Jharkhand High Court
Mukesh Kumar Singh S/O Binay Kumar Singh vs Mrs. Anchal Singh on 17 June, 2025
Bench: Sujit Narayan Prasad, Rajesh Kumar
( 2025:JHHC:15912-DB )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 103 of 2023
Mukesh Kumar Singh S/o Binay Kumar Singh, aged
about 32 years, resident of village-Hatpara, P.O. & P.S.-
Pakur (T), District-Pakur, Jharkhand.
...Plaintiff/Appellant
Versus
Mrs. Anchal Singh, D/o Alok Kumar Singh, W/o Mukesh
Kumar Singh resident of village Golpahari, P.O. & P.S.-
Parsudih, District-East Singhbhum (Jamshedpur)
Jharkhand. ... ... Defendant/Respondent
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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. Mahesh Tewari, Advocate
For the Respondent : Mr. Jitendra Tripathi, Advocate
Mr. Arun Kumar, Advocate
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CAV/Reserved on 10.06.2025 Pronounced on 17/06/2025
Per Sujit Narayan Prasad, J.
Prayer:
1. The instant appeal, under Section 19(1) of the Family Court
Act, 1984, is directed against the order/judgment dated
31.03.2023 and decree dated 10.04.2023, passed by the
learned Principal Judge, Family Court, Pakur in Original
Suit No. 02 of 2021, whereby and whereunder the learned
Principal Judge held the appellant not entitled for a decree
under Section 5 of the Guardians and Wards Act, 1890 and
refused to handover the custody of child Arnav Kumar Singh
to the plaintiff/appellant by dismissing the suit.
Brief facts of the case:
1 F.A. No. 103 of 2023
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2. The brief facts of the case, as per the pleading made in the
instant appeal, needs to be referred herein as under:
3. The appellant was married with the respondent on
25.02.2015 at the residence of respondent in Railway Colony
at Jamshedpur whereafter the parties lived like husband
and wife and through their wedlock a male child was born
on 18.12.2015, namely, Arnav Kumar Singh.
4. It is alleged by the plaintiff-appellant that the respondent
has got illicit relation with one Suraj Mahto of Jamshedpur
which was not known by his family members and after
marriage, respondent’s father used to come to Pakur with
his wife several times. It is further alleged that the
respondent used to talk on Telephone with said Suraj Mahto
and the appellant was under the impression that he may be
one of the relatives.
5. It is further stated that at Pakur the said child Arnav Singh
used to go to school while his parents used to live at Pakur
as spouse. Due to illicit relation, one day the respondent left
the house of plaintiff-appellant and fled away with that Suraj
Mahto and took gold ornaments and several lacs of rupees of
appellant also. When the appellant came to know about the
occurrence, he filed a case U/s 366, 379/34 of IPC which
was registered as Pakur (T) P.S. case No. 107/2019. In this
case respondent, Anchal Singh and the said Suraj Mahto
2 F.A. No. 103 of 2023
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both were arrested and remanded into custody and later on
they were released on bail. At present the appellant came to
know that the respondent is living and leading a conjugal life
as husband and wife with Suraj Mahto.
6. It is further stated that the said child Arnav Singh is aged
about more than 10 years since the date of birth and the
natural guardian of the child is the appellant and he is
entitled to get the custody of child because he was not well
nourished there and the appellant want to get the child
custody and want to make him a good citizen of this country
by giving proper education to him.
7. Accordingly, plaintiff/appellant had preferred Original Suit
for custody of his child being Original Suit No. 02 of 2021.
8. On being noticed, the respondent-wife appeared before the
family court and filed written statement. The defendant-wife
has stated in the written statement that there is no cause of
action for filing the suit and the suit is not maintainable in
its present form. Further the suit is nothing but a dishonest
attempt to disturb the life of respondent to snatch the minor
child from the custody of mother. The respondent has
further submitted that it is true that the father of the
respondent used to come to the house of the petitioner time
to time to visit her daughter but it is totally false to say that
the father of the respondent used to come with Suraj Mahto.
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The said Suraj Mahto never came to the house of the
petitioner either alone or along with respondent’s father and
the petitioner is only blaming to the respondent to get rid of
from the trap of the respondent with a view to save himself
from the case of maintenance filed under Section 498A IPC.
