Jharkhand High Court
Munendra Kumar vs Priyanka Kumari on 14 July, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:21382-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 158 of 2023
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Munendra Kumar, aged about 42 years, son of Late Dinanath Pandit,
resident of RZ-36, Ist Floor, Dayal Sar Road, South Extn. Part-3, Uttam
Nagar West, P.O. - D.K. Mohan Garden, P.S. - Bindapur, New Delhi-
110059. ... Appellant/Petitioner
Versus
Priyanka Kumari, aged about 32 wife of Mundendra Kumar, daughter of
Lalan Kumar, resident of Qtrs. No. 191, Block - 22, New Type Near TV
Center, Koyla Nagar, P.O. BCCL Township, P.S. - Sarai Dhella, District -
Dhanbad, Jharkhand - 826005. Presently residing at Qtrs. No. B/4, Bara
Colliery, BCCL, P.O. +P.S. Dhansar, District- Dhanbad.
... Respondent/Respondent
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Mr. Bhaskar Trivedi, Advocate
: Mr. Rahul Dev, Advocate
For the Respondent : Mr. Pratiush Lala, Advocate
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12/Dated: 14th July, 2025
Per Sujit Narayan Prasad, J.:
1. The instant appeal has been filed under Section 19(1) of the Family
Courts Act, 1984 against the judgment and decree dated 21.03.2023
and 31.03.2023, respectively passed by the learned Additional
Principal Judge, Additional Family Court No. II, Dhanbad in Original
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Suit No. 205 of 2018, whereby and whereunder, the prayer for
custody of minor child has been dismissed.
2. The brief facts of the case, as per the pleading made in the plaint is
required to enumerated herein which reads as under:
The petitioner and the respondent were legally wedded
husband and wife whose marriage was solemnized on 22-11-2009 as
per Hindu Rites and customs at Kamlodya Bhawan, Gandhi Nagar,
Dhanbad. After solemnization of the marriage the petitioner took the
respondent with him at Delhi and both of them resided together as
husband and wife at Delhi.
Out of the said wedlock the couple was blessed with a male
child. The petitioner is a permanent employee of HCL Technologies
Ltd. and is working as a Senior Business Analyst. It has been stated
that the respondent has left the matrimonial home by forcibly taking
minor child along with her on 17.06.2016 without knowledge and
information given to the petitioner/appellant and went to her
parental home at Dhanbad.
On 24-06-2016 the respondent has filed a complaint case
against the petitioner and his family members u/s 498A IPC and 3/4
Dowry Prohibition Act. Thereafter, at the time of granting
anticipatory bail to the petitioner by the High Court of Jharkhand,
Ranchi direction was given to the petitioner to give Rs. Two lakhs to
the respondent and the said amount are being adjusting towards the
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2025:JHHC:21382-DBmaintenance for the respondent and minor child. The petitioner has
repeatedly requested to the respondent to allow him to see the minor
son but she did not allow the petitioner to meet and talk to his minor
son.
The respondent has also filed another case u/s 125 Cr.P.C. for
maintenance. After six month a Panchyati was held in Dhanbad on
03-04-2016 and the matter was compromised between both parties.
The respondent came to Noida along with petitioner with the son.
After 15 days, the respondent started to demand the petitioner to go
to her maika. Thereafter, the respondent and petitioner along with
their son had gone to Siwan, Bihar.
It is stated that the minor child is residing with the respondent
at Dhanbad within the local limit and territorial jurisdiction Dhanbad
and the petitioner is residing at Delhi and due to this reason the
petitioner has filed the suit at local limits of Dwarka Court New Delhi
but due to the territorial jurisdiction the learned court Family Judge
Dwarka New Delhi passed an order by returning the suit to petitioner
for presenting before the court having territorial jurisdiction in
Dhanbad.
Thereafter, the learned Family Court, Dhanbad after hearing
the parties and appreciating the evidence available on record as also
the testimonies of the witnesses, has dismissed the original suit filed
by the petitioner for declaring him as guardian of the minor child and
3
2025:JHHC:21382-DBgranted the custody of the minor child to the respondent.
3. It is evident from the factual aspect as referred in the plaint that the
dispute had arisen in between the appellant-husband and the
respondent-wife. An application was filed for the custody of the
minor child .
4. The learned Family Judge, after institution of the case, has issued
notice to the respondent-wife. The respondent-wife had appeared
and filed written statement stating inter alia entire facts and denied
the allegation as alleged by the appellant/husband and prayer was
made to not allow the said application.
5. The learned Family Judge has granted opportunity to the parties to
adduce evidences and the same had been led.
6. The learned Court, based upon the evidences adduced on behalf of
the parties, passed the impugned judgment by denying the claim of
the custody to be handed over in favour of the husband, which is the
subject-matter being challenged in the instant appeal.
Submission of the learned counsel for the Appellant
7. The learned counsel appearing for the appellant has taken the
following grounds in challenging the impugned judgment:
(i) The learned Family Judge has not appreciated the evidence
as has been adduced on behalf of the appellant husband in
right perspective and even though he being the natural
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2025:JHHC:21382-DBguardian, the custody of the minor child has been denied.
