Khilendra Sahu Vs Smt. Purnima Sahu

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2025:CGHC:55502-DB

Digitally signed by AMIT PATEL Date: 2025.11.14 14:36:07 +0530

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04.09.2025	14.11.2025	--	14.11.2025

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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FA(MAT) No. 96 of 2023

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Khilendra Sahu S/o Shri Heeraram Sahu, Aged About 30 Years, R/o Rajim, Fingeshwar Raod, Police Station & Tahsil - Rajim, District Gariyaband (Chhattisgarh)

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... Appellant

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versus

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Smt. Purnima Sahu W/o Khilendra Sahu, Aged About 28 Years, R/o Village - Torla, Police Station - Gobra Nawapara, Tahsil - Abhanpur, District - Raipur (Chhattisgarh)

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... Respondent

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For Appellant : Mr. D.N. Prajapati, Advocate. For Respondent : Ms. Khushbu Sahu, Advocate.

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Hon'ble Smt. Justice Rajani Dubey, J. Hon’ble Shri Justice Amitendra Kishore Prasad, J. C.A.V. Judgment

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Per Rajani Dubey , J.

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This appeal is filed by the appellant against the impugned judgment dated 10.02.2023 passed by learned Second Additional Principal Judge, Family Court, Raipur (C.G.) in C.M.C. No. 176/2018, whereby the learned Family Court has dismissed the application under Section 7 of Guardian and Wards Act, 1890 read with Section 6 (a) of Hindu Minority and Guardianship Act, 1956 for custody of ward Master Praveen Sahu.

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Brief facts of the case are that the marriage of the appellant was solemnized

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with the respondent on 06.05.2009 and out of their wedlock, their son Praveen Sahu was born on 02.03.2010, the appellant and respondent are living separately since long. The learned Judicial Magistrate First Class- Gariyaband, passed an order for grant of maintenance Rs. 2,000/- per month in favour of the respondent. Thereafter, the respondent had filed an application under Section 24 of Hindu Marriage Act for enhancing the maintenance amount and the same was allowed by learned Additional Sessions Judge, Gariyaband in Civil Suit No. 04-A/2016 by enhancing maintenance amount Rs. 2,000 to Rs. 2,500/- per month. The appellant is living at Rajim where the Tahsil Office, S.D.O. office and Court of Judicial Magistrate First Class are also situated at Rajim. The parents of appellant are also living with the appellant, therefore, the minor son Praveen Sahu can also avail the love of his grandmother and grandfather. Earlier, the appellant had filed an application under Section 26 of Hindu Marriage Act, 1955 before the learned Additional District Judge, Gariyaband for custody of minor child which was rejected vide order dated 21.11.2017, against which, an appeal was filed before this Court bearing FA No. 32/2018 and the same was decided by order dated 18.04.2018, whereby the liberty was granted in favour of appellant to file application before the competent Court having jurisdiction, hence, the appellant has filed application for custody of minor child Praveen Sahu.

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Respondent Smt. Purnima Sahu has filed her reply wherein stated that she lives in her maternal home in village Torla, which is a very populated area and is situated at Raipur, Arang Gobra Navapara main road and nearby is Mandrol English Public School, where minor Praveen is studying in class-III^rd and in village- Toral all the facilities are available for his minor son Praveen regarding his development. It is also alleged that the appellant is a drunkard and quarrelsome person and he often remains outside from the home. If her son Praveen is under the custody of the appellant, it will have a bad influence on him and his future and the appellant was having illicit relation with another

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lady, whom he wanted to marry, due to which, respondent was subjected to persecution by the appellant on the name of dowry and as such, he thrown her as well as his minor son out from the house and married with another lady and kept her with him in his house. It has also been alleged that since the age of one year, her minor son Praveen has been living with his maternal uncle (mama) and maternal aunt (mami) and with their sons in Village- Torla and all of them together are providing good education as well as manners and they are not allowing any kind of deficiency in the upbringing of minor son Praveen, however, her minor son does not want to reside with the appellant. The appellant subjected her to persecution and filed an application for divorce as he has married with one another lady and both are living together, in such a situation, giving minor son Praveen under the custody of the appellant may pose a threat to his life, his morals, his upbringing as well as his education too, thus the application filed by the appellant may be dismissed.

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Learned Family Court after appreciation of oral and documentary evidence of both the parties, dismissed the aforesaid application filed by the appellant for custody of minor child Praveen by holding that it is best for the child to live with his respondent/mother, as the she is providing better education to the minor child Praveen Sahu, looking after his well being and raising her in good environment. Hence, this appeal.