9. It is further submitted by the respondent that there was no
connection with Suraj Mahto from the very beginning till
date and it is true that the respondent is the legally married
wife of the appellant and their marriage was solemnized on
25.02.2015 as per Hindu customs and rights and at the time
of marriage the parents of the petitioner has given a sum of
Rs. 3,00,000/- for the expense of marriage apart from this
her father has also given house-hold things and ornaments
of gold and other articles as well.
10. The respondent has further submitted that after the
marriage the respondent went to the house of the petitioner
and led peaceful conjugal life up-to only 6 months and
thereafter the appellant and his family members began to
torture the respondent mentally and physically and began to
assault her by fist and slap. The petitioner and his other
family members began to demand a sum of Rs. five lac from
her parents as because the appellant and his parents are not
satisfied from the gift given by the parents of the respondent
and on denial made by her showing the inability, the
petitioner and his parents used to assault by fist and slap
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and on 19.04.2019 drove her out from his house and
managed to lodge a false case against respondent by
showing the power of patrakar (journalist) alleging false and
baseless allegations and under his influence the petitioner
manage to institute a Pakur (Town) P.S. Case No. 107/2019
U/s 366, 379/34 of IPC against the respondent and one
Suraj Mahto and later on lodged a PCR Case against the
appellant and his family members in court of Jamshedpur.
11. It is further submitted that earlier she was under the
impression that everything will be settled as such she did
not lodge any case in order to save the prestige of both the
family. The respondent has specifically denied that she has
any connection with said Suraj Mahto or she fled away with
him by taking the ornaments and several lacs of rupees and
the respondent is leading a deserted life with the minor child
who is the only hope of life and the respondent is still the
wife of the appellant and she also wants to live with him but
the appellant wanted to get away from the respondent.
12. The respondent has further asserted that her son Arnav
Kumar Singh is reading in class LKG at East Singhbhoom
and the respondent is regularly working hard for the better
future of his son and further the respondent is the legal and
natural guardian of minor since the year 2019 and the
respondent is taking proper care of her son Arnav Kumar
Singh whereas the appellant never take any care of the
5 F.A. No. 103 of 2023
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respondent or his son. Respondent further stated that the
plaintiff has got no valid cause of action for the suit and the
suit of the plaintiff (appellant herein) be dismissed
outrightly.
13. The learned family court, on the basis of pleading available
on record, framed the issues, and evidence was led on behalf
of parties. The learned family court, based upon
consideration of principle of handing over the minor child to
the father, and the evidence led on behalf of parties,
dismissed the suit, against which, the instant appeal has
been preferred by the plaintiff-appellant.
Submission of learned counsel for the appellant:
14. The learned counsel for the appellant-father has taken the
following ground in assailing the impugned order passed by
the learned family court.
15. It has been submitted that the learned family court has not
taken into consideration the vital aspect of the matter that
the father is the natural guardian and as such the said
observation is nothing but a ridiculous one in view of the
fact that the father is the natural guardian of the child,
therefore, the child at least be in joint custody of both the
parents.
16. Further submission has been made that the respondent-
mother is not in a position to take care of the minor child
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since she is house-wife having no source of income which
the respondent has admitted in her deposition that she is
living in a miserable condition.
17. Further ground has been taken that the respondent has fled
away with another person, namely, Suraj Mahto, who later
on was arrested by the police in case of theft, which shows
the character of respondent as such in that pretext it is quite
impossible for the respondent to take care of the child. But
the learned family court has failed to appreciate the fact that
such act of her mother can create a physiological and mental
effect on the child.
18. In support of his submission, learned counsel for the
appellant-father relying upon the judgment rendered by
Hon‟ble Apex Court in the case of Gautam Kumar Das vs.
NCT of Delhi & Ors [SLP (Cr.) No. 5171 of 2024] has
submitted that appellant being a natural guardian cannot be
made to run from pillar to post to seek the custody of his
own child and the Hon‟ble Apex Court considering these
aspects of the matter directed to hand over the custody of
the minor child forthwith to father.
19. The learned counsel for the appellant based upon the
aforesaid ground has submitted that since there is no
consideration of these facts by learned trial court, as such
the impugned judgment requires interference by this Court.
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Submission of learned counsel for the respondent:
20. Per contra, Mr. Jitendra Tripathi, learned counsel for the
respondent has taken the following ground in defending the
order passed by the learned family court.
