Rajasthan High Court - Jodhpur
Sachin Kalra vs Smt. Jyoti Kalra on 13 September, 2017
Bench: Govind Mathur, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 1323 / 2017
Sachin Kalra S/o Shri Subhash Kalra, aged about 34 years, by
Caste Arora, R/o House No. 226, Mukharji Nagar, Sri Ganganagar,
District Sri Ganganagar (Rajasthan).
----Appellant
Versus
Smt. Jyoti Kalra W/o Shri Sachin Kalra, D/o Shri Subhash Chabra,
by Caste Arora, R/o Near Ramdev School, Kamla Colony, Bikaner
(Rajasthan).
----Respondent
_____________________________________________________
For Appellant(s) : Mr. G.J. Gupta
_____________________________________________________
HON'BLE MR. JUSTICE GOVIND MATHUR
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment 13/09/2017 This appeal is preferred to question correctness of the order dated 07.04.2017 passed by learned Family Court, Sriganganagar in Civil Misc. Case No.19/2016.
By the Order aforesaid, learned Family Court dismissed an application preferred as per provisions of Section 25 of the Guardian and Wards Act, 1890 (for short, "the Act of 1890").
In brief, factual matrix of the case is that respondent entered into a wedlock with appellant-applicant on 13.09.2007, as per Hindu customs and rites. The couple is having a male child who was born on 29.01.2010. Since birth, the boy is residing with his mother, the respondent. Since 30.05.2014, the couple is residing separately and a divorce petition preferred by the respondent has already been granted and a decree to annul the (2 of 3) [CMA-1323/2017] marriage dated 13.09.2007 has already been granted.
The appellant preferred an application under Section 25 of the Act of 1890 with the assertion that being father he is a natural guardian of the male child and, therefore, his custody is required to be given to him.
Learned Family Court, after examining the entire evidence available on record, arrived at the conclusion that the welfare of the child demands to continue the custody with his mother.
In appeal the argument advanced by learned counsel appearing on behalf of the appellant is that the Court below has taken into consideration the irrelevant aspects while dealing with the issue pertaining to custody of child. It is emphasized that as per the evidence available on record the issues taken into consideration too are not based on well founded facts.
We do not find any merit with the argument advanced. Learned trial Court noticed that the appellant is facing a trial for an offence punishable under Section 376 IPC and there are serious allegations even to misuse of information technology to the extent of keeping and watching porn on Artificial Intelligence Devices. Learned Court below has also taken into consideration the facts pertaining to the cruelty, advanced by the respondent while pursuing her application under Section 13 of the Hindu Marriage Act which ultimately came to be accepted.
Besides the above, the Court also noticed that the male child is residing with his mother since birth and she is taking adequate care of his welfare. Pertinent to note that the Court has secured (3 of 3) [CMA-1323/2017] right to visit in favour of the appellant.
In entirety, we are of the view that learned Family Court while rejecting application under Section 25 of the Act of 1890 kept in mind the welfare of the child. The order, as such, does not suffer from any wrong that may warrant interference in appellate jurisdiction. The appeal hence is dismissed.
It is made clear that dismissal of this appeal will not be an impediment for moving application afresh on change of circumstances due to any reason including the acceptance of the appeal preferred by the appellant to challenge the divorce decree or otherwise.
(VINIT KUMAR MATHUR) J. (GOVIND MATHUR) J. Ramesh/13