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Learned counsel for the appellant submits that the impugned judgment dated 10.02.2023 is perverse, illegal, erroneous and contrary to the facts and circumstances of the case as well as to the evidence available on record, therefore, it is liable to be quashed. The learned Family Court has committed serious illegality in dismissing the application under Section 7 of Guardians & Wards Act, 1890 filed by the appellant. Learned Family Court has failed to appreciate that the appellant has not performed second marriage with any other lady and there are other family members in the family of appellant who are efficient enough to give proper care and facilities to the minor child Praveen

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Sahu, therefore, the custody of minor child Praveen may be provided to the appellant. Learned Family Court has failed to appreciate that the appellant is living at Rajim he is in position to provide the minor not only with all such comforts as were necessary for his proper and complete upbringing, but also with a good education and to create his interest in any extra-curricular activities. It is further contended that learned Family Court has failed to appreciate that the respondent has no source of income, no individual property as such, whereas the appellant has the permanent source of income. The respondent is dependent upon her brother and sister-in-law, as her parents have reached heavenly abode, therefore, the appellant is in a better position to get the custody of child. It is further contended that while passing the impugned judgment, the learned Family Court ought to have considered the paramount welfare of the minor child and the paramount welfare can be achieved by the minor child when his custody will be given in favour of the appellant. So, the impugned judgment is liable to be set aside. In support of his contention, he relied upon the decision of the Hon’ble Apex Court in the matters of Tejaswini Gaud vs. Shekhar Jagdish Prasad Tewari ,¹ and Sheila

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B. Das vs. P.R. Sugasree2

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Learned counsel for the respondent has supported the impugned judgment and submits that the learned Family Court has minutely appreciated the oral and documentary evidence on record and rightly dismissed the application of the appellant for custody of minor child Praveen Sahu. As such, the findings recorded by the learned Family Court are well merited, this Court does not find any infirmity and illegality warranting interference.

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We have heard both the counsel for the parties and perused the material available on record with utmost circumspection.

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It is not disputed in this case that the marriage of the appellant/husband and the respondent/wife was solemnized on 06.05.2009 and out of their wedlock,

1 AIR 2019 SC 2318

2 AIR 2006 SC 1343

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son Praveen was born on 02.03.2010. It is also not disputed that appellant/husband and the respondent/wife are living separately and minor Praveen is living with his mother (respondent).

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Appellant has filed an application under Section 7 of Guardian and Wards Act, 1890 read with Section 6 (a) of Hindu Adoption and Guardianship Act, 1956 for custody of Master Praveen Sahu. Learned Family Court after appreciating the oral and documentary evidence, dismissed the application of the appellant.

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Appellant- Khilendra Sahu (PW-1) has examined himself before learned Family Court and admits in para 13 “ यहसहीहै��म��वयं�ेपासआय�ा�ोई साधननहोनाउ�ेख �रभरणपोषण�े�व��पुनरी�ण �तुत��याहूँ I. In para 14, he also admits that the respondent/wife is studying his minor son in English Medium School. However, in para 14, he denied this fact that he often remains under the influence of liquor. Further, admitted this fact that he is doing work with his father and lives with his father, except this he has no source of income.

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Respondent- Purnima Sahu (DW-1) has stated that she filed documents with regard to her son’s education. Fee receipt of Mandlor Public School is Ex. D/8, school certificate is Ex. D/9 and report card of child is Ex. D/1. In her cross-examination, she admitted this fact that the appellant/husband had filed a divorce petition and she is receiving maintenance amount from the appellant and she further admitted this fact that she has no any agricultural land as given by her parents, though denied the suggestion of appellant that she has no source of income.

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We have interacted with both the parties for mediation along with the minor child Praveen Sahu on 22.01.2025 and passing the following order, which reads as under:-

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“ In the consideration proceedings, the child- Praveen Sahu has shown his willingness to maintain balanced relationship with father and mother, accordingly, he has requested the Bench to do the needful for the betterment of his future.

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Accordingly, he has also informed this Court that he is a student of Class-9^th and his examinations will commence in the month of February or March, 2025. The appellant/father has also shown willingness to consider the request as made by the child and the mother has also no objection in this regard.

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Looking to the conclusion after deliberation on the issues, the following consensus decision has been taken, for the betterment of their child.

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Considering the request made by child- Praveen Sahu and also willingness shown by the parents, this Court pass the following order:-

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(i) Since the distance between the residence of appellant and respondent is not far away, merely, 15 to 20 Kms and the school, where the child is studying is 5 Kms away from the house of the father (Khilendra Sahu). Considering this aspect of the matter, it is directed that the child (Praveen Sahu) will remain with his mother from Monday, till Saturday morning, thereafter, he will attend the school on Saturday and from there, father (Khilendra Sahu) will collect the child and child will also remain there till Monday morning.

