Jharkhand High Court
Lakhimunni Marandi vs Baburam Murmu on 1 August, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:21684-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No.63 of 2023
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Lakhimunni Marandi, Aged about 28 Years, W/O- Late Suraj Murmu, D/O
Kamision Marandi, At present Resident of Matialghati (father's house)
P.O+ P.S:- Pakuria, Now resident of Moglabandh, P.O.+P.S.:- Pakuria,
Distrist: Pakur, Jharkhand. .......... Plaintiff/Appellant
Versus
1. Baburam Murmu, son of Late Hopna Murmu
2. Kapu Tudu, W/O Baburam Murmu, Both resident of village
Baliadanaga, P.O.+ P.S.:-Pakur (Town), District:- Pakur, Jharkhand
.... ... Defendant/Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Mr. Abhay Kumar Mishra, Advocate
For the Respondents : Mr. Manoj Kumar Choubey, Advocate
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C.A.V on 08.07.2025 Pronounced on 01/08/2025
Per Sujit Narayan Prasad, J.
The instant appeal under section 30 of the Guardians and Wards
Act, 1890 is directed against the judgment dated 28.01.2023 and the
decree dated 10.02.2023 passed in Original Suit No.02 of 2020 by the
learned Principal Judge, Family Court, Pakur (in short, Family Judge)
whereby and whereunder the petition filed under section 10 of the
Guardian and Wards Act, 1890 by the appellant herein for appointment of
the guardian of the person and property of the minor, namely, Sunny
Murmu, 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) It is pleaded that Sunny Murmu (minor) is the son of the deceased
Suraj Murmu and Sunny Murmu (minor) is the grandson of the
2025:JHHC:21684-DBabove-named defendants Baburam Murmu and Kapu Tudu resided
at village Baliadanaga, P.S. Pakur (Muffasil), District Pakur. The
plaintiff has further submitted that Suraj Murmu was a well-
educated and promising youth and his marriage was solemnized
with the plaintiff/appellant Lakhimunni Marandi on 13.04.2010
according to Santhal Sarna religion and custom and plaintiff’s father
Kamision Marandi is a reputed Homeopath Practitioner and he spent
a lot of money in the said marriage of the plaintiff/appellant, he
gifted costly articles including a new motor car to the married
daughter and son in law for their use and enjoyment and a list of
articles was prepared which was signed by the guests of both sides
as witnesses present in the marriage ceremony and finally the
articles were made over to the bridegroom’s father Baburam Murmu
who signed the carbon copy of the list and he took the articles to
Baliadanaga.
(ii) It is pleaded that the articles are worth above of Rs. 7 lakhs which
have been described in the Schedule set at the foot of this plaint,
marriage was held at Moglabandh and the plaintiff lived with
husband at his home at Baliadanaga and the couple was blessed
with a son who was born on 17.08.2013 and has been named Sunny
Murmu. The plaintiff/appellant was a trained nurse and after
marriage she desired to be a graduate and continued study after
marriage and in the month of November, 2018 she went to write her
B.A Exam at Deoghar when on 12.11.2018 she received a sad news
of husband’s death and she rushed to Balidanga, dead body was
taken to the burial place. She under shock arrived there and wanted
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to see face of the deceased but her father-in-law was not ready to
show then she started crying and fell at the feet of father in law and
then the villagers sympathetically allowed her to see.
(iii) It is pleaded that she was told by some villagers that the deceased
met an accident with a tractor while running on a motor bike but no
FIR was lodged or post mortem held and members in the in-law’s
family were not prepared to talk about death of Suraj and they also
did not like stay of plaintiff in the family any more after death of the
husband. They hated the widow plaintiff and suspected her to be a
witch; therefore, they looked down upon her she any how tolerated
the hatred and passed miserable days there and sometime also at
father’s place and in-laws tried to keep the minor Sunny Murmu
disconnected from the plaintiff as the child himself told the mother
that the grand parents have asked him not to talk to the mother
otherwise, they would beat him.
(iv) The plaintiff has further submitted that the child felt threatened and
terrorized and lastly on 04.12.2019 the in laws and their married
daughter Laxmi Murmu assaulted the plaintiff and drove her out of
home after snatching her minor son Sunny Murmu. Thereafter
frustrated plaintiff returned father’s home and is filing this plaint for
her appointment as guardian of minor Sunny Murmu and restoration
of the child and on 04.12.2019 is being the cause of action. The
plaintiff has further submitted that being widow of the deceased
Suraj Murmu is now representative of the deceased husband to take
care of the minor Sunny Murmu and take possession of the minor
as her right to maintain him and impart proper education but the
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defendants have illegally deprived her of the rights and the minor
remains gloomy with Shabby clothes in the hands of the defendants
and after death of Suraj Murmu his minor son Sunny Murmu is his
only heir to inherit him and she is entitled to the articles given in
marriage by her father which are movable property and now in
possession of the respondents which may be ruined by sale or
improper handling.
(v) It is further pleaded the parties are governed by Santhal customary
law wherein the plaintiff mother is representative of the deceased
husband and has right to take care of her minor son, bring him up
and educate properly, she has capacity to do so because and she
works in the clinic of her father at Pakuria and she being well versed
in female diseases the number of patients has increased
considerably. Her father has fully agreed to cooperate the plaintiff.
The plaintiff has further submitted that the other relations of the said
minor now living are (a) Laxmi Murmu D/o Baburam Murmu who
is father’s married sister of the minor she resides with the defendants
in their house with husband and children at Baliadanaga, P.S. Pakur
(Muffasil), District Pakur.(b) Kamision Marandi maternal
grandfather of minor resident of Maliaghati, P.S.Pakuria, Dist.
Pakur.
(vi) It is pleaded that no guardian of the person or property of the said
minor has been appointed either by the will of the deceased Suraj
Murmu or by court and the plaintiff being mother of the minor is
sincerely making this plaint for her appointment as guardian she has
good earning in father’s clinic and father also fully supports her and
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as such she is proper and fit person for appointment as guardian and
it is for the welfare of the minor that he be given in the custody of
his mother and there cannot be any person other than mother for the
welfare of the minor to show nearness and kindness.
(vii) It is pleaded that the defendants have kept Laxmi Murmu the
daughter who has her family and now she is dominant in the family
and in their presence the minor Sunny Murmu is neglected one and
in fact, in absence of mother the said minor naturally remains
sad. The nature took away his father and the respondent drove out
the mother, so the minor now deprived of both the parents, he finds
no one to render natural love to him as other children find.