(ii) The learned Family Judge has also not appreciated the fact
that he would be able to satisfy to prove himself to be a best
guardian due to his earning, since he is a software engineer
in HCL.
8. The learned counsel, based upon the aforesaid ground, has
submitted that, therefore, the impugned judgment suffers from
error, hence is not sustainable in the eye of law.
Submission of the learned counsel for respondent/wife
9. While on the other hand, learned counsel appearing for the
respondent/wife has taken the following grounds while defending
the impugned judgment:
(i) The learned Family Judge has not committed any error,
since the vital aspect of the matter of the statutory
command have been taken into consideration, which is the
welfare of the minor child.
(ii) The fact has been taken into consideration by the learned
Family Judge that the minor child, since his birth, is living
with his mother and as such, she is the best guardian to
nourish and to look after his welfare.
10. The learned counsel for the respondent, based upon the aforesaid
ground, has submitted that the learned Family Judge has not
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committed any error, hence the present appeal is fit to be dismissed.
Analysis
11. We have heard the learned counsel for the parties and gone through
the material available on record, as also the finding recorded by the
learned Family Judge in the impugned judgment.
12. The question of legality and propriety of the impugned judgment is
the issue of consideration in the present appeal.
13. This Court before considering the aforesaid rival submission and
propriety of the impugned judgment needs to discuss herein the
relevant part of the evidences adduced on behalf of the parties as
also to refer the statutory provision as provided under the Hindu
Minority and Guardianship Act, 1956 and as also the Guardians and
Wards Act, 1890.
14. 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 a6
2025:JHHC:21382-DBminor 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 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.–
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(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.”
15. 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.
16. 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.
17. 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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18. 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.
19. 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.
20. 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.
21. 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
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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.”
22. 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
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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.
23. 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.
24. 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.
25. 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
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“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.
26. 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 be12
2025:JHHC:21382-DBdenied 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.’
27. 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.
28. 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
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rendered by the Hon’ble Apex Court in the case of Gautam Kumar Das v.
State (NCT of Delhi), (2024) 10 SCC 588.
29. In the case of Shazia Aman Khan v. State of Orissa, (2024) 7 SCC 564
the Hon’ble Apex Court while referring the ratio of Nil Ratan Kundu v.
Abhijit Kundu, (2008) 9 SCC 413 has observed that welfare of the
children is to be seen and not the rights of the parties, the relevant
paragraph of the aforesaid judgment is being quoted as under:
19. In Nil Ratan Kundu v. Abhijit Kundu [Nil Ratan Kundu v. Abhijit
Kundu, (2008) 9 SCC 413] , this Court laid down the principles
governing custody of minor children and held that welfare of the
children is to be seen and not the rights of the parties by
observing as under : (SCC pp. 428-29, paras 52 & 55) “Principles
governing custody of minor children
52. In our judgment, the law relating to custody of a child is fairly
well-settled and it is this. In deciding a difficult and complex
question as to the custody of minor, a court of law should keep in
mind relevant statutes and the rights flowing therefrom. But such
cases cannot be decided solely by interpreting legal provisions. It
is a human problem and is required to be solved with human
touch. A court while dealing with custody cases, is neither bound
by statutes nor by strict rules of evidence or procedure nor by
precedents. In selecting proper guardian of a minor, the
paramount consideration should be the welfare and well-being of
the child. In selecting a guardian, the court is exercising parens
patriae jurisdiction and is expected, nay bound, to give due weight
to a child’s ordinary comfort, contentment, health, education,
intellectual development and favourable surroundings. But over
and above physical comforts, moral and ethical values cannot be
ignored. They are equally, or we may say, even more important,
essential and indispensable considerations. If the minor is old
enough to form an intelligent preference or judgment, the court
must consider such preference as well, though the final decision
should rest with the court as to what is conducive to the welfare of
the minor.
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***
55. We are unable to appreciate the approach of the courts below.
This Court in a catena of decisions has held that the controlling
consideration governing the custody of children is the welfare of
children and not the right of their parents.” (emphasis supplied)
21. This Court in Roxann Sharma v. Arun Sharma [Roxann Sharma
v. Arun Sharma, (2015) 8 SCC 318 : (2015) 4 SCC (Civ) 87] , opined
that the child is not a chattel or ball that it is bounced to and fro.
Welfare of the child is the focal point. Relevant lines from para 18
are reproduced hereunder : (SCC p. 328)
“18. … There can be no cavil that when a court is confronted by
conflicting claims of custody there are no rights of the parents
which have to be enforced; the child is not a chattel or a ball that is
bounced to and fro the parents. It is only the child’s welfare which
is the focal point for consideration. Parliament rightly thinks that
the custody of a child less than five years of age should ordinarily
be with the mother and this expectation can be deviated from only
for strong reasons.”
