Allowed

Rameshwar Soni v. Arun Soni

Jharkhand HC6 Apr 2022FA/30/2017

Case brief

AI extract

What is this about?

The High Court allowed the appeal by the appellant father against the lower court order awarding custody to the father. The appellate bench found the lower court order perverse, citing the respondent's admission of mental illness, lack of income, and reliance on the allowance argument over the child's welfare.

What did the court decide?

Judgment dated 6th December 2016 and decree dated 20th December 2016 in Original Suit No. 03 of 2016 set-aside; suit dismissed.

Rameshwar Soni Vs Arun Soni — Child Custody and Guardianship | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Appellate Jurisdiction)

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F A No. 30 of 2017

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------

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Rameshwar Soni, son of late Guni Soni, resident of village Hatiatoli, Palkot PO & PS Palkot, District Gumla ….. ...... Appellant/Opposite Party

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Versus

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Arun Soni, son of Suresh Soni, resident of Raurkella, Basanti Colony, House No. D.L. 159, PO & PS Udit Nagar, District Sundargarh (Orissa)

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…. …...Respondent/Petitioner

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(Heard on 5^th April 2022 in the Court & 6^th April 2022 through V.C.)

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CORAM : HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR

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HON’BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellant : Mrs. Rashmi Kumar, Advocate For the Respondent : Mr. Abhay Shankar Dayal, Advocate

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O R D E R^th April 2022

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Per, Shree Chandrashekhar, J.

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Rameshwar Soni who is the appellant and maternal grandfather of the minor Arush Soni is in appeal under section 19(1) of the Family Courts Act, 1984 against the judgment dated 6^th December 2016 passed in Original Suit No. 03 of 2016.

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By the said judgment, Original Suit No. 03 of 2016 was decreed and Rameshwar Soni was directed to hand over the custody of Arush Soni to his father within four weeks. The Principal Judge, Family Court, Gumla has however granted visitation rights to the maternal grandfather once in a week preferably on Sundays.

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By an order dated 19^th July 2017 the operation of the judgment passed in Original Suit No. 03 of 2016 was stayed by this Court.

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The father of Arush Soni (hereinafter referred to as respondent) instituted the suit seeking an order of the Court declaring him as guardian of his son with a further direction to Rameshwar Soni to hand over the custody of Arush Soni to him. In the year 2010, Arun Soni was married with Suman Soni who is the eldest daughter of Rameshwar Soni and from the wedlock Arush Soni was born on 6^th September 2011. The minor child was aged about 5 years at the time when Original Suit No. 03 of 2016 was filed under section 7 read with section 10 of the Guardians and Wards Act, 1890. Suman

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Soni died of kidney ailment on 3^rd December 2014 at her parents' place and since then Arush Soni was living with his maternal grandparents.

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In Original Suit No. 03 of 2016, the respondent pleaded that since his son has attained the age of four years for the purpose of better upbringing and providing proper education to him he desired that custody of his son should be handed over to him but since his father-in-law refused to send his son to his home he was constrained to file Original Suit No. 03 of 2016. The respondent took a stand that after the death of his wife, Arush Soni remained with his maternal grandparents with his consent as he thought that after loss of his mother his son should not have been brought back home suddenly. In his written statement, Rameshwar Soni took a specific stand that his son-in-law is unemployed, he was addicted to psychotropic substances and he sold properties to satisfy his needs for addiction of psychotropic substance. It was specifically averred by Rameshwar Soni that his son-in-law was addicted to ganja, bhang etc. due to which he suffered mental illness for which he was admitted in 'Prasant Medical' at Rourkela for about ten days between 15^th September 2012 to 25^th September 2012. He further set up a plea that during illness of his daughter his son-in-law did not take care of her and sent her to his place (maika) and all along he did not take care of his son also.

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From the proceedings in Original Suit No. 3 of 2016, it appears that during pendency of the suit before him the Family Court Judge examined Arush Soni and formed an opinion that he was not capable of forming an intelligent preference regarding his custody. During the trial both parties came to the witness box and tendered evidence in support of their respective case. The appellant examined three witnesses and to oppose his prayer for custody of his son the respondent also examined three witnesses.