21. It has been submitted that the impugned judgment needs no
interference by this Court and the argument which has been
advanced that the father is the natural guardian will not be
applicable herein rather the welfare of the child is required
to be considered which has well been considered by learned
family court.
22. The learned family court has given due consideration of the
fact that the child since birth is with the mother, the
respondent herein and also studying in a good school and as
such, the learned family court taking into consideration the
welfare of the child and also considering the fact that the
child since birth is living with mother, has denied the
custody to be given to the father.
23. Learned counsel for the respondent has specifically denied
the allegation that the respondent has fled away with any
person.
24. The learned family court based upon the aforesaid ground
and on consideration of the aforesaid fact has passed the
impugned judgment which requires no interference by this
court.
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Analysis
25. We have heard learned counsel for the parties and gone
through pleading available on record as also the finding
recorded by learned family court.
26. This Court, before going to examine as to whether the
finding recorded by learned family judge in denying the
custody of the minor child to the father, the appellant
herein, requires interference needs to refer herein the
provision of law as provided under the Hindu Minority and
Guardianship Act, 1956 and as also the Guardians and
Wards Act, 1890.
27. 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 minor9 F.A. No. 103 of 2023
( 2025:JHHC:15912-DB )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 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 be10 F.A. No. 103 of 2023
( 2025:JHHC:15912-DB )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.”
28. 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. Hence, in such situations
mother can act as natural guardian of the minor during the
lifetime of the father, who would be deemed to be „absent‟
reference in this regard may be taken from the judgment
rendered by the Hon‟ble Apex Court in the case of Githa
Hariharan v. Reserve Bank of India, (1999) 2 SCC 228.
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.
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30. The matter to be considered by the Court in appointing
guardian has been made under the provisions of Guardians
and Wards Act, 1890. For ready reference, the relevant
provision of the Act, 1890 is quoted as under:
“4. (1) “minor” means a person who, under the provisions of
the Indian Majority Act, 1875, (9 of 1875) is to be deemed not
to have attained his majority:
(2) “guardian” mean’s a person having the care of the person
of a minor or of his property, or of both is person and property:
7. Power of the Court to make order as to guardianship.–(1)
where the Court is satisfied that it 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. (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 to 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
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intelligent preference, the Court may consider that preference.
1 * * * * * (5) The Court shall not appoint or declare any person
to be a guardian against his will.”
31. 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.
32. 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 Moitra13 F.A. No. 103 of 2023
( 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 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.”
33. 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
14 F.A. No. 103 of 2023
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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 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,
15 F.A. No. 103 of 2023
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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.
37. 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
16 F.A. No. 103 of 2023
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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.’
38. 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 ultimate
consideration that must guide the determination required to be
made by the court.
17 F.A. No. 103 of 2023
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39. 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.
40. 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 selecting18 F.A. No. 103 of 2023
( 2025:JHHC:15912-DB )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)
“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
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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 can be made to Rohith Thammana
Gowda v. State of 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.”
41. 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.
42. In the backdrop of the provisions of law and judicial
pronouncements, in order to assess the welfare of the minor
child, we have gone through the oral evidence adduced by
the parties.
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43. P.W.1, Vinay Shankar Singh, who is the father of the
plaintiff-appellant, has stated in his examination-in-chief
that Mukesh Kr. Singh-appellant is his son who solemnized
marriage with Anchal Singh in the year 2015 at
Jamshedpur. From their conjugal life one son namely Arnav
Kumar born. After the birth of the child they took Anchal
Singh to their house at Pakur. Arnav Kumar, the minor
child, started studying at the vicinity (Mohalla) school.
Thereafter Anchal Singh took her articles, ornaments and
fled with a boy Suraj Mahto a resident of Jamshedpur and
she also took Arnav Kumar with her. During cross-
examination he stated that his son is doing the journalism.
44. P.W.-2 Mukesh Kumar Singh, who is the plaintiff-appellant,
has stated in his examination-in-chief that his marriage was
solemnized with Anchal Singh in the year 2015 at
Jamshedpur. After marriage Anchal came at her
matrimonial house. From their conjugal life a son namely
Arnav Singh born on 18.12.2015 at Jamshedpur. Anchal
Singh lived with him for about 4 years and 3 months.
Thereafter she fled with other boy namely Suraj Mahto and
at the time of fleeing she took all her ornaments and articles.
