Dismissed

Prabat Singh v. Roopkanwar @ Rubi

Rajasthan HC12 Sept 2023CMA/1415/2023

Case brief

AI extract

What is this about?

In a civil miscellaneous appeal regarding custody of a minor son, the High Court dismissed the father's challenge to the trial court's order retaining custody with the mother. The court held that the child's welfare, the father's neglect, and the child's preferred attachment to the mother justified the trial court's decision.

What did the court decide?

The civil miscellaneous appeal was dismissed in limine.

Prabat Singh Vs Roopkanwar @ Rubi — Child Custody and Guardianship | Rajasthan HC (2023)

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[2023:RJ-JD:28929-DB]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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D.B. Civil Misc. Appeal No. 1415/2023

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Prabat Singh S/o Shri Fathe Singh, Aged About 35 Years, Resident Of Village Lodrawa, Post Roopsi, Ps Jaisalmer, Tehsil Jaisalmer, District Jaisalmer, Rajasthan.

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----Appellant

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Versus

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Roopkanwar @ Rubi W/o Shri Parbat Singh, Aged About 33 Years, D/o Shri Gajesingh, Resident Of Village Hariadhana, Tehsil Bilara, Ps Pipar City, District Jodhpur, Rajasthan, Presently Resident Of Houses No. 143, Vidhya Nagar, Paota C Road, Tehsil And District Jodhpur Rajasthan.

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----Respondent

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For Appellant(s) : Ms. Ruchika Mr. Vijay Solanki

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HON'BLE MR. JUSTICE VIJAY BISHNOI HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI

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Judgment

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12 / 09/2023 (Per Hon’ble R.P. Soni, J.)

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This appeal has been preferred by the appellant-husband against order dated 25.07.2023 passed by learned Family Court No.2, Jodhpur in Civil Case No. 06/2018 (N.C.V No. 24/2015) by which learned trial court has dismissed the prayer of appellant for custody of the child, who is currently residing with the respondent.

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As per facts available on record, the appellant and the respondent tied matrimonial chord on 30.06.2006 as per Hindu rituals and ceremonies. This sacrosanct alliance eluded the couple, inasmuch as soon after the marriage, and matrimonial discord

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[2023:RJ-JD:28929-DB]

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[CMA-1415/2023]

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(2 of 9)

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surfaced, which has loosened the said knot. Both the parties blame each other for sordid state of affairs. Over a period of time, relationship between the parties has been ruined. What is more unfortunate is that the acrimony between two of them, because of which they are living separately since 2007, life of their only child Shivam @ Shiv Raj Singh, who was born from their wedlock on 12.01.2008 is becoming more and more miserable.

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The appellant herein pleaded that respondent has chosen to live with her parents willingly and refused to live a married life with the appellant. She has deserted matrimonial home and broken the institute of marriage. She is currently residing separately without any sufficient reason. She has filed various cases against the appellant and his family members. It is further pleaded that respondent is not leading a chaste life and is seeking to sever ties with the appellant through divorce. Appellant is very much affectionate towards his son and is very much interested in his welfare. He can offer a better future for his child as the child is not being maintained and looked after properly by the respondent. The appellant is keen on taking custody of the child to provide him with better education and upbringing. Despite several attempts to take custody, respondent has consistently refused.

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It is further pleaded that continued life of the child with the respondent will be against the context of the child. Appellant is natural guardian of the child under the law and, therefore, entitled to have the custody. For these reasons, he prayed for the custody of the child.

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[2023:RJ-JD:28929-DB]

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[CMA-1415/2023]

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(3 of 9)

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Respondent-wife stated in reply that husband himself has thrown her out of in-laws house and behaved with cruelty. Appellant has never been affectionate towards the child. He has not even deposited the amount ordered by the court for the maintenance of the child. She has been in continuous possession, care and protection of the child since birth and appellant has no love and affection for his son. For physical and mental well-being and proper upbringing of the child, she is entitled to retain custody of the child, being her mother. According to her, she is bringing up the child in an affectionate manner and in healthy manner. All other allegations including her reputation were denied. She is very much attached towards her son and the son is also keeping good health and is getting good education. On these grounds, the respondent wanted dismissal of petition.