3. On the aforesaid ground, the appellant has prayed for following:
(i) the plaintiff may be appointed the guardian of the person and
property of the said minor
(ii) the minor may be given in custody of the plaintiff and the
property mentioned in the Schedule of this plaint may be restored to
the plaintiff.
4. It needs to mention herein that in Original Suit No.02 of 2020
upon issuance of the notices, the respondent has appeared and filed a
written statement. The defendants has stated in their written statement
inter alia that the parties belong to Schedule Tribe by caste and as such
they are governed by Santhal Customary Law and the plaintiff suit for
appointment of guardian of minor Sunny Murmu U/s 10 of the Guardians
and Wards Act, 1890 is not maintainable either under the facts or under
the law. The defendants have further submitted that it is true that the
plaintiff married with defendant’s son namely Suraj Murmu of
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Beliyadanga, Pakur on 13th April, 2010 as per Santhal Custom and Rites
but it is totally false to say that the father of the plaintiff Kamision Marandi
gave huge articles as per the list mentioned in the schedule and spent huge
amount at the time of marriage. It was an ideal marriage so there was no
give and take between them as per custom the defendants have given 6
Mann of paddy to the father of the plaintiff as Gonom and the defendants
had gone to plaintiff’s house at Monglabandh, P.S. Pakuria, District Pakur
along their son Suraj Murmu (now dead) along with Barat at his own
expenses to celebrate the marriage ceremony. The defendants have further
submitted that the father of the plaintiff has gifted costly articles
mentioned in the schedule is totally false and baseless and the father of the
plaintiff did not give any articles to Suraj Murmu or the defendants at the
time of marriage, only a motorcar was given by him as gift to Suraj Murmu
(now dead) for the convenience of commutation of the plaintiff and her
husband. It is further submitted that the plaintiff has prepared forged
documents with a view to implicate and harass the defendants. After the
marriage the plaintiff came to the house of her husband and led a peaceful
conjugal life for 5 years and due to their wedlock a son was born on
17.08.2013 whose name is Sunny Murmu and after the birth of the son,
the plaintiff began to create trouble to the son of the defendants to settle at
Sasural at Monglabandh, P.S. Pakuria, District Pakur being separate from
his parents which was denied by the defendants’ son Suraj Murmu as a
result of which the plaintiff refused to live at Beliyadanga in the house of
the defendants as a result of which a dispute was cropped up.
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5. The defendants have further submitted that the defendants and
their son tried to reconcile the matter but in vain and their son went several
times to bring her back but she did not come.
6. It is further submitted that she flatly denied saying that she will
not live in Pakur at the house of the defendants and the son of the
defendants waited upto one year with a hope that the matter will be settled
but in vain and lastly the plaintiff and her parents put a proposal before the
defendant’s and their son for divorce. It is further asserted that thereafter a
Gramin Bhaithak on 2nd of December, 2017 was held in the village
Beliyadanga and both the plaintiff and the defendants’ son Suraj Murmu
divorced each other by pouring the water from the leg and by tearing the
sal leaves in the presence of the parents of both husband and wife and
villagers and defendants of her family did not accept the son Sunny
Murmu as a result of which Sunny began to live with his father Suraj
Murmu who took care of his son under the guidance of the parents. Since
then, the plaintiff began to live at Monglabandh, P.S. Pakuria, District –
Pakur with her parents having no connection at all with her son, Sunny
Murmu, her husband Suraj Murmu and the defendants.
7. The defendants have further submitted that suddenly on 13th
November, 2018 the son of the defendants namely Suraj Murmu died and
after the death of Suraj Murmu his minor son Sunny Murmu began to
live with his grandparents (defendants) and plaintiff neither took care nor
she came to meet with her son Sunny Murmu from the date of divorce to
till date and even on the death of her husband the plaintiff did not turn up.
The defendants have further submitted that plaintiff neither came to see
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the face of the deceased nor came to see her minor son Sunny Murmu from
the date of divorce.
8. The defendants have further submitted that the defendant Suraj
Murmu died due to severe cold. On 12.11.2018 Suraj Murmu had gone to
Kalidaspur Dungri Tola to meet his MAMA which is about 8-9 Km from
the house of the defendants and in spite of several forbidance he did not
stay at the MAMA’S house and rushed from Dungri Tola to Pakur by
motorcycle vide registration no. JH16A/3262. At about 10:00 P.M his
father Baburam Murmu rang up to his son to know where he was but he
did not pick up the phone just after 10 minutes at 10:10 P.M he reached
his house and his position was not good as his entire body was shivering
from cold and as soon as he reached, primary home treatments were started
and a doctor was called but he died after about 2 hours, i.e, about 12:20
PM. The defendants have further submitted that the doctor issued a
certificate to this effect on 02.12.2018 and as such the question of post
mortem does not arise. The defendant has further submitted that Lakhmi
Murmu is married with Vimal Kisku (on 13/11/18) at night before the
arrival of the doctor. son of Wilson Kisku of Dhanbad, P.S. Hiranpur,
District – Pakur and she lives at SASURAL and off and on she visits her
father’s house and as such question of assaulting and terrorizing on the part
of Lakshmi Murmu does not arise and it is necessary to mention here that
a divorce has been commenced between the defendants’ son Suraj Murmu
and the plaintiff much earlier, i.e, on 02.11.2016 and the plaintiff lives
with her father at Monglabandh, P.S. Pakuria, District Pakur so the
question of torture and demand does not arise.
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9. The defendants have further submitted that the divorce was
commenced on 02.11.2016 as per their custom between the plaintiff and
the defendant’s son Suraj Murmu and since then the minor Sunny Murmu
is living under the care and custody of his father Suraj Murmu and after
the death of Suraj Murmu, Sunny Murmu is living with the defendants and
his reading in class U.K.G. in St. Joseph English Medium School, Pakur
and after expiry of three years the plaintiff filed this petition for the
custody of her child only with a view to ruin his life with a malafide
intention which is very suspicious. The defendant has further submitted
that plaintiff is an unemployed lady having no source of income and she
is fully dependent upon her father and plaintiff’s father is a simple
homeopathic doctor having no sufficient means to give proper education
and maintenance to his daughter’s son Sunny Murmu and assertions made
in the para regarding working in the clinic with her father in Pakuria and
she being well versed in the female diseases is completely false. So far as
defendants know the plaintiff has no valid license of practicing as a doctor.
