Dismissed¶53

Shamseen Khan Alias Shamsin Khan Alias Rani v. Sagir Khan

Jharkhand HC10 Sept 2025FA/259/2023

Case brief

AI extract

What is this about?

Guardianship declaration and custody of minor children; Guardians and Wards Act, 1890, Sections 7 and 25; welfare of minors; mother versus father; natural guardian; allegation of mental unsoundness of father not proved; father's second marriage; pendency of murder case under Section 302 IPC against mother (Torpa P.S. Case No. 76/2018); financial capacity and stable environment; uprooting from familiar environment detrimental; First Appeal No. 259 of 2023; High Court of Jharkhand at Ranchi; Khunti; appeal dismissed.

What did the court decide?

Since the petitioner is alleged to have strangled her father-in-law to death and had to remain in custody for a sufficient length of time in that connection, giving custody of the children to her would be detrimental to their overall growth and development. ¶51

Shamseen Khan Alias Shamsin Khan Alias Rani… — Child Custody and Guardianship | Jharkhand HC (2025)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the guardianship case filed by the petitioner is maintainable in its present form. +3 more

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Ratio / Principle

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Key takeaways

Though the opposite party has solemnized a second marriage, there is no allegation that the children are not being properly treated by his second wife.ratio¶51
The petitioner's insinuation that the opposite party is mentally unsound is unsupported by any oral or documentary evidence; the trial court noted that nothing abnormal was detected in his demeanor.ratio¶51
The opposite party established his financial capacity to maintain the children, having sufficient income from rent of his shops and sufficient time to take care of them.

Detailed headnote1 paragraphs

First Appeal by the mother against dismissal of her suit under Sections 7 and 25 of the Guardians and Wards Act, 1890 seeking declaration as guardian of her two minor children. Held, dismissing the appeal: the petitioner faced a pending Section 302 IPC case (Torpa P.S. Case No. 76/2018) alleging she murdered her father-in-law and had remained in custody for a sufficient length of time, so handing over custody to her would be detrimental to the children's overall growth and development; her plea that the father was of unsound mind was unsupported by any oral or documentary evidence, the trial court having noted nothing abnormal in his demeanor; the father established financial capacity from rental income of his shops and a secure, familiar environment for the children notwithstanding his second marriage, there being no allegation of mistreatment by the second wife; the petitioner failed to prove superior capability or financial capacity, and uprooting the children from a familiar environment would harm their mental and physical growth. No interference warranted in the judgment and decree dated 28.06.2023 of the learned District Judge-II, Khunti; pending I.A., if any, closed.

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Neutral Citation No. ( 2025:JHHC:28415-DB )

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First Appeal No. 259 of 2023

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………..

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[ Against the judgment and decree dated 28.06.2023 (decree signed on 10.07.2023) passed by Shri Satyakam Priyadarshi, learned District Judge-II, Khunti in Guardianship Case No. 01 of 2020 ]

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………..

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Shamseen Khan @ Shamsin Khan @ Rani, W/o Sagir Khan and D/o Naseem Khan, R/o Village- Torpa, P.O. & P.S.Torpa, District- Khunti, Jharkhand presently residing at Nagmatia Colony, Road No.- 5, P.O.- Head Post Office Gaya & P.S. Civil Line, District- Gaya, Bihar … Appellant

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Versus

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Sagir Khan, S/o Late Shakil Khan, R/o Village- Torpa, P.O. & P.S.- Torpa, District- Khunti, Jharkhand … Respondent

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………..

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P R E S E N T

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HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE ARUN KUMAR RAI

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………..

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For the Appellant : Mrs. Ritu Kumar, Advocate For the Respondent : Mr. R.P. Gupta, Advocate

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………..

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C.A.V. ORDER

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Per Rongon Mukhopadhyay, J.

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Heard Mrs. Ritu Kumar, learned counsel for the appellant and Mr. R.P. Gupta, learned counsel appearing for the respondent.

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2. This appeal is directed against the judgment and decree dated 28.06.2023 (decree signed on 10.07.2023) passed by Shri Satyakam Priyadarshi, learned District Judge-II, Khunti in Guardianship Case No. 01 of 2020, whereby and whereunder, the suit preferred by the appellant for declaration of the appellant as the guardian of her two minor children has been dismissed.

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3. For the sake of convenience both the parties are referred to in this judgment as per their status before the learned trial court.