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It is directed to the father (Khilendra Sahu) that he will also provide tuition to the child- Praveen Sahu on Saturday and Sunday, which shall be at least of 2 or 3 hours in a day, so that the study of the child will not be hampered adversely because of his staying at the house of his father (Khilendra Sahu).

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It is further directed to the appellant/father that he will provide all the facilities/amenities to the child- Praveen Sahu, irrespective of the fact that he has already two children and he will not discriminate amongst them.

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It is also directed to the respondent/mother that she will not create any hindrance in moving her child- Praveen

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Sahu from her house to appellant/father’s house for the intervening period mentioned above.”

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Hon’ble Apex Court in the matter of Shazia Aman Khan (supra) held in paras

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12, 13, 14, 15 and 16 which reads as thus:-

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“12. This Court in Mausami Moitra Ganguli v. Jayant Ganguli reported in (2008) 8 SCR 260: (2008) 7 SCC 673 opined that the stability and security of the child is an essential ingredient for full development of child’s talent and personality. Relevant paragraph thereof is extracted below:

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“23. Having bestowed our anxious consideration to the material on record and the observations made by the courts below, we are of the view that in the present case there is no ground to upset the judgment and order of the High Court. There is nothing on record to suggest that the welfare of the child is in any way in peril in the hands of the father. In our opinion, the stability and security of the child is also an essential ingredient for a full development of child's talent and personality. As noted above, the appellant is a teacher, now employed in a school at Panipat, where she had shifted from Chandigarh some time back. Earlier she was teaching in some school at Calcutta. Admittedly, she is living all alone. Except for a very short duration when he was with the appellant, Master Satyajeet has been living and studying in Allahabad in a good school and stated to have his small group of friends there. At Panipat, it would be an entirely new environment for him as compared to Allahabad.

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In Nil Ratan Kundu and another v. Abhijit Kundu reported in (2008) 11 SCR 1111: (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:

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“Principles governing custody of minor children

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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 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 humane 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,

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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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We are unable to appreciate the approach of the Courts below. This Court in 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.”

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This Court has consistently held that welfare of the child is of paramount consideration and not personal law and statute. In Ashish Ranjan v. Anupam Tandon and another reported in (2010) 14 SCR

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961 : (2010) 14 SCC 274, this Court held as under:

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“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.

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This Court in Roxann Sharma v. Arun Sharma reported in (2015) 2 SCR 572 : (2015) 8 SCC 318 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-No. 18 are reproduced hereunder:

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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.”

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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 and others’ case

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(supra) . It was held as under:

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“13. 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.”

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In the light of above cited judgments and looking to the facts and circumstances of the case, it is evident that minor child Praveen has shown his willingness to maintain balanced relationship with father and mother and as per his willingness, we have passed the order on 22.01.2025 for betterment of his future. It is also quite evident that minor child Praveen is aged about 13-16 years old and we deem it proper for betterment of minor child Praveen Sahu order dated 22.01.2025 shall be complied. So, we are disposing this appeal with the following order :-

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“ Considering the request made by child- Praveen Sahu and also willingness shown by the parents, this Court pass the following order:-

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(i) Since the distance between the residence of

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appellant and respondent is not far away, merely, 15 to 20 Kms and the school, where the child is studying is 5 Kms away from the house of the father (Khilendra Sahu). Considering this aspect of the matter, it is directed that the child (Praveen Sahu) will remain with his mother from Monday, till Saturday morning, thereafter, he will attend the school on Saturday and from there, father (Khilendra Sahu) will collect the child and child will also remain there till Monday morning.

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It is directed to the father (Khilendra Sahu) that he will also provide tuition to the child- Praveen Sahu on Saturday and Sunday, which shall be at least of 2 or 3 hours in a day, so that

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the study of the child will not be hampered adversely because of his staying at the house of his father (Khilendra Sahu).

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It is further directed to the appellant/father that he will provide all the facilities/amenities to the child- Praveen Sahu, irrespective of the fact that he has already two children and he will not discriminate amongst them.

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It is also directed to the respondent/mother that she will not create any hindrance in moving her child- Praveen Sahu from her house to appellant/father’s house for the intervening period mentioned above.

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It is also directed that during the holidays/vacation covering more than 2 weeks, minor child will be allowed to be in the company of father for long visitation of 5-10 days. The period shall be fixed by the appellant/father and the same shall be intimated to the respondent/mother beforehand so that he can permit the minor child to meet his father and shall not be able to create any hindrance amongst them.

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It is also directed that during festivals the father may join the company of the child at the place of the maternal uncle or any independent venue which must be adaptable to his son and spend the festival holidays with the child for a day.”

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Let a decree be drawn up accordingly.

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No order as to cost.

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Sd/Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) JUDGE JUDGE

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AMIT PATEL

Khilendra Sahu v. Smt. Purnima Sahu

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Khilendra Sahu v. Smt. Purnima Sahu

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