10. The defendants have further submitted that moreover the
plaintiff used to live at Monglabandh, P.S.-Pakuria, District-Pakur which
is an interior place having no proper communication and facility of proper
education and if Sunny Murmu lives under the custody of his mother, he
will not get proper education and his future will be dark. Defendant no. 1,
Baburam Murmu is a ration dealer having sufficient landed property and
means to maintain the minor Sunny Murmu by giving proper education
and a better life. If the child Sunny Murmu given under the custody of the
plaintiff his life will be dark and the welfare of the minor will be
jeopardized.
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11. The defendants have further submitted that moreover the custody
of minor the grandfather has the pre-existing rights as because the plaintiff
is a divorcee and in these circumstances the plaintiff is disqualified to be
appointed as legal guardian in preference of grandfather as because the
plaintiff is neglecting the minor Sunny Murmu from the very beginning.
12. The defendants have further submitted that the defendants are
maintaining the minor Sunny Murmu for his welfare and with utmost love
and affection the sustenance and schooling are safe in the hands of the
defendants and the grandfather of the minor Sunny Murmu is the
custodian and considering the welfare, sustenance and wellbeing of the
minor which are the paramount considerations rest upon the grandfather.
13. The defendants lastly prayed that the plaint of the plaintiff is not
entitled to get any relief as claimed for and the plaint of the plaintiff is fit
to be dismissed with cost.
14. 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.
15. The aforesaid judgment by which custody of the minor has been
denied by the learned trial Court is under challenge by filing the instant
appeal.
Submission on behalf of the appellant-husband:
16. Mr. Abhay Kumar Mishra, the learned counsel appearing for the
appellant has taken the following grounds while challenging the impugned
judgment:
(i) It has been contended that the learned Family Judge has
not taken into consideration that the appellant is the mother and,
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guardianship/custody.
(ii) The learned trial Court has committed a gross error by not
taking into consideration the issue of welfare of the child who can
better be nourished by the mother and ignoring the said fact has
dismissed the petition filed under section 10 of the said Act by
assigning the reason that the child is living since birth with the
respondent but while coming to such finding no consideration has
been given with respect to the issue of better claim even accepting
the claim that the child is living with the grand-parents but the
appellant being the mother is having better claim over the grand-
parents.
17. The learned counsel based upon the aforesaid ground has
submitted that the impugned judgment and decree, therefore, is not
sustainable in the eyes of law and it requires interference by this Court.
Submission on behalf of the respondent-wife:
18. Mr. Manoj Kumar Choubey, the learned counsel appearing for
the respondent-wife has taken the following grounds:
(i) There is no error in the impugned judgement. The learned
Family Judge has considered the entire issue and on the
basis of evidence as led by the parties has passed the order
impugned as such same may not be interfered with.
(ii) It has been contended that the issue of welfare is well to be
looked into by the grand-parents on the basis of the fact that
since his birth the child is living with the grand-parents.
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(iii) It has been contended that the mother has taken no care
rather she has left the house on her own and the minor is
living with the grand-parents, hence, it is the grand-parents
(respondents herein) to be more concerned with the welfare
of the minor.
19. Learned counsel has submitted that the learned Family Judge on
consideration of the aforesaid fact has denied the custody of the minor to
be given in favour of the appellant herein, hence, the impugned judgment
needs no interference.
20. In response thereto, a submission has been made on behalf of the
appellant that it is incorrect on the part of the appellant that she has left
the house on her own will rather she has forced to leave the house after
death of her husband on the allegation of witchcraft and she is having no
option but to leave the house and while forcing her to leave the house her
baby child has been taken, kept by the respondents in their custody.
Analysis:
21. We have heard the learned counsel appearing for the parties,
gone through the impugned judgment as well as the Trial Court Records,
as also the testimonies of the witnesses and the documents exhibited
therein.
22. In the aforesaid backdrop, the petition has been filed under
section 10 of the Guardian and Wards Act, 1890 by the mother (the
appellant herein) against the grand-parents to appoint her as guardian of
the person and property of the minor, namely, Sunny Murmu aged on the
date of passing the judgment of about 6 years with a further prayer to direct
the respondents herein/defendants to the suit.
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23. The learned Family Judge on consideration of the fact that the
minor is living with the respondents/defendants since the birth, after death
of his father, has refused to pass positive direction in favour of the
appellant against which the present appeal has been preferred by the
mother.
24. 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 Plaintiff has got valid cause of action for the suit?
iii) Whether this court has got jurisdiction to try the suit ?
iv) Whether the plaintiff being the mother of the child entitled to having custody
of the child as prayed ?
v) Whether the custody of minor child in the hand of plaintiff is for his better
welfare and education?
vi) Any other relief/reliefs, the plaintiff is entitled to ?
25. First of all, the learned Family Judge has taken into consideration
the issue no (iv) and (v) and the learned Family Judge has considered the
evidence adduced on behalf of the parties for deciding the issues involved
in Original Suit No.02 of 2020.
26. This Court in order to appreciate the aforesaid rival submission
before entering into the legality and propriety of the impugned judgment
needs to discuss herein the relevant part of the evidences adduced on
behalf of the parties before the learned Family Court, wherein to appoint
the guardian of the person and property of the minor Sunny Murmu both
the parties have adduced their evidence.
27. During the trial, four witnesses have been examined on behalf of
the appellant who himself has been examined PW1 and exhibited some
documents. PW2-Kamishan Marandi is the father of plaintiff, PW3 is
Mistri Kisku and PW4 is Sunil Kisku who knows both the parties.
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28. The plaintiff has also produced some documentary evidence
which have been exhibited by the learned Family Judge. Carbon copy of
list of articles has been marked as Ext.1 and signature in carbon copy of
list of articles has been marked as Ext.2.
29. On the other hand, in support of his case the defendant has also
examined four witnesses. The defendant has been examined himself as
DW1, DW2 Kapu Tudu is the grandmother of the minor Sunny Murmu,
DW3 is Wakil Tudu and DW4 is Sunil Tudu.
30. The defendant has also produced some documentary evidence.
The school fee receipt has been marked as Ext.A to A/10, Tuition Fee Card
has been marked as Ext.B and xerox copy of tuition fee card has been
marked as Ext.X.