His son Arnav Singh was living with his mother. During
cross-examination he admitted that now he is unemployed
and he is a farmer and he has ancestral property. He lodged
a case in the year 2019 regarding eloping of his wife and he
21 F.A. No. 103 of 2023
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filed the instant suit for guardianship in the year 2021. In
para-12 & 13 he further stated that he has not written in his
plaint that his wife has illegal relationship with Suraj Mahto
and also not written that Suraj Mahto visited his house
occasionally with his father in law.
45. P.W.-3, Munni Devi is the mother of the plaintiff-appellant,
who has stated in her examination-in-chief that Mukesh Kr.
Singh is her son and marriage of her son was solemnized
with Anchal Singh on 25.02.2015 at Jamshedpur. From
their conjugal life one son namely Arnav Kumar was born
and now aged about 7 years and presently in custody of
defendant. Thereafter Anchal Singh took her articles,
ornaments and fled with a boy Suraj Mahto and she also
took Arnav Kumar with her. She is leading conjugal life with
her new husband. Her son want to divorce with his wife and
also wants to take custody of the son as her son is the
natural guardian of the Arnab Singh.
46. On behalf of respondent, the respondent-wife herself has
been examined as D.W. 1 who has stated in her examination
in chief that she has admitted that her marriage was
solemnized with Mukesh Kumar Singh on 25.02.2015
according to Hindu rites and rituals at Jamshedpur. After
marriage she lived in her matrimonial house about one year
quite well. In the meantime she gave birth to her son Arnab
Kr. Singh. After birth of her son, her husband, father in law,
22 F.A. No. 103 of 2023
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mother in law and Dewar subjected her to torture and
demanded Rs. 5 lakh from her father. When she was unable
to pay Rs. 5 lakh then her husband, dewar, father-in-law
and mother-in-law subjected her to cruelty and torture by
physically and mentally and lastly on 19.04.2019 they
assaulted her and snatched all the ornaments and ousted
from their house. Only for saving their skin, they filed the
instant suit on the basis of false allegations made against
her. She has further deposed that she wants to lead conjugal
life with her husband and on that account she does not
lodge any case against her in laws and husband. In the year
2022 when she felt that her husband was not in favour of
compromise and wants to divorce her so that he can
solemnize second marriage then she filed a complaint case
on 14.06.2022 before the court of learned CJM, Jamshedpur
being case no. 3563/2022. Her husband is a journalist and
he has a good relation with police and administration but he
was always in financial crunch and crisis and for that
reason her husband made altercation with her daily at the
house and he always tortured her for sake of the dowry.
47. She has specifically deposed that does not know Suraj
Mahto and her family members. All the allegation made by
her husband are false, concocted and without any basis. She
is now living in her father’s house in very miserable
condition with her son Arnav Kumar. Her husband wants to
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leave her so he filed the instant suit on the basis of false
allegation. Her father is senior technician at railway
department and her father withdraw salary of Rs. 43,500/-
per month. Her son is studying at East Point High School
English Medium at Jamshedpur and her son studies in UKG
Class. She is the natural and lawful guardian of her. During
cross-examination she stated that on 19.04.2019. She did
not flee with her child with the ornaments from the house
but her in-laws drove her out from the house after
assaulting her. Her husband has lodged a case against her
regarding elopement. She wants to live with Mukesh Singh
as husband and wife. It is further submitted that earlier she
was under the impression that everything will settled so she
did not lodge any case with a view the save the prestige of
both the family. It is further submitted that the respondent
has got no connection with Suraj Mahto nor she fled away
with him by taking the ornaments and several lac of rupees.
48. As per the evidence led by the parties, it is evident that the
minor child is living with the respondent-mother since birth
and studying in a good school and to that effect evidence has
been led. The child is now more than 9 years old and at the
time of institution of case he was 5 years old. Further, the
fact about the minor child living with the mother is not in
dispute.
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49. The claim of the father that he is the natural guardian and
as such the custody of the minor child ought to have been
handed over in his favour has been discarded by the learned
family court on the ground that the minor child since his
birth is living with his mother, who is living in her parental
house.
50. Further, Section 13 of the Hindu Minority and Guardianship
Act, 1956 is very specific wherein the welfare of the minor
has been considered to be of paramount bearing, meaning
thereby, if the dispute is in between the guardian, even then
the father is the natural guardian then the welfare of the
children is required to be considered.