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The trial court framed the issue which touched upon the dispute that is whether the appellant herein is entitled to have custody of his minor son. 7. Evidence was led by both the parties, who examined themselves as PW-1 and DW-1 respectively. The respondent also got the statement of his minor son Shivraj Singh recorded. 8. After taking into consideration the entire evidence both oral and documentary, learned trial court was of the opinion that the respondent, being mother of the child, was better suited to retain the custody and to take care of the child and this course of action is in the best of interest of the child. Trial court, therefore, dismissed the petition filed by the appellant.

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(4 of 9)

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[2023:RJ-JD:28929-DB]

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[CMA-1415/2023]

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Heard learned counsel for the appellant at the admission stage and perused the record.

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The only question that requires consideration in the present appeal is how far the learned Judge was correct in holding that the father is not entitled to have the custody of the child.

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Based upon the provision of section 6(a) of Hindu Minority and Guardianship Act 1956 (for short “the Act”), learned counsel for the appellant argued that the appellant is natural guardian of the child and is competent to maintain his son properly. He is seeking custody of his son with a view to make his future bright, therefore, he prayed to set aside the impugned order and allow the appeal.

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In the instant appeal, we are concerned with the most delicate and difficult problem, namely, who should be given the custody of minor Shivam @ Sivraj Singh. 13. It is well settled that in matters concerning custody of minor children, the paramount consideration is welfare of the child and not the legal rights of this or that particular party. 14. There is no dispute that appellant is the natural guardian, he being father of the minor son. After a father, a mother is the natural guardian. But guardianship alone is not sufficient to have custody of the child.

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Upon perusal of relevant provisions of the Act, which clearly emerge that in the matters relating to the custody of a child, paramount consideration of welfare of the child must weigh with the court and while examining “welfare of the child”, said term

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(5 of 9)

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[2023:RJ-JD:28929-DB]

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[CMA-1415/2023]

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must be given effect to in its broadest sense. Welfare of the child is not to be measured by money or merely physical comfort only. Word “Welfare” must be taken in its widest sense and overall welfare of the child must be considered. Aforesaid aspect has been consistently highlighted over the years in several judicial pronouncements of Hon’ble the Apex Court.

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Where a child feels tormented because of strained relationship between his parents and ideally needs company of both of them, it becomes, at times, a difficult choice for the court to decide as to whom custody of the child should be given. However, many times, prevailing circumstances are so puzzling that it becomes difficult to weigh the conflicting parameters and decide on which side the balance tilts. 17. The trump card in the arguments of appellant is that he is an Army personnel and children of soldiers receive numerous facilities that contribute to their comprehensive development including good education. These benefits can help foster a disciplined and structured life for his son, which otherwise, respondent cannot provide at all, therefore, he is the right person to bring up the child. The argument looks attractive but at the same time it overlooks a very significant factor. During the course of his service tenure, appellant would also be getting posted at non-family stations. He may also task with variety of hard duties including combat operations, conducting patrols and reconnaissance missions in potentially hostile areas, humanitarian aid operations

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(6 of 9)

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[2023:RJ-JD:28929-DB]

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[CMA-1415/2023]

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such as disaster relief etc. In such situations, it will be impossible for him to keep the child with him.

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As per the impugned order, appellant has admitted in his deposition that he has not even seen the child since he was born; he is not contributing to the growth and maintenance of child; he has not sent any money for the maintenance of child as their relationship was strained; he is unaware of his son’s schooling details including his present class and school; he has never brought any gifts or clothes for his son. In view of these admissions, the appellant cannot be a beneficiary of his own wrongs. So far as obligation of appellant towards his minor son is concerned, ample material is available on record to show that appellant had neglected his son and the intention of the appellant was to abandon the child. It is only after issuance of warrant of recovery by the court concern, the appellant is depositing the maintenance amount.

