Jharkhand High Court
Dr. (Prof) Chanchal Kumar Pandey vs Rani Kumari on 26 September, 2024
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra, Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 45 of 2021
Dr. (Prof) Chanchal Kumar Pandey, age about 54 yrs, S/0 Late
Bishwanath Pandey, R/0 Khazanchi Road (Gyanpith Premises),
P.O-Bankipur, P.S-Pirbahore, District-Patna, Bihar
....... Petitioner- Appellant
Versus
Rani Kumari, W/o Dr. (Prof) Chanchal Kumar Pandey, D/o Sri
Ram Nath Dubey, R/o Laxamipara, East Kumhartoli (56 set), PO
& PS Doranda, District Ranchi, Jharkhand
....... Respondent-Respondent
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CORAM: HON'BLE MR. JUSTICE RATNAKER BHENGRA HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellant : Mr. Mukesh Kumar Dubey, Advocate For the Respondent : Mr. Bageshwar Singh, Advocate
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th CAV on: 04 March, 2024 Delivered on: 26.09.2024 The present First Appeal has been filed on behalf of the appellant by challenging the judgment dated 16.07.2021 passed by Sri Peeyush Kumar, then learned Principal Judge, Family Court, Ranchi in Original Suit no.608 of 2017 (CIN 688/JHR No.5000905/2017) by which the learned Court below has dismissed the suit filed by the petitioner-appellant under Section 7 of the Guardian and Wards Act, 1890.
However, the learned Court below has allowed the visitation right of the petitioner-appellant on every Sunday between 5 p.m. to 7 p.m. outside the residence of the respondent to meet the child and also to talk with the child through Video Conferencing every week on Thursday between 6 p.m. to 7 p.m.
2. The case of the petitioner-appellant, in brief, is that the marriage between the appellant and respondent was solemnized on 23.06.2010 in accordance with Hindu rites and rituals. After 1 marriage they lived together as a husband and wife and from their marital wedlock a son, namely Jyotir Aditya Pandey alias "Yug" was born on 25.03.2011. After the birth of the child, the respondent remained peacefully for few months but during stay the appellant observed that the respondent has no interest in him and in the month of September, 2012 the respondent without informing the appellant and his family members, left her matrimonial home and started living at her parental home.
It is further case of the appellant that he used to come to Ranchi to meet the child and the respondent from time to time. After September, 2012 their marriage never consummated, however, the appellant borne all the expenditure of the respondent and his child. One day the brother of respondent confined the appellant in a room and assaulted him and for which he had lodged a criminal case bearing Doranda P.S. Case No.167/2013 corresponding to G.R. Case No.1967/2013 which is pending. The respondent had also lodged a criminal case against him levelling false allegation of dowry. The respondent has also lodged a maintenance case in which Rs.15,000/- per month for the respondent and Rs.5,000/- for the child per month, total Rs.20,000/- was awarded which is being regularly debited from the salary of the appellant.
It is also the case of the appellant that the respondent is not looking after his son properly. The son is six years old but his education and health are not being taken care of by the respondent. The physical growth of the child is not according to his age and the appellant has reasonable apprehension that his only child is suffering from undernourishment. The son of the appellant always remains sick and needs continuous medical attention. The appellant got treated his son by Dr. Amit Mohan at Sentevita Hospital etc. 2 and took him for better medical facilities, but the respondent did not take care of his son properly. The respondent leaves the child with her parents and moves somewhere else for a period of 15 days.
It is stated that the respondent has solemnized another marriage with one Sanjeev Kumar alias Sonu, resident of Kumhartoli, 56 Set, Doranda, Ranchi, who is a Medical Representative and lives at Bokaro. The respondent used to visit Bokaro for days together and lives with the said Sanjeev Kumar alias Sonu as a Wife and Husband. During her absence the child lives at Ranchi and he is being looked after by his grandfather, as such the child is not taken care of properly. Hence, the custody of the child may be given to the appellant. The appellant is a Professor and well-educated person and belongs to a highly educated family. The appellant resides in a prime location of Patna City from where so many renowned school of children are located and also better health facilities is there. Therefore, the custody of the son, namely Jyotir Aditya Pandey alias "Yug" may be accorded to the appellant. The child, namely, Jyotir Aditya Pandey alias "Yug" is presently living with his mother at Doranda, Ranchi, hence the Family Court, Ranchi has jurisdiction to hear the present suit.