20. This Court has consistently held that welfare of the child is of
paramount consideration and not personal law and statute. In
Ashish Ranjan v. Anupma Tandon [Ashish Ranjan v. Anupma
Tandon, (2010) 14 SCC 274 : (2011) 4 SCC (Civ) 948] , this Court
held as under : (SCC p. 282, para 19)
“19. The statutory provisions dealing with the custody of the child
under any personal law cannot and must not supersede the
paramount consideration as to what is conducive to the welfare of
the minor. In fact, no statute on the subject, can ignore, eschew or
obliterate the vital factor of the welfare of the minor.”
22. Another principle of law which is settled with reference to
custody of the child is the wish of the child, if she is capable of.
Reference Gowda v. State can of be made to Rohith Thammana
Karnataka [Rohith Thammana Gowda v. State of Karnataka, (2022)
20 SCC 550 : 2022 SCC OnLine SC 937] case. It was held as under :
(SCC para 18)
“18. We have stated earlier that the question “what is the
wish/desire of the child‟ can be ascertained through interaction,
but then, the question as to “what would be the best interest of the15
2025:JHHC:21382-DBchild‟ 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.”
30. 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.
31. In the backdrop of the aforesaid settled position of law this Court is now
adverting to the factual aspect of the present case in order to asses as to
the whether the findings so recorded by the learned Family Judge can be
said to suffer from an error by giving go by to the mandate of section of
the Hindu Minority and Guardianship Act, 1956 and further as to
whether while forming an opinion not to hand over the custody of the
minor, the learned Family Judge has committed an error by giving go by
to the provision of sub-section 2 of section 13 of the Hindu Minority and
Guardianship Act, 1956.
32. It is evident from the statutory provision referred herein as also the
judgment passed by Hon’ble Apex Court, the consideration has been
given by laying down the law that even the father is the natural
guardian but the well-being/welfare of the minor child is to be
16
2025:JHHC:21382-DBtaken into consideration as provided under Section 13 of the Act
1956, wherein the welfare of the minor has statutorily been
provided of the paramount consideration.
33. The Hon’ble Apex Court in the judgment referred hereinabove has
also come out with the said view that the paramount consideration
in the matter of guardianship/custody is the welfare of the minor
child.
34. This Court, after having referred the statutory provision as
discussed hereinabove as also the judgment pronounced by the
Hon’ble Apex Court is proceeding to examine the factual aspect so as
to come to the conclusion regarding the issue of the infirmity said to
be caused by the learned Family Judge.
35. It is evident from the testimony of the witnesses, even has been
admitted by the appellant-husband that right from the birth of the
child, he was living with his mother.
36. The learned Court has also taken into consideration that at the time
of birth as has been submitted by the learned counsel for the
appellant-husband that the father was living along with the minor
and thereafter parted away and since the date of parting away, the
minor child is living with the mother. As of now, the age of the minor
is 12 years, meaning thereby, the minor is living with his mother
alone for the last 9 years.
37. The father has claimed that he being the natural guardian is
17
2025:JHHC:21382-DBcompetent enough to keep the custody of the minor on the basis of
his financial viability.
38. The learned counsel appearing for the respondent wife, in response
hereto, has submitted that the maintenance amount which has been
directed to be paid to the wife and the minor child is not been paid
regularly.
39. It has been stated that an amount of approximately 10 Lakh rupees,
which is to be paid to the respondent wife is still payable and
without any reason, the same is not being paid.
40. However, it has been submitted by the learned counsel for the
appellant-husband that the maintenance so far as relates to the
minor child is concerned, is being paid regularly.
41. The question of financial viability cannot be a parameter for
handing over the custody of the minor in favour of either of the
parties. Rather, as has been provided in the statute, as under Section
13 of the Act, 1956 that the welfare of the child is necessary to be
looked into and the Hon’ble Apex Court, while interpreting the issue
of the clash in between the natural guardianship and the welfare of
the child, has been pleased to hold that the welfare of the child is to
be taken into consideration.
42. Predominantly, the issue of natural guardianship of the minor, so far
as the issue of financial viability is concerned, the mother has been
shown to be educated lady and she is keeping the child with her and
18
2025:JHHC:21382-DBit has also come in the evidence that the child is studying the school.
43. We have also found from Ext. A which has been mentioned in the
impugned order, wherein the wish of the child has also been taken
into consideration, having been stated by the child. It has come in
the said Exhibit that the child does not want to go to live with his
father and he wants to live with his mother (respondent herein)
44. This Court, after having discussed the aforesaid fact and adverting
the impugned judgment, has found that the learned Family Judge
has taken into consideration these aspect of the matter and
predominantly has considered the issue of welfare of child in
denying the custody in favour of the father, the said finding since is
based upon the judicial pronouncement of the Hon’ble Apex Court
as also of the statutory command under the 1956 Act, therefore, this
Court is of the view that the impugned judgment cannot be said to
be suffered from an error.
45. Accordingly, the instant appeal being First Appeal No. 158 of 2023
stands dismissed.
46. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.)
Samarth/ A.F.R.
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