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According to the impugned order, child Shivam @ Shivraj Singh is now nearing 16 years and he is attending the school. For entire part of his life, he has been with the mother and mother only. The conduct of the father has not been such as to inspire confidence in us that he is a fit and suitable person to be entrusted with the custody of the child. There has been no attempt by the appellant to show any interest in the welfare of the child.

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In examination before the trial court, child Shivam @ Shivraj Singh has shown his affinity towards his mother rather than father

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[2023:RJ-JD:28929-DB]

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[CMA-1415/2023]

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(7 of 9)

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and has expressed that he would not like to live with his father. He preferred her mothers company as the bond between them was greater.

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In the instant case, the factors which weigh in favour of the respondent are that child is living with her mother since birth. The appellant has also admitted in his deposition that the respondent currently earns an income of Rs. 80,000-85,000 per month by doing tailoring and tuition work. It proves that she is having sufficient means to maintain the child. For the last 16 years, it is the respondent, who had nursed the child and has taken care for his bright future. Taking into account present working and earning of mother, we feel that she can attend all the needs of the child and she is better suited for his future requirements since she is working as private teacher, she is in much better position to take care of his educational needs as well. The appellant cannot even claim to have an edge over the respondent during this period. Desire of child is to continue to live with the mother. Obviously, he is very much attached to the mother and he thinks that he should remain in the present environment. A child who has not even seen, experienced or lived with his father, will naturally find it impossible for him to adapt to his company.

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This Court cannot turn a blind eye to the fact that there have been a strong feelings of bitterness, anger and distress between the husband and wife, which led to the separation. The intensity of negative feelings of the child towards the father would have

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(8 of 9)

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[2023:RJ-JD:28929-DB]

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[CMA-1415/2023]

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obvious effect on the psyche of minor child, who has remained in the company of his mother, to the exclusion of his father.

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The role of mother in development of a child’s personality can never be doubted. It is most natural thing for any child to grow up in the company of once mother. Neither the father nor any other person can give the same kind of love, affections, care and sympathies to a child as that of a mother. The company of a mother is more valuable to a growing up child unless there are compelling and justifiable reasons, a child should not be deprived of the company of the mother.

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As per the provisions of the Act, no rights are created, it only creates obligations on the parents in regard to their children. Obligations are required to be discharged properly with care, affections and devotion. We are also conscious that the father, being the natural guardian, has a preferential right to the custody of his child but keeping in view the facts and circumstances of the case and wishes of the child, we feel that the better course is to allow the child to continue to be with his mother since she is not only maintaining her son properly but also have sufficient means to maintain him as well as has genuine love and affections for the child coupled with having ample time to spend with the child. It is also apparent that the mother has taken care of her minor son for his bright future. According to us, the welfare of the minor would be better looked after by the mother.

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(9 of 9)

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[2023:RJ-JD:28929-DB]

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[CMA-1415/2023]

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In the light of the above, the contention made by the learned counsel for the appellant relying upon section 6 (a) of the Act does not stand to reason.

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Considering the totality of the facts and circumstances, factors in favour of mother are weightier than those in favour of the father and welfare of the child lies with the mother. We are of the view that the father was not entitled to have custody of the child. Considering the crucial age of the child, the mother should not be deprived of the custody of her son and better course was to allow the child to continue to be his mother and grow in her custody.

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In the considered opinion of this Court, we do not find any illegality, material irregularity or jurisdictional error which calls for any interference. Resultantly, present appeal sans substance being devoid of any merit and deserves to be dismissed at the admission stage itself.

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Accordingly, the present civil misc. appeal stands dismissed in limine.

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(RAJENDRA PRAKASH SONI),J

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(VIJAY BISHNOI),J

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198-nitin/-

Prabat Singh v. Roopkanwar @ Rubi

Case brief

What is this about?

What did the court decide?

Prabat Singh v. Roopkanwar @ Rubi

Case brief

What is this about?

What did the court decide?

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