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Ganesh Soni who is the brother-in-law of Arun Soni tendered evidence in the Court as AW1 in respect of marriage of Arun Soni with his sister and birth of Arush Soni. He deposed in the Court that before his marriage Arun Soni had separate business at Kumar Munda in District Sundargarh, Orissa where he resided with his wife after the marriage. He came back to Rourkela after his wife became ill as it was not possible for him to take care of his wife. He further stated that due to sudden illness and death

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of his wife Arun Soni became mentally disturbed. AW2 Punam Devi is the mother of Arun Soni who also stated about her son closing his business on account of illness of his wife. She further deposed that her son would often visit his minor child at 'Palkot' where at the request of his maternal grandfather Arush Soni was left for sometime. In her cross-examination, AW2 denied that her son ever became mentally sick and stated that after the death of his wife her son became mentally disturbed for sometime and started working in the shop “ Roop Singar ” along with his brothers and father. She has also denied suggestion by the defence that after her daughter-in-law became ill his son sent her to her parents' place. The respondent came to the witness box and tendered evidence as AW3 as regards his marriage, birth of his son and kidney ailment of his wife. He further stated that on account of his involvement in the treatment of his wife his business was affected which he was finally constrained to close. After the death of his wife he permitted his son to stay for sometime with his maternal grandparents and aunts as he was of very young age at that time. He further deposed that he was visiting his son at Palkot and also admitted that his son was studying in an English Medium School at Palkot. In the cross-examination, AW3 denied the suggestion that he ever deserted his wife and minor child after his wife became ill.

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OPW1 is a co-villager of the opposite party (appellant herein) who deposed in the Court that the appellant gave Rs. 1,00,000/- to his son-inlaw for purchase of land at Kumar Munda but the said land was sold by Arun Soni to satisfy his addiction of psychotropic substance. He further stated that after Arun Soni came to know about kidney ailment of his wife he left her and his son at Palkot and never turned up to take care of them. On the other hand, the appellant took his daughter to several places for her treatment; Arush Soni is studying in one of the best schools at Palkot whereas the petitioner has no independent source of income to take care of his minor son. In the cross-examination, OPW1 admitted that he had no occasion to see Arun Soni taking ganja and he had not seen any document as regards purchase of land at Kumar Munda. He further admitted that the wife of the appellant has died and his two unmarried daughters were living with him. As OPW2, Rameshwar Soni deposed in the Court that on account of his

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addiction to psychotropic substance Arun Soni was ousted from the family and he started living separately at Kumar Munda. He further stated that after his daughter became ill his son-in-law left her and the minor child at his place (maika) and never came back to inquire about her health till she died. He took a position in the Court that after the death of his daughter his family has taken care of Arush Soni who is studying in one of the best schools at Palkot and he has sufficient and adequate means for proper upbringing of minor child. In the cross-examination, OPW2 admitted that his two daughters are unmarried and he did not ever arrange any intoxicant for his son-in-law who even after death of his wife came to his house on few occasions. He further stated that the elder brother of Arun Soni came to him and offered Rs.1,00,000/- for taking away Arush Soni with him but he denied the same. OPW3 Mahendra Bhagat is the doctor who treated Arun Soni in the month of October 2012. He has proved the medical certificate issued by him which was marked as Exhibit-A.

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The Family Court Judge examined (i) economic condition of the parties (ii) mental status and allegations of addiction of the respondent (iii) neglect of his wife and son by the respondent and (iv) social, moral and educational requirements for all round development of the child, and took note of the judgment in “ Anjali Kapoor v. Rajiv Baijal” (2009) 7 SCC 322 to hold that a child's welfare cannot be measured in terms of money. As regards mental illness and addiction of the respondent, the Family Court Judge held that no cogent evidence was brought on record in this regard to disentitle the respondent from seeking custody of his minor son. The learned Judge further held that the allegations made against the respondent about neglect of his wife and son are not supported and proved by any corroborative evidence. Finally, the learned Judge came to a conclusion that the respondent is more fit and competent to take care of his son than the opposite party.

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In paragraph No. 25 of the judgment in Original Suit No. 03 of 2016, the Family Court Judge has held as under:

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“25. The child is studying at Palkot in the best available school at Palkot. Here comes the question of availability, as certainly availability of good schools is a big problem now a days specially at small places. After the kindergarten period is over there will be a need of good school which is no doubt available at 'Raurkella' Besides this if a child is admitted/enrolled in a good institution from the primary level it would be more conducive for