51. The law has been propounded by Hon‟ble Apex Court, as
taken note of above, that the welfare of the child is
paramount consideration while handing over the custody of
the minor and herein the fact is admitted that the minor
child is studying under the custody of the mother, who is
living in her parental house in the district of pakur, hence
there is no issue of determent to the child.
52. 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.
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53. Therefore, in the backdrop of above facts and statute, this
Court is to examine whether in the hands of appellant-father
the welfare of the child is better than that of respondent-
mother.
54. So far income of the appellant-father is concerned, he in
cross-examination has deposed that now he is unemployed.
The father of the appellant, who has been examined as P.W.
1 has deposed that his son [appellant] is doing journalism
and he cannot say how much money he earns. D.W. 1-the
respondent-wife has stated that her father is senior
technician in railway and is taking care of upbringing the
child.
55. So far fleeing away of the respondent from her matrimonial
house is concerned, it has been deposed by P.W. 3, the
mother-in-law of the respondent, that when the respondent-
Anchal Singh fled away from the house, she and her
husband was not in the house.
56. So far, the allegation of eloping with another person, namely,
Suraj Mahto is concerned, though allegation has been made
by the appellant-husband but it has specifically been denied
by the respondent-wife and she has deposed that she is
living with her parents.
57. Further, admittedly herein, the minor child Arnav Kumar
Singh is studying in a good school at Jamshedpur and the
26 F.A. No. 103 of 2023
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appellant-father did not bear a penny on the study or
upbringing of the child.
58. Therefore, it is evident that the welfare of the child is well
being taken care of by the mother as such it will not be
proper to hand over the custody of the minor child to the
father, who has never been with the minor child which is the
admitted case since the husband and wife are living
separately in two different districts i.e., the husband is living
in Jamshedpur while the wife is living in Pakur.
59. Having considered all the evidences on the record which
cumulatively show that minor child, in this very young age
would not be comfortable in the guardianship of
appelant/father in absence of her mother’s company and as
welfare of minor is supreme consideration where very factor
of financial consideration of father better than mother would
be of no consequence, this court is led to irresistible
conclusion that plaintiff’s prayer for grant of guardianship of
minor child in his favour without and against his mother
does not deserve to be allowed.
60. Furthermore, the case law cited by learned counsel for the
appellant Gautam Kumar Das vs. NCT of Delhi & Ors
(supra) is no help to the appellant in view of the fact that
facts of that is case is totally different to that of present one.
In that case, when the child was 10 days, the mother died
27 F.A. No. 103 of 2023
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due to Covid-19 infection and the child was with the sister-
in-law [respondent no. 5 therein], custody of which was
prayed by the father the Hon‟ble Court held that the father
being the natural guardian, for welfare of the child the
custody of the child was given to him. But herein the facts
are totally different, as discussed above.
61. This Court after discussing the aforesaid factual aspect
along with the legal position and adverting to the
consideration made by the learned Family Judge in the
impugned judgment has found therefrom that the issue of
giving custody of minor son has well been considered along
with the evidence as well as from the pleadings made in the
plaint and the written statement. The learned Family Judge
on consideration of the evidence, has come to the conclusion
that the minor son would not be comfortable in the
guardianship of the appellant herein and the aforesaid
reason has led the learned Family Judge to dismiss the suit.
62. This Court is conscious with the settled proposition of law as
has been settled by the Hon’ble Apex Court in the case
of Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes
Mazdoor Sabha, (1980) 2 SCC 593 that “an appellate
power interferes not when the order appealed is not right but
only when it is clearly wrong decision”.
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63. This Court, on consideration of the finding arrived at by the
learned Family Judge and based upon the aforesaid
discussion and judicial pronouncements, is of the view that
the judgment and decree passed by the learned Family
Judge is not coming under the fold of the perversity, since,
the conscious consideration has been made of the evidences,
as would be evident from the impugned judgment.
64. This Court, therefore, is of the view that the judgment dated
31.03.2023 and the decree dated 10.04.2023 passed in
Original Suit No. 02 of 2021 by the learned Family Judge
Pakur, need no interference.
65. Accordingly, the instant appeal stands dismissed.
66. Pending interlocutory application(s), if any, also stands
disposed of.
I agree (Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.) (Rajesh Kumar, J.)
Alankar/ A.F.R.
29 F.A. No. 103 of 2023