31. P.W.1 Lakhimunni Marandi has stated in her examination-in-
chief that Sunny Murmu is her minor son and she filed the case of the
custody of the minor son as natural guardian. She further stated that her
marriage was solemnized with the Suraj Murmu on 13.04.2010 according
to Santhal Sarna religion and custom and her father spent a lot of money
in the said marriage. Her father has gifted costly articles including a new
AC motor car, colour TV, Godrej Almirah to son in law and her daughter
for their use and enjoyment and a list of articles was prepared
which was signed by the guests of both sides as witnesses present in the
marriage ceremony and finally the articles were made over to the
bridegroom’s father Baburam Murmu who signed the carbon copy of the
list and he took the articles to Baliadanaga. The articles are more than
worth of Rs. above 7 lakhs which have been described in the Schedule set
at the foot of this plaint, marriage was held at Moglabandh and she lived
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with husband at his home at Baliadanaga and the couple was blessed with
a son who was born on 17.08.2013 now the age of son is 7 years and has
been named Sunny Murmu. PW1 further stated that she is a trained nurse
and after marriage she desired to be a graduate and continued study after
marriage and in the month of November, 2018 she went to write her B.A.
Exam at Deoghar when on 12.11.2018 she received a sad news of
husband’s death and she rushed to Balidanga, dead body was taken to the
burial place. She under shock arrived there and wanted to see face of the
deceased but her father-in-law was not ready to show then she started
crying and fell at the feet of father-in-law and then the villagers
sympathetically allowed her to see. The plaintiff has further submitted that
she was told by some villagers that the deceased met an accident with a
tractor while running on a motor bike but no FIR was lodged or post
mortem held and member’s in the in-law’s family were not prepared to talk
about death of Suraj and they also did not like her stay in the family any
more after death of her husband. They hated the widow and suspected her
to be a witch; therefore, they looked down upon her she any how tolerated
the hatred and passed miserable days there and sometime also at father’s
place and in-laws tried to keep the minor Sunny Murmu disconnected her.
The child himself told the mother that the grand parents have asked him
not to talk to the mother otherwise they would beat him. The child felt
threatened and terrorized and lastly on 04.12.2019 the in laws and their
married daughter Laxmi Murmu assaulted her and drove her out of home
after snatching her minor son Sunny Murmu. Thereafter she returned to
her father’s home and is filing this suit for her appointment as guardian of
minor Sunny Murmu and restoration of the child. She is being widow of
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the deceased Suraj Murmu is now representative of the deceased husband
to take care of the minor Sunny Murmu and take possession of the minor
as her right to Murmu and to maintain him and impart proper education
but the defendants have illegally deprived her of the rights and the minor
remains gloomy with Shabby clothes in the hands of the defendants and
after death of Suraj Murmu his minor son Sunny Murmu is his only heir
to inherit him and she is entitled to the articles given in marriage of her
father which are movable property and now in possession of the defendants
which may be ruined by sale or improper handling. She has capacity to do
so because and she works in the clinic of her father at Pakuria and she
being well versed in female diseases the number of patients has increased
considerably. Her father has fully agreed to cooperate the plaintiff. No
guardian of the person or property of the said minor has been appointed
either by the will of the deceased Suraj Murmu or by court and the plaintiff
being mother of the minor is sincerely making this plaint for her
appointment as guardian she has good earning in father’s clinic and father
also fully supports her and as such she is proper and fit person for
appointment as guardian and it is for the welfare of the minor that he be
given in the custody of his mother and there cannot be any person other
than mother for the welfare of the minor to show nearness and kindness.
She may be appointed the guardian of the person and property of the said
minor son and her minor son may be given in her custody.
During cross-examination she stated that she can file the birth
certificate of Sunny Murmu but she did not file the same. Her son was
born in her house and not in hospital. In para 21 she stated that she has
received the information of death of her husband at 08:00 A.M. She gave
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half exam and came to Pakur at 03:00 O’clock. In para 29 she stated that
the child was studying at Little Angle School at Kurapara. After Little
Angle, her son was studying at St. Joseph School and now the child is
living with his grandfather and grandmother. Last two years she does not
know whereabout of the child but child is in matrimonial house. She has
no school paper of the child in all the papers the signature is of the father
and grandfather of the child. In para 35 she stated that she knows Bimal
Kisku who is her Nandoshi (brother-in-law). In para-41 she stated that she
does not know how her husband death occurred because at that time she
was not present there. Her father-in-law has a PDS Shop. She does not
know how much land is in the possession of her father-in-law.
32. PW2- is Kamishan Marandi who is father of the plaintiff. He has
stated on oath in his examination-in-chief that his daughter has filed the
case of the custody of the minor son Sunny Murmu as natural guardian.
He has further stated that his daughter’s marriage was solemnized with the
Suraj Murmu on 13.04.2010 according to Santhal Sarna religion and
custom and he spent a lot of money in the said marriage. He had gifted
costly articles including a new AC motor car, colour TV, Godrej Almirah
to son-in-law and his daughter for their use and enjoyment and a list of
articles was prepared which was signed by the guests of both sides as well
as witnesses present in the marriage ceremony and finally the articles were
made over to the bridegroom’s father Baburam Murmu who signed the
carbon copy of the list and his daughter took the articles to Baliadanaga.
The articles are worth more than above Rs. 7 lakhs which have been
described in the Schedule set at the foot of this plaint, marriage was held
at Moglabandh and she lived with husband at his home at Baliadanaga and
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the couple was blessed with a son who was born on 17.08.2013 now the
age of sons is 7 years and has been named Sunny Murmu. He further stated
that she is a trained nurse and after marriage she desired to be a graduate
and continued study after marriage and in the month of November, 2018
she went to write her B.A Exam at Deoghar when on 12.11.2018 she
received a sad news of husband’s death and she rushed to Balidanga, dead
body was taken to the burial place. She under shock arrived there and
wanted to see face of the deceased but her father-in-law was not ready to
show, then she started crying and fell at the feet of father-in-law and then
the villagers sympathetically allowed her to see. The plaintiff has further
submitted that she was told by some villagers that the deceased met an
accident with a tractor while running on a motor bike but no FIR was
lodged or post mortem held and members in the inlaws family were not
prepared to talk about death of Suraj and they also did not like her stay in
the family any more after the death of her husband. They hated the widow
and suspected her to be a witch, therefore, they looked down upon her, she
any how tolerated the hatred and passed miserable days there and
sometime also at father’s place and in-laws tried to keep the minor Sunny
Murmu disconnected with her. The child himself told the mother that the
grand parents have asked him not to talk to the mother otherwise they
would beat him. The child felt threatened and terrorized and lastly on
04.12.2019 the in laws and their married daughter Laxmi Murmu assaulted
her and drove her out of home after snatching her minor son Sunny
Murmu. Thereafter she returned to her father’s home and is filing this suit
for her appointment as guardian of minor Sunny Murmu and restoration of
the child. She is being widow of the deceased Suraj Murmu is now
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representative of the deceased husband to take care of the minor Sunny
Murmu and take possession of the minor as her right to maintain him and
impart proper education but the defendants have illegally deprived her of
the rights and the minor remains gloomy with Shabby clothes in the hands
of the defendants and after death of Suraj Murmu his minor son Sunny
Murmu is his only heir to inherit him and she is entitled to the articles
given in marriage by her father which are movable property and now in
possession of the defendants which may be ruined by sale or improper
handling. She has capacity to do so because she works in the clinic of her
father at Pakuria and she being well versed in female diseases, the number
of patients has increased considerably. Her father has fully agreed to
cooperate the plaintiff. No guardian of the person or property of the said
minor has been appointed either by the will of the deceased Suraj Murmu
or by Court and the plaintiff being mother of the minor is sincerely making
this plaint for her appointment as guardian as she has good earning in
father’s clinic and father also fully supports her and as such she is proper
and fit person for appointment as guardian and it is for the welfare of the
minor that he be given in the custody of his mother and there cannot be
any person other than mother for the welfare of the minor to
show nearness and kindness. She may be appointed the guardian of the
person and property of the said minor son and her minor son may be given
in her custody.
