
altogether against the evidence.”
44. This Court in order to consider the aforesaid issue once again
considering the evidences adduced on behalf of the parties which is evident
from the testimony of PW1, the petitioner-father, who has made out a case
having no welfare of the minor by taking the reason that the minor was
admitted in Delhi Public School, Dhanbad but the respondents are not
sending him to the said School and therefore as guardian he is entitled for
the custody of his son.
He has been cross-examined wherein he has stated that the
marriage was solemnized on 04.12.2017 and he is doing business of
Manihari and he is paying income tax for last one year. He has deposed
that his mother had died and his father is 84 years old. His annual income
is Rs. 4 lakhs. He has also filed income tax return. The reference of the
institution of the case by the respondent no.1 has also been made being
Saraidhela PS Case No.107 of 2022 under section 306 of the IPC against
him and in this case, he had gone to jail. The issue of demand of dowry
although has been denied as also factum of torture upon his wife has also
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been denied. The fact about Rs.10 lakhs deposited in the name of his wife
in SBI Life to which he has given an application to take the said amount
has been admitted.
45. PW2, the father of the petitioner has deposed that at the time of
death of his daughter-in-law (wife of the petitioner) the age of his grandson
(minor) was four years.
46. The respondent no.1 as DW 1 has deposed that at the time of
marriage the mother of the minor was teacher in the Central School. His
daughter was tortured physically and mentally due to demand of her salary.
The same was reported by him to the concerned police station and
thereafter his daughter and petitioner were started living separately.
Subsequently, his daughter had committed suicide and in consequence
thereof a First Information Report was lodged against the petitioner being
Saraidhela PS Case No.107 of 2022 under section 306 IPC.
He has been cross-examined and has deposed that he is doing
business of a Kirana Shop. The factum of prior to marriage of his younger
son marriage of his daughter with the petitioner he has stated that he came
to know about the said fact after the solemnization of marriage. He has
admitted that the marriage of the petitioner with his daughter was not
solemnized as per the will.
47. The learned Family Judge based upon the aforesaid deposition
has first answered the issue nos. III and IV, i.e., who will be the guardian
of the ward and who will serve the welfare of the ward.
48. The learned Family Judge has considered the issue of title of
guardian of the ward and his custody as also considered the implication of
section 4(b) of Hindu Minority and Guardianship Act, 1956 and section 13
thereof. The learned Family Judge has also referred while considering the
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issue of custody of the minor that what matter is to be considered by the
Court in appointing the guardian.
49. The learned Family Judge has considered the issue in the light of
the mandate of section 13 wherein the paramount bearing of the custody
of the minor and the welfare of the minor has been mentioned. The learned
Family Judge has also taken into consideration the entire aspects of the
matter regarding the issue of institution of an FIR under section 306 IPC
and the issue of demand of dowry of Rs.6 lakhs. The issue has also been
taken into consideration by the learned Family Judge that after the
marriage the relationship between the petitioner and his wife got strained
for which an information was also given to the concerned police station by
the wife where both spouses appeared and executed a bond and decided to
reside separately. The said document has been marked as ‘Y’ for
identification.
50. The learned Family Judge based upon the aforesaid ground has
come to a prima-facie opinion that the wife of the petitioner was subjected
to cruelty in her in-laws’ house and relationship between the parties was
not cordial since, both spouses started living separately since 06.03.2022
and, in the meanwhile, the wife of the petitioner has committed suicide. At
that time, the age of the minor son of the parties was about four years and
since then, he is residing with his maternal grandfather and maternal
grandmother (Nana & Nani)-the respondents herein.
51. The learned Family Judge in the aforesaid pretext has considered
the fact that since the minor is living with his maternal grandfather and
maternal grandmother and at that time, the age of the minor was four years
and he is studying in the School has also been taken into consideration.
The learned Family Judge has also taken into consideration that mother of
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the petitioner had died earlier and father of the petitioner is aged about 84
years. It has come in the evidence that after the mother of the petitioner
/husband there is no one in the family of the petitioner to take care of the
minor.
52. The learned Family Judge has also taken into consideration
based upon the evidence that the minor child is living in a joint family
along with his maternal grandfather and maternal grandmother (Nana and
Nani) whereas in the family of the petitioner there is no one to take care of
the minor child. Thereafter, the learned Family Judge after taking into
consideration of the judgment of the Hon’ble Apex Court in the case of
“Smt. Surinder Kaur Sandhu vrs. Sri Harbanse Singh Sandhu” reported
in AIR 1984 SC 1224; “Goverdhan Lal vrs. Gajendra Kumar” reported
in AIR 2002 Raj 148; and a judgment of this High Court in the case of
“Suman Kumari vrs. Sanjay Kumar” reported in 2023(4) JLJR 56 has
passed the impugned judgment by dismissing the suit.
53. Since we have considered the statutory provision as contained
under section 13 of the Hindu Minority and Guardianship Act, 1956 that
has been taken into consideration by the learned Family Judge for the
purpose of consideration of the issue as to with whom the welfare of the
minor child is to be secured.
54. There is no denial of the fact that the father is the natural guardian
as stipulated in the statute but the paramount consideration in the matter of
handing over the custody of the child is “welfare of the child” as per the
settled proposition of law which has been settled by the Hon’ble Apex
Court and same has been referred in the preceding paragraph.
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55. The learned Family Judge based upon the evidences as referred
hereinabove has considered the issue in the touch stone of the implication
of section 13 of the Hindu Minority and Guardianship Act, 1956.
56. Section 13 of the Act of 1956 has also been interpreted by the
Hon’ble Apex Court in the judgment referred hereinabove. This Court,
considering the aforesaid proposition laid down by the Hon’ble Apex
Court and keeping the mandate/implication of section 13 of the Hindu
Minority and Guardianship Act, 1956, is of the view that while dismissing
the suit denying the custody of the minor child in favour of the petitioner-
appellant the judgment passed in Original suit No.1136 of 2022 cannot be
said to be perverse and suffer from an error.
57. Thus, on the basis of the discussion made hereinabove, this
Court, therefore, is of the view that the judgment dated 14.11.2024 and the
decree dated 23.11.2024 passed in Original Suit No.1136 of 2022 by the
learned Family Judge need no interference.
58. Accordingly, the instant appeal stands dismissed.
59. Consequently, the interlocutory application being I.A No.9580
of 2025 stands dismissed.
60. Pending I.As, if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
(Pradeep Kumar Srivastava, J.)
Sudhir
Jharkhand High Court, Ranchi
AFR
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