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his all round development. Though Palkot is also having an English Medium School where the child is admittedly studying. However there is no infrastructural comparison in between the two places namely 'Palkot' and 'Raurkella'. Raurkella is a well known City having major Steel Plant and Industries etc. Undoubtedly the child will get more proper, conducive environment and educational facilities at Raurkella in comparison to Palkot which a small block Headquarter in Gumla district. On this score I find the balance of convenience, tilting heavily in favour of the father/ natural guardian of the child to have custody of his minor son. A motherless child certainly finds more comfort and security if his/her father is still alive and is present to take his/her care. A loving father compensates to a great extent, the unfortunate early loss of mother of a child. Though loss of mother and that too at an early age is great blow to a child and leaves an indelible mark over the child's personality. The unfathomable loss caused by a blow of fate, cannot be overthrown altogether, but the damage could be mitigated by complete care, protection and love provided by the constant presence of a loving father. The child in question was left at his NANA's (O.P) place with the consent of his father, when he lost his mother and at that time he was about 3 years of age. Certainly at that time he was more in need of his mother than any body else. It was in the best interest of the child that he should be left at her mother's place at that time but presently he is about 5 years of age and now it is high time to look about his better future, proper education and personality development and in my opinion a big city like Raurkella is definitely a better place for proper grooming of the child instead of a block headquarter like Palkot. In addition to this the child will get love and affection of joint Hindu family alongwith the care and guidance of his grand parents with whom the petitioner's father is presently residing, and he intends to take the child there with him. It is also to be noted that the unmarried daughters of Opposite Party (maternal aunts of the child Arush Soni) would eventually get married and start living separately while the Opposite Party /Respondent is an aged person (60 years) and will get more older with the passing of time. Therefore, apparently the petitioner is more competent and fit than the Opposite Party to take care of his son.”

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The aforesaid finding recorded by the Family Court Judge in paragraph No. 25 that the respondent is more fit and competent to take care of his son is an outstanding reasoning given by the learned Judge which is not supported by the evidence on record or any law. We further find that the Family Court Judge held that it would be a great injustice to a motherless child if he would be denied the love, care and custody of his father and at the same time it would cause irreparable injury to the father if he is denied custody of his son. We are of a definite opinion that in a petition under section 7 read with section 10 of the Guardians and Wards Act, 1890 self-interest of a father can never be a relevant consideration, rather under section 13 of the Hindu Minority and Guardianship Act, 1956 it is always the welfare of the minor child that shall be of paramount consideration.

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In “ Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka” (1982) 2 SCC 544 the Hon'ble Supreme Court held that in a fight for custody of a minor child only consideration of the Court should be the child's welfare. Apparently the judgment in Original Suit No. 03 of 2016 is vitiated by irrelevant considerations which the Family Court Judge took into account to arrive at a conclusion that Arush Soni should be given in the custody of his father.

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The Principal Judge, Family Court, Gumla took note of the provisions of Hindu Minority and Guardianship Act, 1956 and apprised himself about the correct legal position that in case of a boy or an unmarried girl the father and after him the mother shall be the natural guardian of a Hindu minor with a rider that custody of a minor who has not completed the age of five years shall ordinarily be with the mother.

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The learned trial Judge extracted the provisions under section 13(1) of the Hindu Minority and Guardianship Act, 1956 which provides that in all cases of the appointment or declaration of any person as guardian of a Hindu minor by a Court the welfare of the minor shall be the paramount consideration. In paragraph No. 17 of the judgment in Original Suit No. 03 of 2016 the Family Court Judge has recorded that the person who seeks custody of the minor child must establish that it is in the welfare of the minor child that his custody shall be with him in preference to the other.

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In paragraph No. 17, the Family Court Judge has recorded as under:

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“17. It has been reiterated time and again, that the person who seeks to have the custody of the minor has a heavy burden on him to show that the welfare of the minor demands that the custody shall be with him in preference to the other. The term "welfare has the widest amplitude. It is to be understood in its widest sense so as to cover in material and physical well being, education, health, happiness and moral welfare of the child. Sections 17 and 19 of the Guardians and Wards Act is also to looked into which contains some guidelines and they can be usefully referred to as the two acts are complementary to each other, normally guardianship or custody of the minor should be entrusted to the natural guardians or those entitled to it under the provisions of the Act, but the paramount consideration is the welfare of the minor. The court may in determining what is for the welfare of the minor has to take into account the age and sex of the minor as also the wishes of the minor where he or she is of sufficient age and discretion to express his or her preference, though in appropriate cases the wishes may be disregarded.

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It would be also convenient to examine the provisions of

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Section 17 of the Guardians and Wards Act. It reads as : Matters to be considered by the Court in appointing guardian -

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(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.