During cross-examination he has stated that in para 27 his
daughter was studying IGNUE. The study of IGNUE is at the house. His
daughter went to Deoghar from Pakur for examination. She lived at
Dumka. There all expenses were borne by Suraj for living at Dumka. In
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para 28 he stated that he has received an information regarding the death
of his son in law through mobile and that information given to him by
Bimal (Nandosi) of his daughter.
33. P.W.-3 is Mistri Kisku, who has stated on oath in his
examination-in-chief that he identified the plaintiff Lakhimunni Marandi
and defendant Baburam Murmu and his wife. The marriage of Lakhimunni
Marandi was solemnized with Suraj Murmu on 13.04.2010. Suraj Murmu
had died. At the time of marriage, he was present there. In the said
marriage 33 different type of articles has been given and a paper was
prepared. He identified the carbon copy of the list of articles which was
prepared on 13.04.2010 at 10:00 P.M. He identified the signature of
pradhan of village – Monglabandh Anand Tudu, Sushil Tudu, Jogmajhi
Sunil Kisku, Mahesh Murmu, Babulal Murmu on the said article list. The
said list was prepared in two copies. The carbon copy of the list was given
to the Kamishan Marandi, the father of the plaintiff and the original copy
was given to the father of bride groom. The carbon copy of the said list is
marked as Exhibit -1.
During cross-examination not a single relevant question
regarding the custody of the child was asked by the learned counsel of the
defendant.
34. P.W.-4 is Sunil Kisku has stated on oath in his examination-in-
chief that he knows Lakhimunni Marandi and defendant Baburam Murmu
and his wife Kafu Tudu, who are the mother-in-law and father-in-law of
Lakhimunni Marandi. The marriage of Lakhimunni Marandi was
solemnized with Suraj Murmu on 13.04.2010. Suraj Murmu had died.
Lakhimunni Marandi has a son, namely, Sunny Murmu from the wedlock
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of her husband. At the time of marriage, the father of Lakhimunni has
given a car, bed, godrej almirah (total 33 articles) and a paper was prepared
and on the said paper, village pradhan Pramanik and 10 – 12 persons put
their respective signatures. He identified the same which is marked as
Exhibit 1/1. According to Santhali custom after the death of father, the son
has a right and the mother is a legal guardian of a minor son. Lakhimunni
Marandi is doing work as a nurse and she earns Rs. 30-35 thousand per
month. She does the job as a nurse in her father clinic. Now she does the
job in a hospital at Dhanbad.
During cross-examination, at para 12 he has stated that he has not seen
any paper regarding the nurse occupation of Lakhimunni Marandi. She is
doing the work without any paper. In para 15 he stated that he never went
to the house of Baburam Murmu. He has further stated that he cannot say
the how much land and how much is the earning of Baburam. In para 17
he admitted that Lakhimunni Marandi is his sister in village relation.
35. D.W. 1 Baburam Murmu has stated in his examination-in-chief
that he belongs to Schedule Tribe by caste and they follow the Hindu
religion and they are governed by Santhal Customary Law. Lakhimunni
Marandi has filed instant suit for appointment of guardian of minor Sunny
Murmu under section 10 of the Guardians and Wards Act, 1890 which is
not maintainable either under the facts or under the law. It is true that the
plaintiff marriage was solemnized with defendant’s son namely Suraj
Murmu of Beliyadanga, Pakur on 13th April, 2010 as per Santhal Custom
and Rites and the plaintiff is the legally married wife of deceased Suraj
Murmu but it is totally false to say that the father of the plaintiff Kamishan
Marandi gave huge articles as per the list mentioned in the schedule and
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spent huge amount at the time of marriage. DW1 has further stated that it
was an ideal marriage so there was no give and take between them as per
custom, the defendants have given 6 Mann of paddy to the father of the
plaintiff as Gonom and the defendants had gone to plaintiff’s house along
with their son Suraj Murmu (now dead) along with Barat at
his own expenses to celebrate the marriage ceremony. It is totally false and
baseless that the father of the plaintiff has gifted costly articles mentioned
in the schedule. He has further stated that it is admitted fact that the
plaintiff was the wife of deceased Suraj Murmu and their marriage was
solemnized on 13.04.2010 as per Santhal Customary Law and after the
marriage the plaintiff came to the house of her husband and led a peaceful
conjugal life for 5 years and due to their wedlock a son was born on
17.08.2013 whose name is Sunny Murmu and after the birth of the son, the
plaintiff began to create trouble to the son of the defendants to settle at
Sasural at Monglabandh, P.S. Pakuria, District Pakur being separate from
his parents which was denied by the defendants’ son Suraj Murmu as a
result of which the plaintiff refused to live at Beliyadanga in the house of
the defendants as a result of which a dispute was cropped up. He and his
son tried to reconcile the matter but in vain and his son went several times
to bring her back but she did not come and she flatly denied saying that
she will not live in Pakur at the house of the defendants. Lastly the plaintiff
and her parents put a proposal before him and his son for divorce.
