The High Court dismissed an appeal seeking custody of a minor son. The father alleged his wife's involvement in a trafficking case and adultery. The Court held that mere accusation without conviction is no bar to custody, as the mother currently cares for the child and earns an income for his upbringing.
Appeal dismissed; custody remains with the respondent.
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IN THE HIGH COURT OF JHARKHAND AT RANCHI F.A. No.285 of 2019
Mukesh Kumar Mahato ..… Appellant
Versus
Yogita Devi .....Respondent
CORAM: Hon’ble Mr. Justice Rongon Mukhopadhyay Hon’ble Mr. Justice Deepak Roshan
--------For the Appellant : Mr. Dr. S. K. Chaturvedi, Adv. For the Respondent : Mr. K. S. Nanda, Adv.
11/10.07.2023
Per Deepak Roshan, J. The instant appeal is directed against the judgment dated 27.07.2019, passed by the learned Principal Judge, Family Court, Bokaro in Original Suit No.408 of 2016 filed under Section 6 read with Section 13 of the Hindu Minority and Guardianship Act, 1956 whereby and whereunder for custody of the minor son, namely, Yash Mahato, has been dismissed.
2. Mr. S. K. Chaturvedi, learned counsel for the appellant submits that the learned Family Court should have considered that the respondent is involved in criminal case under Sections 3, 4 & 5 of Immoral Traffic Act in connection with Dhanbad P.S. Case No.475/2015. He contended that the respondent-wife is living in adultery which is evident from FIR of the aforesaid case. He submits that the custody of the minor child will not be safe in the hand of the respondent-wife as she has conducted second marriage illegally and is not taking care of the child and the Family Court should have considered that the welfare of the child and his custody should have been given to the appellant.
Relying upon the aforesaid submissions he submits that the judgment dated 27.07.2019 deserves to be set aside. 3. Mr. K. S. Nanda, learned counsel for the respondent submits that after birth of the minor son, the respondentmother was sent to her maika for bringing the post pregnancy expenditure and also dowry to the tune of Rs.2,00,000/- (Two
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lakhs). Finally, she was ousted from the matrimonial home, although her family members had given Rs.25,000/- as post pregnancy expenditure.
Learned counsel for the respondent further submits that the appellant had all along deserted her willfully for more than a continuous period of three years. Though the appellant had filed a Matrimonial Suit being TMS No.306/2013 under Section 9 of Hindu Marriage Act, 1955 for restitution of conjugal right, in which she had appeared and filed her written statement but the said suit was withdrawn by the petitioner making wrong statement and without any evidence that the respondent had solemnized another marriage with one Sushil Rao and is living with him.
Learned counsel lastly submits that the child at present is aged about 13 years and for his well being the mother is pursuing his proper upbringing and is also ready and willing to provide better education to the child and at present, she is earning sufficient amount to feed her and her son in decent way and provide proper education and upbringing.
4. Learned Family Court after hearing both the parties framed the following issues: -
i. Whether the petition as framed and filed is maintainable?
ii. Whether it will be in the interest and welfare of the minor Yash Mahato to appoint the petitioner as his lawful guardian?
iii. Whether the petitioner is entitled to get relief as prayed for by him?
5. The case of the petitioner/appellant in brief is that he and the respondent are legally married husband and wife and their marriage was solemnized on 27.02.2009 as per Hindu rites and custom and out of their wedlock, they have been
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blessed with a son namely Yash Mahato who at present is aged about 13 years.
The case of the Appellant is that the respondent is living in adultery and moreover she has been arrested in connection with Dhanbad P.S. Case No. 475/2015 u/s 3,4 & 5 of Immoral Traffic Act and is facing trial in that case as an accused. The respondent is an adulterous lady, and therefore she will not be able to maintain the minor son properly. It is also stated by the appellant that the respondent has filed a case for divorce against him before the learned Principal Judge, Family Court, Dhanbad, in which he had appeared and filed his written statement but his wife (respondent in this case) did not appear on two dates and lastly the said case was dismissed for default. It is also stated that their minor son is living with his mother/respondent, and respondentwife has no source of income to maintain the minor son properly.
6. Having heard learned counsel for the parties and after going through the documents/depositions available on LCR, it appears that the appellant-petitioner has examined himself as P.W.-2 and during his cross-examination he has admitted that he has filed the case for taking custody of his child who was born on 11.03.2010. He had also stated that he has not given any paper regarding his income. Further, he has admitted that since 2012-16 he is not paying maintenance to his child and he does not know in which school his son is studying. It has also been admitted by him that in the case which is pending in a court has at Dhanbad, the respondent has not been convicted.
It further transpires from the records that P.W.-1, father of the appellant during cross-examination has admitted that the said child was born at his Nanihal (Maternal grandparents' house). He has also stated that the appellant gives tuition but does not know whether the respondent works in
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Nagar Nigam or not. He has also stated that he is a senior citizen.
The respondent-wife during her cross-examination has stated that she has only one husband, who is the petitioner/appellant. She admitted that she had filed a case for divorce before the Family Court, Dhanbad against the petitioner. She also stated that she works 4-5 hours per day in Dhanbad Nagar Nigam and gets salary of Rs.5,000/- per month and deposit Rs.3,500/- per month for school fees of her son.
7. It has also come in the evidence that the respondent is taking shelter at her parents' home along with her minor son and upbringing him and providing him education, which shows that the respondent is maintaining and upbringing the minor child properly, which also shows that the respondent is taking all care for paramount consideration for the welfare of the child but the appellant has ignored the said child and neither he took care of the minor child nor is he paying maintenance for the minor child as the petitioner-appellant had admitted in his cross- examination that he is not giving any maintenance to his child since the year 2012.
During the course of argument, learned Counsel for the appellant mainly raised one issue that since the respondent is an accused in a case under Prevention of Immoral Trafficking Act, so she is not capable to maintain and upbring the child. However, it transpires that merely a case was lodged and the respondent was sent to jail and it is not a ground for refusal of the guardianship of the respondent when she is upbringing her child properly.
So far as jointness of family is concerned; the appellant is living with his father who is now a sr. citizen and the respondent is living with her parents. Further, the brother and the father of the respondent have deposed that they are also helping the respondent for proper upbringing of the
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minor child.
8. Paramount consideration is only for the welfare of the child and if the mother is upbringing the child very well and providing him with better education, then only on the ground that a case was lodged against the respondent, the respondent cannot be debarred from the guardianship of the said minor child when she is upbringing the minor child properly.
So far as income of the parties are concerned; they have not filed any documentary evidence but from the oral evidence it has come that the respondent works in Dhanbad Nagar Nigam and gets salary. She also runs a Beauty Parlour and is also rearing cows and sells milk, by which she earns Rs.3,000/- per month which goes to show that the respondent is taking her all exertions for proper upbringing of the minor child.
9. Having regard to the facts as stated hereinabove and the deposition adduced by both the parties, we are of the considered opinion that no interference is required with the impugned judgment and the same, is hereby, sustained. Consequently, the instant appeal stands dismissed.
(Rongon Mukhopadhyay, J.)
(Deepak Roshan, J.)
Fahim/
3 issues framed by the court
Whether the appeal should succeed in altering custody of the minor son from the respondent to the appellant.
Whether the fact that the respondent is an accused in a trafficking case debarred her from guardianship.
Whether the lower court's judgment regarding custody requires interference.
1 provisions across 1 enactments
Mukesh Kumar Mahato
Yogita Devi
Rongon Mukhopadhyay
Deepak Roshan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court