3. The case of the respondent, in brief, is that the appellant has filed the case on the basis of false, frivolous and fabricated grounds, as such not maintainable and is liable to be dismissed. This case has been filed by the appellant-petitioner by concealing the facts and this case is not according to Section 10 of the Guardian and Wards Act, 1890. She denied all the allegations levelled by the appellant in her written statement. It has been denied that the respondent became sorry to know that she is 3 pregnant and this time was of her enjoyment. It has been denied by the respondent that she has not taken the care during the pregnancy period. However, during her pregnancy, the appellant has not provided any medicine and food properly and due to which the child was born but not much more developed physically and mentally. It is alleged that the mother-in-law of the respondent always taunted that she is a patient of Thyroid, so she could not give birth to a child. Her father had advised her to avoid all these things.
It is further case of respondent that family of the appellant was believe in "Ojha and Tantar Mantar" and also family members of the appellant alleged her as murderer and characterless. It is further case of the respondent that one day she read in the Newspaper that the wife can claim half share of the income of the husband and when her mother-in-law heard this, then the appellant and his mother unnecessarily assaulted her. Thereafter, the respondent called Dinanath Dubey and came to Ranchi on 17.09.2012. The respondent has also filed case in Mahila Police Station bearing Case No.05/2013 on 30.07.2013 under Section 498A and 34 of IPC and ¾ Dowry Prohibition Act and in which charge sheet has been submitted by the Police. It has also been stated that appellant is paying Rs.20,000/- per month to the respondent as maintenance as per order of the case under Section 125 Cr.P.C. It has been stated that the appellant never provided economical and monthly help to the child. It is stated that for the development of the child and for the intellectual development of the child, the respondent is nursing the child very well in the low income. It is denied by the respondent that she has married with another boy Sanjeev Kumar @ Sonu and she does not know whether such person was living at Bokaro/Dhanbad and was 4 working as a Medical Representative. It is further stated that she never went to Patna or Maharaja College with such Sanjeev Kumar @ Sonu. She also denied that the respondent is living with such person by leaving the child in the house of her father. It is stated that the Appellant is a Lecturer of Economics in Maharaja College, Arrah, Bihar and he has parental home. However, the said child Yug Pandey is residing with the respondent (mother) and studying at Colonel Public Nursery School. It is further case of the respondent that the child will not safe in the hands of the appellant. It is further case of the respondent that appellant has filed a case for cancellation of maintenance order which shows that the appellant has no sympathy with the child. Hence the case of the appellant may be dismissed.
4. Heard Mr. Mukesh Kumar Dubey, learned counsel for the appellant and Mr. Bageshwar Singh, learned counsel for the respondent.
5. It is submitted by the learned counsel for the appellant that the impugned judgment dated 16.07.2021 passed by the learned Principal Judge, Family Court, Ranchi is illegal, arbitrary and not sustainable in the eye of law. It is submitted that the learned Court below has not appreciated the evidence of the appellant properly and has wrongly dismissed the suit, although he has allowed the visitation right of the appellant once in a week outside the house of the respondent and also once in a week by way of Video Conferencing only for one hour. It is submitted that this is a custody of the child Jyotir Aditya Pandey @ Yug, who is son of the present appellant and right of custody of that child is subject matter of the case but the learned Court has decided the custody of another child namely Aditya Jyoti. It is submitted that learned Court below has not appreciated the evidence produced by the 5 appellant vide Exhibit-1 to 1/14 and Exhibit-3 respectively. It is submitted that Exhibit-D to D/16 respectively have not been properly appreciated and Exhibit-D to Exhibit-D/16 show the custody of another child namely Aditya Jyoti and as such, the impugned judgment passed by the learned Court below is erroneous. It is submitted that the learned Court below has failed to consider that the visitation right, accorded to the appellant in assailed judgment is not for the children for which the custody was sought for by the appellant. It is submitted that the learned Court below has failed to consider that the evidence produced by the respondent reveals that she was completely negligent with the future of the child. It is submitted that the learned Court below has failed to consider the facts that the respondent was not taking proper care of the child in question. It is submitted that the learned Court below has passed the impugned judgment and decree in a mechanical and arbitrary manner and hence the impugned judgment and decree may be set aside and this First Appeal may be allowed.