Accordingly, a Gramin Bhaithak on 2nd of December, 2017 which was
held in the village Beliyadanga and both the plaintiff and his son Suraj
Murmu divorced each other by pouring the water from the leg and by
tearing the sal leaves in the presence of the parents of both husband and
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wife and villagers and defendants of her family did not accept the son
Sunny Murmu as a result of which Sunny began to live with his father
Suraj Murmu who took care of his son under his guidance. Since then, the
plaintiff began to live at Monglabandh, P.S. Pakuria, District Pakur with
her parents having no connection at all with her son Sunny Murmu and her
husband Suraj Murmu. This witness has further stated that Sunny Murmu
used to live with his father Suraj Murmu after the divorce under the care
and guidance of the defendants and suddenly on 13th November, 2018 his
son namely Suraj Murmu died and after the death of Suraj Murmu, his
minor son Sunny Murmu began to live with them and plaintiff neither took
care nor she came to meet her son Sunny Murmu from the date of divorce
to till date and even on the death of her husband the plaintiff did not turn
up. He has further stated that plaintiff neither came to see the face of the
deceased nor came to see her minor son Sunny Murmu from the date of
divorce. His son Suraj Murmu died due to severe cold. On 12.11.2018
Suraj Murmu had gone to Kalidaspur Dungri Tola to meet his MAMA
which is about 8-9 Km from his house and inspite of several forbiddance
he did not stay at the MAMA’s house and rushed from Dungri Tola to
Pakur by motorcycle vide registration no. JH16A/3262. At about 10:00
P.M. He made a call to his son to know where he was but he did not pick
up the phone and just after 10 minutes at 10:10 P.M his son reached his
house and his position was not good as his entire body was shivering from
cold and as soon as he reached, primary home treatments were started and
a doctor was called but he died after about 2 hours, i.e , about
12:20 PM (on 13.11.18) at night before the arrival of the doctor. He has
further stated that the doctor issued a certificate to this effect on
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02.12.2018 and as such the question of post mortem does not arise. The
rest story of plaintiff that the child felt threatened and terrorized and that
on on 04.12.2019 the in laws and their married daughter Lakhmi Murmu
assaulted the plaintiff and drove her out of the house after snatching her
minor son Sunny Murmu is completely false and baseless. Lakshmi
Murmu is married with Vimal Kisku son of Wilson Kisku of Dhanbad,
P.S. Hiranpur, District – Pakur and she lives at her matrimonial home and
off and on she visits her father’s house and as such question of assaulting
and terrorizing on the part of Lakshmi Murmu does not arise. A divorce
has been commenced between his son Suraj Murmu and the plaintiff much
earlier, i.e, on 02.11.2016 and the plaintiff lives with her father at
Monglabandh, P.S. Pakuria, District Pakur so the question of torture and
demand does not arise. The divorce was commenced on 02.11.2016 as per
their custom between the plaintiff and his son Suraj Murmu and since then
the minor Sunny Murmu is living under the care and custody of his father
Suraj Murmu and after the death of Suraj Murmu, Sunny Murmu is living
with him and Sunny Murmu is studying since year 2019 at St. Joseph
School, Piyadapur Pakur, Jharkhand from the Class – LKG and now he is
studying in Class II. He filed the fee receipt of Class-LKG which is marked
as Exhibits- A, A/1, A/2, A/3, A/4. He has further filed the fee receipts of
UKG and it is marked as Exhibits-A/5, A/6, A/7. He further filed the
tuition fee card of Sunny Murmu for the period of 2020-2021 and it is
marked as Exhibit – B. He further filed tuition fee receipt of Class-2B for
the period of 2022-2023 which is marked as Exhibits- A/8, A/9, A/10. He
further filed the Class-2B tuition fee card which is marked as Exhibit-X
for identification. He has further stated that plaintiff is an unemployed lady
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having no source of income and she is fully dependent upon her father and
plaintiff’s father is a simple homeopathic doctor having no sufficient
means to give proper education and maintenance to his daughter’s son
(minor) Sunny Murmu. He has further stated that assertions made in the
plaint regarding working in the clinic with her father in Pakuria and she
being well versed in the female diseases is completely false. So far as
defendants know the plaintiff has no valid license of practicing as a doctor.
The plaintiff used to live at Monglabandh, P.S. Pakuria, District Pakur
which is an interior place having no proper communication and facility of
proper education and if Sunny Murmu lives under the custody of his
mother he will not get proper education and his future will be dark and
during the lifetime of Suraj Murmu, he and the plaintiff were divorced and
the minor child was given under the custody of Suraj Murmu and since
then, Sunny Murmu is living at his house under the care and custody of his
father Suraj Murmu and thereafter under his care and custody. They are
giving proper education to him and maintaining well and plaintiff never
came to the defendants to take over the custody of the child nor filed any
petition before any of the authority or in the Court to take over the minor
in her custody and plaintiff wants to destroy the better life of the minor
Sunny Murmu. He is a ration dealer having sufficient landed property and
means to maintain the minor grandson Sunny Murmu by giving proper
education and a better life. If the child Sunny Murmu given under the
custody of the plaintiff, his life will be dark. He has further stated that the
custody of minor is the pre-existing rights as because the plaintiff is a
divorcee and in these circumstances the plaintiff is disqualified to be
appointed as legal guardian in preference of grandfather as because the
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plaintiff is neglecting the minor Sunny Murmu from the very beginning.
They are maintaining the minor-Sunny Murmu for his welfare and with
utmost love and affection the sustenance and schooling are safe in their
hands and he is the custodian and considering the welfare, sustenance and
wellbeing of the minor which are the paramount considerations. The
plaintiff is not entitled to get any relief as claimed for and the plaint of the
plaintiff is fit to be dismissed with cost.
During cross-examination, at para 23 he has stated that the
divorce of his son with his wife occurred but no paper was prepared at
that time. He is running a PDS shop. In para 28 he stated that his son-in-
law is Bimal Kisku. His daughter’s name is Lakshmi Murmu who is the
wife of Bimal Kisku. Lakshmi Murmu now lives with him and his
daughter has a daughter namely Mailey Kisku aged about 10 years and
she is studying at Sahibganj and the entire expenses was borne by his son
in law. He merely listen that the marriage of Lakhimunni Marandi was
solemnized with Bimal Kisku. In para 31 he stated that he has a 25 Bighas
12 Kattha 08 Dhur landed property at Chirudih Mouza and on that land
he cultivate. In para 34 he has stated that now his grandson is about 09
years and at that time of admission of school his grandson was aged five
years. If Lakhimunni Marandi demanded the child custody but they will
not handover the custody of child. In para 43 he stated that he earns Rs.
15-20 thousand per month from the dealership of PDS shop and he
received commission from the dealership.
36. D.W. 2 is Kapu Tudu defendant no.2 and grandmother of the
minor Sunny Murmu has stated in her examination in chief on affidavit as
stated by DW1 word by word, line by line so there is there no need to
26
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repeat the examination in chief of DW2 Kapu Tudu defendant no.2 and
grandmother of the minor Sunny Murmu.