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(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.

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(3) If minor is old enough to form an intelligent preference, the court may consider that preference.”

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From the evidence laid by the parties, we gather that Arun Soni stated in his evidence that he had taken his wife to the hospitals for treatment of her kidney ailment and in the process was constrained to sell off his shop so that he could provide better treatment to his wife. He denied in the crossexamination the suggestions that after his wife fell ill he left her at Palkot, that his father-in-law got her treated, and that he never visited his wife in course of her treatment. But his own witness AW1 stated in the crossexamination that Arun Soni left his wife to her parents' place after she fell ill and AW2 who is the mother of Arun Soni gave a different version on this aspect and deposed in the Court that her daughter-in-law left her matrimonial home on her own after she was detected kidney problem and went to her parents' place with her child and all belongings. In the cross-examination, AW2 failed to state any relevant fact as regards kidney ailment of her daughter-in-law such as when she fell ill and contrary to the records she stated that her daughter-in-law passed away after 6-7 months of illness.

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We further find that Arun Soni admitted in his cross-examination that he has no business in his own name whereas his brothers have their own shops and that he stays with his father and sits in the shop of his brother Vijay Soni. He further admitted that he was treated in a mental hospital at Ranchi in the year 2013 and before that he received treatment at Rourkela during the year 2012-2013. AW1 also admitted in the Court that Arun Soni was treated for mental illness at Kanke, Ranchi. AW1 has also stated in the crossexamination that Arun Soni has no business or any income. Similarly, AW2 admitted in the cross-examination that her son has no business and he sits in the shop of his brother.

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The findings recorded by the Family Court Judge as regards

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addiction of the father of the minor child is patently perverse for the simple reason that the respondent admitted in the Court that he took treatment for mental illness at Prasant Medical, Rourkela. The doctor who treated him also came to the witness box and proved the certificate issued by him vide Exhibit-A and said that the respondent was under his treatment. The materials brought on record unerringly would indicate that the respondent has no independent source of income. Though he set up a plea in the Court that on account of illness of his wife he closed down his business and finally sold the shop, but the overwhelming evidence which has come on this aspect of the matter would show that he has no income and a reasonable inference can be drawn that to satisfy his needs for addiction of psychotropic substance he sold the properties. No doubt a comparative study as regards income of the parties who are claiming custody of the minor child is not always a determinative factor but the Court cannot be ignorant of a situation where a father who is seeking custody of his minor son has no source of income at all. Arush Soni is studying in a good school and there is no allegation of any ill-treatment or incapacity of the appellant to provide him a good environment and upbringing.

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In Halsbury's Laws of England, 3^rd Edition Vol-21 (at page 193-94) it is stated that in any proceedings before any Court concerning the custody or upbringing of an infant or the administration of any property belonging to or held on trust for an infant or the application of the income thereof the Court must regard the welfare of the infant as the first and paramount consideration, and must not take into consideration, whether from any other point of view the claim of the father or any right at common law possessed by the father in respect of such custody upbringing administration or application is superior.

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We must indicate that the Hon'ble Supreme Court has held that under the Guardians and Wards Act the natural guardians of the child have the right to the custody of the child but that right is not absolute and the Courts are expected to give paramount consideration to the welfare of the minor child. In “Anjali Kapoor (Smt.)” minor child was staying with his grandmother for a long time and on facts it was found that he was being brought up in an atmosphere which was conducive to his growth. On such

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facts, it was held by the Hon'ble Supreme Court that it was not proper at this stage to divert the environment to which the child was used to and it was desirable that the maternal grandmother retains the custody of the child. The Hon'ble Supreme Court observed that the matters of custody of the minor child should be decided not on consideration of the legal rights of the parties but on the sole and pre-dominant criterion of what would best serve the interest and welfare of the child.

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In view of the aforesaid discussions, we hold that the judgment dated 6^th December 2016 and decree dated 20^th December 2016 passed in Original Suit No. 03 of 2016 cannot be sustained in law and are accordingly set-aside. Consequently, Original Suit No. 03 of 2016 is dismissed.

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(Shree Chandrashekhar, J.)

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(Ratnaker Bhengra, J.)

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Jharkhand High Court, Ranchi Dated: 6^th April 2022 Nibha/Madhav- AFR

Rameshwar Soni v. Arun Soni

Case brief

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Rameshwar Soni v. Arun Soni

Case brief

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