6. On the other hand, learned counsel for the respondent has submitted that the impugned judgment passed by the learned Court below does not require any interference from this Court. It is submitted that the learned Court below has rightly dismissed the suit filed by the petitioner-appellant and has liberally allowed visitation right of the appellant for the two days in a week i.e., one day in physical mode for two hours and other day through Video Conferencing for an hour and hence no illegality has been committed by the learned Court below. It is submitted that appellant had not been taking any care of the child and even the appellant has thoroughly neglected the respondent since the year 2012. The appellant has not taken any step for treatment of the 6 child and the appellant is not even following the direction of the learned Principal Judge, who by impugned judgment dated 16.07.2021 had directed to meet his child at Ranchi. But the appellant neither come to Ranchi to meet his son nor made any attempt to talk with his son. It is submitted that the appellant has neither paid anything to her nor to her son since 17.09.2012. It is submitted that there is no dispute in the identification of the child of both the parties i.e. the appellant and the respondent as they have got only one child. It is submitted that the appellant has even filed a Divorce Petition in the court below which is still pending at Civil Courts, Patna. It is submitted that the learned Court below has rightly dismissed the suit and hence this First Appeal may be dismissed.
7. The petitioner-appellant in support of his case, has got examined five (05) witnesses who are as follows:-
(i) P.W-1 is Dr. Chanchal Kumar Pandey i.e. the appellant,
(ii) P.W-2 is Sharat Pandey i.e. the elder brother of appellant,
(iii) P.W-3 is Arun Kumar Tiwari, Maternal Uncle of the appellant,
(iv) P.W-4 is Paras Kumar, student of petitioner-appellant and
(v) P.W-5 is Dr. Akhilesh Kumar Chaudhary, Retired Doctor of Jharkhand Government.
8. The petitioner-appellant in support of his case has got proved the following documents as the Exhibits which are as follows:-
(i) Exhibit-1 to 1/14 respectively are the Original Doctor‟s Prescription and Reports of the child,
(ii) Exhibit-2 to 2/1 are the Original Copy of Retail Invoice of Santivita Hospital and cash settlement receipt,
(iii) Exhibit-3 is the Original Copy of North Point School receipt,
(iv) Exhibit-4 to 4/4 respectively are the Colour Photographs of child Yug Pandey,
(v) Exhibit-5 is the Photocopy of Doctor Discharge Summary,
(vi) Exhibit-6 is the Photocopy of LIC Premium Receipt,
(vii) Exhibit-7 is the Certified copy of the order dated 10.04.2014 passed in ABA No.4835/2013, 7
(viii) Exhibit-8 is the Certified copy of the deposition of Sushil Kumar Singh in MAC 13/2017 and
(ix) Exhibit-9 to 9/3 respectively are the Colour Photographs.
9. The wife-respondent, in support of her case, has got examined two witnesses who are as follows:-
(i) R.W-1 is Rani Kumari, the respondent herself and
(ii) R.W-2 is Ramnath Dubey, father of respondent
10. The wife-respondent in support of her case has got proved the following documents as the Exhibits which are as follows:-
(i) Exhibit-A is the Certificate dated 10.08.2017,
(ii) Exhibit-B to B/15 respectively are the Bills of Christian Medical College, Vellore,
(iii) Exhibit-C to C/2 respectively are the Pharmacy Cash Receipts,
(iv) Exhibit-D to D/16 respectively are the School Fees and Bus Fee receipts,
(v) Exhibit-E is the Memo No.739 dated 21.10.2019 i.e. an information under RTI (7 sheets),
(vi) Exhibit-F is the Achievement Record of the child for year 2018-19,
(vii) Exhibit-G to G/1 are the Doctors Prescriptions dated 07.02.2020 and 12.01.2020 respectively,
(viii) Exhibit-H is the Annual Fee Receipt of Aditya Jyoti,
(ix) Exhibit-I and I/1 are the Amount Books cash receipt and Book List and
(x) Exhibit-J is the Certified Copy of Deposition of Ajit Kumar Upadhyay in MAC 01/2008
11. The learned Court below has framed the following issues:-
(i) Whether the suit of the petitioner is maintainable or not?