During cross-examination she stated that her son name was
Surajmuni and his son died about four years ago. Lakhimunni Marandi is
a literate and at the time of death of her son, Lakhimunni Marandi was not
present there. She lived in the house of Matiablaze. Her son was doing the
contractor job and her son giving the money for the study of his wife. Now
the Sunny Murmu is living in her house and they take care from his
childhood. In para 20 she has stated that in her house there is a four-
wheeler and this was gifted by at the time of marriage of Suraj and
Lakhimunni Marandi. In para 22 she has stated that there was no
altercation between his son Suraj and daughter in law Lakhimunni
Marandi. Her daughter in law mostly lived in her maikey. They do not
want to give the custody of Sunny Murmu to Lakhimunni Marandi. In
para 25 she has stated that her daughter’s name is Lakshmi Murmu and
her daughter is living with her. Her daughter has a daughter who is living
with her father, namely, Bimal at Dhanbad. the second marriage of
Lakhimunni Marandi was not solemnized in her presence. She merely has
listened about it. The second marriage of Lakhimunni Marandi was
solemnized with her son in law. In para-29 she has stated that at the life
time of her son the divorce was taken place in between husband and wife
but no paper was prepared because according to Santhali rites and custom
no paper is required. In para 34 she has stated that when her son was alive
then her son was praying for admission of Sunny Murmu in a school. In
para 35 she has stated that there was a talk of compromise at police station
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and the child was asked where he want to live then the child replied that
he want to live with his grandfather.
37. D.W.3 is Wakil Tudu stated in his examination in chief that it is
true that the plaintiff married with defendant’s son, namely, Suraj Murmu
of Beliyadanga, Pakur on 13th April, 2010 as per Santhal Custom and Rites.
It was an ideal marriage so there was no give and take between them. As
per custom the defendants have given 6 Mann of paddy to the father of the
plaintiff as Gonom. The father of the plaintiff has gifted costly articles
mentioned in the schedule is totally false and baseless and the father of the
plaintiff did not give any articles to Suraj Murmu or the defendants at the
time of marriage. He has further stated that after marriage the plaintiff
came to the house of her husband and led a peaceful conjugal life for 5
years and due to their wedlock a son was born on 17.08.2013 whose name
is Sunny Murmu and after the birth of the son, the plaintiff began to create
trouble to the son of the defendants to settle at Sasural at Monglabandh,
P.S. Pakuria, District – Pakur being separate from his parents which was
denied by the defendant’s son Suraj Murmu. As a result, the plaintiff
refused to live at Beliyadanga in the house of the defendants as a result of
which a dispute was cropped up. The defendants and their son tried to
reconcile the matter but in vain and their son went several times to bring
her back but she did not come. Lastly the plaintiff and her parents put a
proposal before the defendant’s and their son for divorce. Thereafter, a
Gramin Baithak was held on 2nd of December, 2017 in the village
Beliyadanga and both the plaintiff and the defendants’ son Suraj Murmu
divorced each other by pouring the water from the leg and by tearing the
sal leaves in the presence of the parents of both husband and wife and
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villagers and defendants of her family did not accept the son Sunny Murmu
as a result of which Sunny began to live with his father Suraj Murmu who
took care of his son under the guidance of the parents. He has further stated
that suddenly on 13th November, 2018 the son of the defendants namely
“Suraj Murmu died and after the death of Suraj Murmu his minor son-
Sunny Murmu began to live with his grandparents (defendants) and
plaintiff never took care nor she came to meet with her son Sunny Murmu
from the date of divorce to till date and even on the death of her husband
the plaintiff did not turn up. Plaintiff neither came to see the face of the
deceased nor came to see her minor son Sunny Murmu from the date of
divorce. He has further stated that Lakhimunni Marandi was married with
Vimal Kisku son of Wilson Kisku of Dhanbad, P.S. Hiranpur, District-
Pakur and she lives at her SASURAL and off and on she visits her father’s
house and as such question of assaulting and terrorizing on the part of
Lakshmi Murmu does not arise. A divorce has been commenced between
the defendants’ son Suraj Murmu and the plaintiff much earlier i.e on
02.11.2016 and the plaintiff lives with her father at Monglabandh, P.S.
Pakuria, District Pakur so the question of torture and demand does not
arise. The minor Sunny Murmu is living under the care and custody of his
father Suraj Murmu and after the death of Suraj Murmu, Sunny Murmu is
living with the defendants and is reading in class U.K.G. at St. Joseph
English Medium School, Pakur. After expiry of three years the plaintiff
filed her child this petition for the custody of her child only with a view to
ruin his life with a malafide intention which is very suspicious. Child
Sunny Murmu want to live with grandfather and grandmother.
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During cross-examination he has stated that in para 13 that he
does not know what is written in the affidavit. He asked to put his signature
on it then he put his signature. He has been brought by Baburam Murmu
for deposition before the Court and he is giving the evidence as stated by
Baburam.
38. D.W. 4 is Sunil Tudu who has reiterated the statement as narrated
by DW3 in his evidence so there is no need to repeat the examination-in-
chief of DW4.
During cross-examination he has stated that in para 17 that he
cannot say the date, month of death of Suraj Murmu but the year was 2018.
In para 21 he stated that Baburam Murmu is living in his village street and
he usually visit his house. Baburam Murmu is a PDS dealer. In para 23 he
has stated that the name of the son of Baburam Murmu is
Suraj Murmu and Suraj Murmu has one son namely Sunny Murmu and
the name of mother of Sunny Murmu is Lakhimunni Marandi who is the
plaintiff of this case. Sunny Murmu is studying in Class-II in St. Joseph
School.
39. This Court on appreciation of the arguments advanced on behalf
of the parties is now proceeding to consider that who will have the better
claim, i.e., the grand-parents or the mother(appellant herein) for the
welfare of the child, but before consideration of the aforesaid issue, this
Court needs to refer herein the statutory provision of Hindu Minority and
Guardianship Act, 1956 which runs as follows:
“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) in30
2025:JHHC:21684-DBthe 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) or 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 right31
2025:JHHC:21684-DBof 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.”
40. 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
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.
41. 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.
42. 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.
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43. 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.
44. 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
to the satisfaction by making out a concrete opinion regarding the issue
of the welfare of the minor.
45. 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.