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4. The petitioner (appellant herein) had filed a suit u/s 7 and 25 of the Guardians and Wards Act, 1890 for declaring the petitioner as the guardian of her minor children, in which, it has been stated that the marriage of the petitioner was solemnized

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with the opposite party on 09.05.2012 and after marriage the petitioner started residing at her matrimonial house. After spending a couple of months, the petitioner came to know that her husband is of unsound mind and at times he gets attack of insanity and was undergoing treatment from psychiatrist. The opposite party is unemployed and the family meets its expenditure from the income from rent from their small building consisting of some shops. Despite such odds the petitioner tried to adjust in her matrimonial house where her father-in-law also lived with them. Out of the wedlock of the petitioner and the opposite party a daughter was born on 13.03.2013 who was named, Shirin Khan while a son was born on 11.10.2014 named, Ridan Khan. Both the children are school going and are attending a school called Bal Niketan at Torpa. It has been stated that since the opposite party did not keep well due to his mental health the petitioner used to look after her children and also take care of their studies. On 08.12.2018, the petitioner was informed by the opposite party that her father-in-law has died and on hearing the news relatives and friends started gathering at the house. The brother-in-law of the deceased father-in-law of the petitioner also came from Gaya and lodged an FIR at Torpa Police Station alleging the petitioner of committing the murder of her father-in-law. The petitioner was taken into custody on 13.12.2018 and was granted bail on 22.04.2019. After her release the petitioner had gone to her matrimonial house where she was not allowed to enter by the opposite party and his relatives and was also not allowed to meet her minor children and though the petitioner had met the opposite party at Ranchi a few times but she was never taken to Torpa. The petitioner and the opposite party had last met on 02.09.2019 at a public place while the children were not brought by the opposite party and the opposite party had flatly refused to allow the petitioner to meet the children. The father of the petitioner is working in Saudi Arabia while her mother resides at Gaya with her

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younger sister and brother. The petitioner is at present staying at Gaya at her parents’ place and is earning her livelihood by being engaged in tailoring. The opposite party is not competent to act as a guardian to the children owing to his mental condition.

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5. On being noticed the opposite party had appeared and filed a written statement wherein he has denied the allegations leveled by the petitioner against him. The children are happy in the company of the opposite party who is providing the best of education in reputed educational institutions and it is not in the interest of the minor children that they be given in the custody of the mother. It has been stated that the opposite party has a monthly income of Rs. 80,000/- from the shops which has been let out which is sufficient to take care of the minor children. The petitioner has been charged of committing the murder of the father of the opposite party in connivance with Najish Khan. The petitioner after her release from custody never came to her matrimonial house at Torpa nor did the opposite party meet her since then.

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6. Based on the pleadings of the parties the following issues were framed for adjudication:

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(i) Whether this Guardianship case filed by the petitioner is maintainable in its present form? (ii) Whether the petitioner is entitled to a decree for declaration of guardian of minor children and entitled for the custody of minor children?

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(iii) Whether the interest and welfare of minor children is with the petitioner or with the opposite party?

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(iv) Whether the share parenting of minor children is necessary in the instant guardianship case?

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7. The petitioner in support of her case had examined three witnesses including herself.

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8. P.W.1 (Shamseen Khan @ Rani) is the petitioner who has stated that her marriage was solemnized with the opposite party on 09.05.2012 and after marriage she came to her matrimonial house at Torpa. After sometime she could detect the

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abnormal behaviour of the opposite party who used to take medicines and he used to have occasional fits of madness which the Doctor is treating. The opposite party is unemployed and the only source of income is the rent collected. She tolerated such atmosphere in the house and in the meantime, she gave birth to two children; Shirin Khan who was born on 13.03.2013 and Ridan Khan who was born on 11.10.2014. She has stated that on 08.12.2018 when she got up from bed in the morning the opposite party told her that her father-in-law has died. On 09.12.2018 her uncle-in-law Md. Shahid Alam came and on the same day he had lodged a First Information Report at Torpa P.S. She was arrested on 13.12.2018 and was sent to judicial custody. After she was granted bail, she went to her matrimonial house but neither she was allowed to enter nor she was permitted to meet her children. On a few occasions though the opposite party and the children had met her at Ranchi but the opposite party refused to take her back to Torpa. The last time they had met was on 02.09.2019 but the children were not brought by the opposite party. She is at present staying at her parents’ house and doing the work of tailoring. She is competent to take care of the children who have been deprived from the love and affection of their mother.

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In cross-examination, she has deposed that in the year 2018 a case was instituted against her and her accomplice for murdering her father-in-law which is still pending. Her father works in Saudi Arabia. Her husband has a market complex at Torpa which is given on rent but she does not know the income generated from the complex. Her husband has solemnized a second marriage. She earns an amount of Rs. 20-25 thousand per month and is capable to maintain her children.

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9. P.W.2 (Hashmi Jishan) is acquainted with the father of the petitioner who has stated that the petitioner is staying at her father’s place for the last five years and is earning an

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amount of Rs. 20-25 thousand per month by doing the job of tailoring.

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In cross-examination, he has deposed that he knows the petitioner from her childhood as her house is at a distance of 100-200 meters from his house. The petitioner has two machines for doing the work of tailoring and she also has an assistant.

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10. P.W.3 (Hajrat Ansari) is acquainted with the petitioner who stays at her parents’ place and does a tailoring job from which she is earning an amount of Rs.20-25 thousand per month. The petitioner is capable to maintain her children.