(ii) Whether there is a valid cause of action or not?
(iii) Whether this suit has been filed in accordance with the format given under Section 10 of the Guardian and Wards Act, 1890?
(iv) Whether this Court has jurisdiction to try this suit?8
(v) Whether petitioner Dr. Chanchal Kumar Pandey may be appointed guardian and custody of child may be given to him?
(vi) Whether it would be good for the welfare of the minor child to hand over his custody to the petitioner?
(vii) Whether the allegation that child is not being taken proper care by respondent because she has already married with another man is true and correct?
(viii) Whether the petitioner is entitled to get the custody of minor child as per settled legal position?
12. Thereafter the learned Court below after hearing both the sides has dismissed the suit filed by the petitioner-appellant.
However, the learned Court below had allowed the visitation right of the petitioner-appellant by directing to meet with the child on every Sunday between 5.00 p.m. to 7.00 p.m outside the residence of the respondent and also the appellant can talk with the child through Video Conferencing every week on Thursday between 6.00 p.m. to 7.00 p.m. The respondent has also been directed to facilitate this direction of visitation to the petitioner without creating any hindrance and disturbance.
13. Therefore, the appreciation of the evidence of both the sides will be necessary.
14. P.W-1 is Dr. Chanchal Kumar Pandey i.e. the appellant, who has stated during his evidence that his marriage was solemnized with the respondent-Rani Kumari on 23.06.2010 as per Hindu customs in Ranchi and on the next date he had hoisted a reception on 26.06.2010 at Patna and in which family members, relatives of both the sides were present. After marriage they have been blessed with one child on 25.03.2011 who is named as Jyotir Aditya Pandey @ Yug and there was a huge occasion to celebrate the 9 occasion and the people of both the sides had participated in the ceremony of the child. However, the respondent was not satisfied with the pregnancy and the appellant has somehow managed to convince her by treating her during her pregnancy by showing her with Dr. Sushma Pandey, Dr. S.B. Pandey, Dr. Prabha Sinha, Manas Nursing Home, Patna time to time. However, the respondent never remained happy. He anticipated that after birth of child, everything will be smooth but she never cared his suggestion and desired that her pregnancy may be terminated as she does not want the child at this stage and the appellant was sad with the behaviour of the respondent. Even on 24/25.03.2011 in the night he had managed Ambulance for admitting her to Manas Nursing Home and on 25.03.2011 at around 1.01 p.m she had given birth to a child by „Cesarean Operation‟ and at that time of operation his mother Madhuri Lata Pandey had herself been present and had put her signature on the Risk Bond Operation which can be confirmed from the Advisory Prescription of Surgeon, Dr. Prabha Sinha of Manas Nursing Home. He incurred all the expenses during pregnancy of the respondent. His son „Yug‟ remained with him for one and half year after his birth and at that time he had got conducted all the Vaccination, Medical Test etc. time to time and the child was completely healthy and his physical development was proper and he got treated his child „Yug‟ with Dr. Sunil Kumar, Dr. Niraj Sinha, Ispat Hospital, Mecon, Ranchi, Dr. Ajay Ghosh, Dr. A.K. Jaiswal and Dr. Avinash Kumar Sahay etc. and also got conducted medical test. He further proved the Medical Prescriptions and Test Report of the above doctors marked as Exhibit-1 to Exhibit-1/14 (with objection) respectively. However, the respondent, with the consent of the petitioner-appellant in September, 2012 went to her Maike at Ranchi along with her 10 brother and since then she is living in her Maike. Even the appellant used to visit his child at Ranchi and used to look after and nourish him and got him treated and he used to send the money by Money-order and Account Transfer.