46. At this juncture it would be apt to referred the relevant provisions
of Guardians and Wards Act,1890, which reads as under:
7. Power of the Court to make order as to guardianship.–(1) Where
the Court is satisfied that is for the welfare of a minor that an order
should be made–
(a) appointing a guardian of his person or property, or both, or
(b) declaring a person to be such a guardian,
the court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian
who has not been appointed by will or other instrument or appointed or
declared by the Court.
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(3) Where a guardian has been appointed by will or other instrument or
appointed or declared by the Court, an order under this section
appointing or declaring another person to be guardian in his stead shall
not be made until the powers of the guardian appointed or declared as
aforesaid have ceased under the provisions of this Act.
17. Matters to be considered by the Court in appointing guardian.–
(1) In appointing or declaring the guardian of a minor, the Court shall,
subject to the provisions of this section, be guided by what, consistently
with the law to which the minor is subject, appears in the circumstances
to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court
shall have regard the age, sex and religion of the minor, the character
and capacity of the proposed guardian and his nearness of kin to the
minor, the wishes, if any, of a deceased parent, and any existing or
previous relations of the proposed guardian with the minor or his
property.
(3) If the minor is old enough to form an intelligent preference, the
Court may consider that preference.
(4) 22[* * *]
(5) The Court shall not appoint or declare any person to be a guardian
against his will.
47. Thus, even from perusal of section 17 of Act 1890 it is evident
that in appointing or declaring the guardian of a minor, the Court under
the provisions of this section, be guided by the welfare of the minor.
48. 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
34
2025:JHHC:21684-DB
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, 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 its physical 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.”
49. 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
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favourable surroundings but over and above physical comforts, the moral
and ethical values have also to be noted.
50. 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.
51. 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.
52. 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 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 wellbeing 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
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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.
53. 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 the child
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.’
54. 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
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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 ultimate
consideration that must guide the determination required to be
made by the court.
55. 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.
56. 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
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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:
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 the court 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)
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“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.”
57. It needs to refer herein that Welfare comprehends optimal growth
and development of personality of child. Welfare of child is the prime
consideration for appointment of guardian. Psycho-social as also physical
development of child for shaping of an independent personality is foremost
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concern of court as parens patriae in deciding grant of custody of child.
Parental Alienation Syndrome, what is, and its relevance in deciding child
custody has been explained by the Hon’ble Apex Court in the case of Vivek
Singh v. Romani Singh, (2017) 3 SCC 231. For ready reference the
relevant paragraph is being quoted as under:
18.——-Psychologists term it as “The Parental Alienation Syndrome”
[ The Parental Alienation Syndrome was originally described by Dr
Richard Gardner in “Recent Developments in Child Custody
Litigation”, The Academy Forum, Vol. 29, No. 2 : The American
Academy of Psychoanalysis, 1985.] . It has at least two psychological
destructive effects:
(i) First, it puts the child squarely in the middle of a contest of loyalty,
a contest which cannot possibly be won. The child is asked to choose
who is the preferred parent. No matter whatever is the choice, the child
is very likely to end up feeling painfully guilty and confused. This is
because in the overwhelming majority of cases, what the child wants
and needs is to continue a relationship with each parent, as independent
as possible from their own conflicts.
(ii) Second, the child is required to make a shift in assessing reality. One
parent is presented as being totally to blame for all problems, and as
someone who is devoid of any positive characteristics. Both of these
assertions represent one parent’s distortions of reality.
58. Thus, from the aforesaid settled position of law it is evident that
the consideration governing the custody of children is the welfare of the
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.
59. 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
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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 section 13 of the Hindu Minority and Guardianship Act,
1956.
60. Admittedly herein the appellant is trained nurse and she is literate
lady. Further appellant has in totally denial of her second marriage and
further no cogent evidence has been brought on record by the defendants
that appellant has solemnized her second marriage. However, it is settled
position of law that the second marriage of either of the parent cannot dis-
entitle him/her to the custody of his/her children but the children are not
compelled to adjust with their stepfather/stepmother till the guardianship
application is disposed of. Reference in this regard be made to the
judgment rendered by the Hon’ble Apex Court in the case of Athar
Hussain v. Syed Siraj Ahmed, (2010) 2 SCC 654.
61. Further it has come on record that the parties are governed by
Santhal Customary law wherein the plaintiff mother is representative of
the deceased husband and has right to take care of her minor son, bring
him up and educate properly. Further it is evident from the appellant’s
father that he is ready to support her daughter (appellant herein) at any
extent.
62. It needs to refer herein that avowedly, the mother is best suited
to care for her offspring, so aptly and comprehensively conveyed in Hindi
by the word “mamta”. Furthermore, recognising her maternity would
obviate the necessity of determining paternity. In situations such as this,
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where the father is of minor is no more and the grands parents are since
old aged persons therefore in such situation the role of mother become
more important from the future point of view of the minor.
63. The aforesaid discussion leads us to feel that continuous
company of the mother with child, is absolutely essential.
64. The Hon’ble Apex Court while drawing the importance of
mother as guardian and best suited person for custody of minor child has
observed in the case of Vivek Singh v. Romani Singh (supra) that it may
also be underlying that the notion that a child’s primary need is for the care
and love of its mother, where she has been its primary care giving parent,
is supported by a vast body of psychological literature. Empirical studies
show that mother-infant “bonding” begins at the child’s birth and that
infants as young as two months old frequently show signs of distress when
the mother is replaced by a substitute caregiver. An infant typically
responds preferentially to the sound of its mother’s voice by four weeks,
actively demands her presence and protests her absence by eight months,
and within the first year has formed a profound and enduring attachment
to her. Psychological theory hypothesizes that the mother is the centre of
an infant’s small world, his psychological homebase, and that she “must
continue to be so for some years to come”. Developmental psychologists
believe that the quality and strength of this original bond largely
determines the child’s later capacity to fulfil her individual potential and
to form attachments to other individuals and to the human community.
65. This Court,therefore, is of the view that the learned Family Court
while determining the issue of custody has completely overlook the
welfare of child by negating the claim of mother (appellants herein) who
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are the biological mother of child and educated and self-dependent lady
therefore, the judgment dated 28.01.2023 and the decree dated 10.02.2023
passed in Original Suit No.02 of 2020 by the learned Family Judge suffers
from an error and needs interference and, accordingly, set aside.
66. The instant appeal is hereby allowed.
67. Pending I.As, if any, stands disposed of.
(Sujit Narayan Prasad, J.)
I Agree.
(Rajesh Kumar, J.)
(Rajesh Kumar, J.)
Sudhir
Dated:01/08/2025
Jharkhand High Court, Ranchi
AFR
44
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