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In cross-examination, he has deposed that he does not know as to how many children the petitioner has. The earning of the petitioner has been disclosed to him by the petitioner. 11. The opposite party has examined three witnesses on his behalf.

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12. O.P.W.1 (Sagir Khan) is the opposite party who has stated about the solemnization of his marriage with the petitioner and out of the said wedlock two children were born. His father was murdered by the petitioner and her friend Najish Khan by strangulating him with a thin wire for which Torpa P.S. Case No. 76/2018 was instituted u/s 302 of the IPC and charge-sheet was also submitted. The charge-sheet has been marked as Exhibit-A. After coming out of jail the petitioner is staying at Gaya whereas the children are staying with him. The petitioner does not have any source of income and the family is taken care of by her mother who also does not have any fixed source of income. Both the children are studying in a good school and they are taken care of properly by him. He has denied that he is mentally unsound. He has a monthly income of Rs. 80,000/- per month which is the rental amount collected from his shops constructed by him. His daughter studies at St. Anthony Mission School while his son studies at Bal Niketan School.

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In cross-examination, he has deposed that he has not divorced the petitioner. He has solemnized another marriage with Baby Tabussum in the year 2020. Her father-in-law used to work in Saudi Arabia. He does not do any work for his livelihood and his source of sustenance is the rent from 18-19 shops which amounts to Rs. 80,000/- per month. The market complex was constructed by his father who had a stone mining lease. After the petitioner was released from jail she had come over to his house. 13. O.P.W.2 (Md. Firoz Alam) is acquainted with both sides and he has reiterated what has been stated by O.P.W.1 in his sworn statement.

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In cross-examination, he has deposed that he had taken a shop on rent from the opposite party where he is involved in a tailoring job.

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14. O.P.W.3 (Khursid Alam) has stated similar to that of O.P.W.1.

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In cross-examination, he has deposed that he runs

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a tailoring shop.

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15. It has been submitted by Mrs. Ritu Kumar, learned counsel for the appellant/petitioner that the petitioner is the mother and natural guardian of the children and, therefore, the custody of the child should have been granted in favour of the petitioner. The opposite party has solemnized another marriage and this puts the care and protection of the children at a premium. The petitioner through her evidence has proved that she has sufficient income to maintain the children but none of the facets of the case favouring the petitioner has been appreciated by the learned trial court.

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16. Mr. R.P. Gupta, learned counsel appearing for the opposite party/respondent has submitted that the petitioner is alleged to have committed the murder of her father-in-law at her matrimonial house and giving custody of the children to the petitioner would lead to the petitioner exerting a bad influence

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upon the children. The opposite party has sufficient means of income and the children are being given good education and are being brought up in a secured environment and it would be against their interest if their custody is handed over to the petitioner.

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17. We have heard the learned counsel for the respective sides and have also perused the Trial Court Records. 18. The petitioner has claimed guardianship over the children on the ground of being their mother and her financial capability to maintain the children. The petitioner is alleged to have strangulated to death her father-in-law along with her accomplice Najish Khan for which Torpa P.S. Case No. 76/2018 was instituted u/s 302 of the IPC and the petitioner had to remain in custody for a sufficient length of time. Giving custody to the petitioner in such background facts would be detrimental to the overall growth and development of the children. Both the children are studying in school and though the opposite party has solemnized a second marriage but there does not seem to be any allegation about the children not being properly treated by her. The petitioner has cast insinuation that the opposite party is mentally not sound but neither any oral evidence nor any documentary evidence has been brought by the petitioner in support thereof. In fact, the learned trial court has noted that nothing abnormal was detected in the demeanor of the opposite party. The opposite party has been able to establish that he has the financial capacity to maintain the children. The opposite party has sufficient income generated from rent of his shops and has sufficient time to take care of the children. The petitioner has failed to prove her capability and financial capacity vis-à-vis the opposite party in order to strengthen her claim. Moreover, uprooting the children from a secured and familiar environment and placing them in an environment which is totally unknown to them would act as a detriment to their overall growth, both mental and physical.

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19. The learned trial court has considered all aspects of the matter and after giving our thoughtful consideration to the entire scenario, we are of the view, that no interference is necessitated in the impugned judgment and decree dated 28.06.2023 (decree signed on 10.07.2023) passed by Shri Satyakam Priyadarshi, learned District Judge-II, Khunti in Guardianship Case No. 01 of 2020 and, consequently we dismiss this appeal.

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20. Pending I.A., if any, stands closed.

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(Rongon Mukhopadhyay, J.)

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(Arun Kumar Rai, J.)

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High Court of Jharkhand at Ranchi Dated, the 10^th September, 2025 A. Sanga/-

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Shamseen Khan Alias Shamsin Khan Alias Rani v. Sagir Khan

Case brief

What is this about?

What did the court decide?

Shamseen Khan Alias Shamsin Khan Alias Rani v. Sagir Khan

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

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