15. He further stated that in December 2012, the respondent and his family members confined him and abused and assaulted him and for which he had instituted Doranda P.S. Case No.167 of 2013 and thereafter the respondent had also instituted a case against the appellant of dowry torture and maintenance. However, the Court had passed ex-parte order in Maintenance Case No.179 of 2013 by which he was directed to pay Rs.15,000/- per month to the respondent and Rs.5,000/- per months to the child and which is being paid from the salary of the petitioner-appellant through his Bank Account directly and till date he is regularly paying the amount from his salary to the respondent and has paid more than Rs.6,00,000/- (Rs. Six Lakhs) to the respondent within two years. Later on, he learnt that birth of his son is not proper and his physical development is not going on as per his age although he is regularly paying the maintenance amount. The respondent is not properly taking care of the child and is not conducting his medical test due to which the child is underdeveloped. Thereafter he got treated his child with Dr. Amit Mohan in Ranchi on 24.03.2013 and he got admitted his son in Santivita Hospital on 09.04.2013 and for which he had incurred all the expenses. He also proved the copy of Prescription, Hospital Receipt of Dr. Amit Mohan as Exhibit-2 to 2/1 (with objection). He further alleged that the respondent used to remain missing from the house after keeping her child with her Nana at Ranchi and due to which the nursing of his child is not proper. He has further claimed to have learnt reliably that the respondent used to live with her childhood friend 11 Sanjeev Kumar @ Sonu, resident of Kumhar Toli, Chappan Seth, Doranda, Ranchi and who used to remain in the house of the respondent prior to the marriage and after the marriage and said Sanjeev Kumar is by profession M.R (i.e. Medical Representative) and he used to live with the respondent Rani Kumari at Bokaro and at Dhanbad in rented house like husband and wife and during this period the child used to remain with his Nana and due to which his care is not being taken properly. The behaviour of the respondent shows that she has no care of her child and her personal life is more important than caring the child. He further stated that he is an educated person and there are several schools near his house in Patna Town and there is proper arrangement of medical facilities and as such he is ready to maintain and nurse and look after his child for his bright future. He is ready to make proper arrangement for the health, education and welfare of his child.
16. During cross-examination, P.W-1-the appellant stated that he was aged around 42 years at the time of his marriage and his wife has two certificates and according to which she was aged around 26 years or 28 years. He admitted that marriage had taken place in Ranchi on 23.06.2010 and his father in-law is one Ramnath Dubey. He also stated that nothing was demanded at the time of marriage from his side. He had started job in the year 1996 on the post of Lecturer at Maharaja College, Arrah and his elder brother is in UNICEF, Ranchi and one of his other brother is in private job in Bombay and his father has died, who was Director in Akashvani and his Mother, Mousi-Archana Sarswati and he remains in his house. He asserted that at the time of birth of his son, around 600- 800 people had assembled at Patna and even Kashi Nath Dubey and Shambhu Nath Dubey i.e. brothers of the respondent, had 12 attended the function which was solemnized in the premises of Raja Ram Mohan Roy School.
He admitted to have not stated about the name of Dr. Sushma Pandey, S.B. Pandey, Prabha Sinha, Manas Nursing Home in his original application and he has not kept the expense of treatment of his wife. However, he could not say the day and date on which the respondent was not happy but stated that the respondent used to threaten for terminating her pregnancy and was not taking medicine timely. He stated that „Arrah‟ is his birth place and he used to go to Arrah from Patna which is situated at a distance of 50 Kilometer from Patna and his movement depends upon the timing of the class of the College. He denied the suggestion that he, his mother and his mousi were unhappy during the pregnancy of the respondent and his mother used to compel the respondent to visit doctor by wearing Glazing Sari. He denied the suggestion for not administering Tetvac Injection to his child. He also denied the suggestion of taunting of his mother with the respondent.
He further stated that the respondent had concealed her ailment of Thyroid and he learnt during her pregnancy that she was having Thyroid but she was not taking the medicine of Thyroid which was dangerous for child and the mother. He has denied the suggestion of various atrocities committed upon the respondent by his mother.
He admitted that he was granted Anticipatory Bail by the High Court in the case instituted for the offence under Section 498A IPC by the respondent and he, his mother and his mousi are the accused in the said case. He admitted that one B.K. Lal was a Mediator in mediation at the time of his bail. However, he denied the suggestion that he had taken the child from the Mediator for few minutes and he had taken the child outside by giving him 13 medicine and due to which his condition became bad. He further denied that the respondent was not doing total household work and one maid servant was doing work in his house. He denied the suggestion for believing in Ojha and Guni by his family members. His father has died at the age of 76 years due to Cardiac Arrest. He denied the suggestion that his family members used to question the character of the respondent. He also denied the suggestion for calling Ojha/Tantrik in his house on the ground of shadow on the person of the respondent.
He admitted that the respondent along with her elder brother had gone to Ranchi on 17.09.2012 on her own voluntarily. He admitted for coming to Ranchi time to time on various occasions, for example, Durga Puja, Chatth and Winter Vacation but could not remember the date. He alleged that his in-law members had confined and assaulted him by Lathi and Danda. He also alleged that the respondent had not allowed her to talk with his child and he was not allowed to meet his child even in the school.
He further claimed that he was not informed for taking the child to Vellore and concealment of illness of his child was done. However, his child is being maintained due to the amount given by him.
He also claimed to have learnt from reliable source that respondent has married with one Sanjeev Kumar @ Sonu but he cannot tell the name of reliable source. He also claimed to have seen the respondent with Sonu and had seen them on 16th December and also learnt that Sonu is working as M.R and both Sonu and respondent are living in Bokaro like husband and wife and one Birendra Singh is landlord of the said house, which is situated in Sector-12 and 4. He admitted for instituting a case against his wife at Patna.
1417. Thus, from scrutinizing the evidence of P.W-1-the appellant, it is clear that he is the father of the child and he has admitted his relationship with the child who was born on 25.03.2011 at Ranchi. However, he has raised serious allegation on the character of his wife-respondent and has claimed that his wife is living with one Sanjeev Kumar @ Sonu as a husband and wife in a rented house at Bokaro and also alleged that his wife used to keep his child alone with his Nana (i.e. the father of the respondent) and used to live with said Sanjeev Kumar @ Sonu for 15 days along in a month. The evidence of P.W-1 will be considered again after the evidence of other witnesses.
18. P.W-2 is Sharat Pandey, who has stated during his evidence, filed on affidavit, stating therein almost the same facts as stated by P.W-1 and stated that due to marital wedlock of both the sides, a child Jyotir Aditya Pandey @ Yug Pandey was born on 25.03.2011. However, during the period of pregnancy the respondent was not happy and had shown no interest at the arrival of the child. After giving birth to Jyotir Aditya Pandey she remained in the house of the appellant for one and half year at Patna and during the said period the child was treated medically and was administered vaccinations and development of the child was proper. He further stated that appellant is giving Rs.20,000/- per month regularly to the respondent in the light of the order passed in Maintenance Case No.179 of 2013 and even the appellant got treated his child on 24.03.2013 with Dr. Amit Mohan and was also admitted to Santivita Hospital on 09.04.2014 at Ranchi and he borne all the expenses of the child at Santivita Hospital as per instruction of the appellant. However, he learnt from the appellant that the respondent is living with her childhood friend Sanjeev Kumar @ Sonu as a husband and wife in a rented 15 house at Bokaro and Dhanbad and during this period the child was left with his old aged Nana for his development and due to which the nourishment of the child is not proper and even his health and education is not proper. The appellant got admitted his child for the first time in North Point School at Doranda and entire expenses were done by the appellant and he has proved the Admission Receipt of North Point School as Exhibit-3, hence the custody of the child be given to the appellant for the proper education, health and all-round development of the child.
19. During cross-examination, P.W-2 stated that they are three brothers and he is the eldest and thereafter his brother is Rabindra Pandey and Chanchal Pandey is the youngest brother and he is working in United Nation Development Program which is an organization of United States of America and his monthly salary is around One Lakh which is being paid by USA. He has two daughters aged around 19 years and 14 years respectively and he is maintaining them. Presently he is living in Ranchi at Kaushal Apartment in Lalpur and he is paying rent of Rs.8,000/- per month and he had left Patna in the year 2007 itself. However, he had knowledge of marital life of the appellant and the respondent during the period 2010 to 2018 and he has not talk with the respondent Rani since 2014 and he had not gone to the Maike of Rani i.e. the respondent after 2012 and even he had not gone to the house of the father of the respondent (i.e. Doranda) since 2012 and could not say the boundary of the parental home of the respondent. His brother has taken suggestion from him for instituting this case.
He learnt about the marriage of Rani (i.e. the respondent) with Sanjeev Kumar @ Sonu through his brother (i.e. the appellant) which he had disclosed 1 ½ to 2 years ago but he had not investigated in this matter. He had also not given copy of 16 receipt of North Point School to the respondent. He had not even visited Manas Nursing Home on 25.03.2011. He had not taken the respondent Rani or his Nephew before any doctor. However, he has no paper to show demand of Rs.10,000/- given by him to the appellant for the treatment of his Nephew by Dr. Niraj or by Dr. Amit Mohan. He had seen the paper of pregnancy of Rani i.e. the respondent and admitted that the respondent Rani was normal and she conceived pregnancy after 26.06.2010. He has not been on talking terms with the Nana of the child for last five years. He is aware of institution of dowry torture case instituted by the respondent Rani against his mother, mousi and brother and all of them have been granted anticipatory bail.
20. Thus, from scrutinizing the evidence of P.W-2, it is evident that he is a hearsay witness although he is own brother of the appellant. But, he is living separately from his brother in Ranchi along with two daughters since the year 2007 and he is doing job in Ranchi. His evidence on the point of character of the respondent is also hearsay and no reliance can be made upon them. Thus, P.W-2 is a formal witness.
21. P.W-3 is Arun Kumr Tiwari, who is Mama of the appellant and has also filed evidence on affidavit, stating therein that marriage between the appellant and the respondent was solemnized in Ranchi on 23.06.2010 and thereafter the appellant had hoisted reception on 26.06.2010 at Patna on arrival of the newly wedded wife. Thereafter on 25.03.2011 the respondent had given birth to a child which was celebrated by his entire family members by hoisting a massive party and the child was blessed by one and all. However, the respondent was not happy at the time of pregnancy and she used to say that she does not want the child at this early stage and she was consoled by her father in-law and mother in-law.
17The appellant had borne all the expenses of the birth of the child. He has filed five photographs of the child marked as Exhibit-1 to ¼ respectively and stated that the child was developing properly in the house of the appellant. However, in September, 2012, the respondent, without the consent of the appellant called her brother and came to Ranchi against the wishes of the appellant. However, the appellant used to visit at Ranchi, the respondent and his child time to time and used to pay the amount for their treatment. The appellant has paid more than Rs.Seven Lakh to the respondent. However, the respondent is expending the said amount on herself for her enjoyment instead of looking after the child.
He also stated to have learnt from the appellant that the respondent is living with her childhood friend Sanjeev Kumar @ Sonu, Doranda, Ranchi who is M.R by profession and the respondent is living with him as husband and wife at Bokaro and Dhanbad etc. and they used to leave the child of the appellant with his old aged Nana and due to which the nourishment of the child is not proper. The respondent is not interested in the welfare of the child whereas the appellant is an educated person and there are several schools near his house and there is facility of treatment near the house of the appellant at Patna and hence custody of the child may be given to the appellant.
22. However, during cross-examination, he stated about marriage of both the sides and for attending the said marriage and the reception on 26.06.2010. He learnt from his sister Madhuri Lata, the mother of the appellant that the respondent had stated for enjoying the life and was reluctant to give birth to the child. He had not taken the respondent and the child for treatment before any doctor. He admitted that cesarean operation of the respondent was not done before him. He had not seen the treatment of the child 18 Yug Pandey at Ranchi but he had seen the treatment of the child at Patna. The child used to play with him and was healthy at that time. He could not say the date of photography of the child and the name of the photographer. He admitted for not being aware that Sonu and he learnt his name form the appellant. He had never taken the child to the school.
23. Thus, from scrutinizing the evident of P.W-3, it is evident that he is Mama of the appellant and he has supported the case of the appellant but he is a formal witness and an interested and hearsay witness.
24. P.W-4 is Paras Kumar, who is the student of the appellant and has filed his evidence on affidavit, stating therein the same facts as stated by P.W-2 and P.W-3 and the same are not being repeated here.
However, he also stated further that the child has become prey of Malnutrition and the child was admitted to Santivita Hospital, Ranchi on 08.04.2014 and was discharged on 11.04.2014 and has proved the discharge summary of Santivita Hospital as Exhibit-4 (with objection). He also stated that the appellant had taken LIC Policy "Komal Jivan" in the name of his son Jyotir Aditya Pandey in the year 2013 and is paying premium of only Rs.18,000/- per annum. He has proved the premium receipt of LIC marked as Exhibit-5 (with objection). He also learnt through the appellant that the respondent is living with her childhood friend Sanjeev Kumar @ Sonu who is M.R by profession as a husband and wife at Bokaro and Dhanbad in a rented house and they used to leave the child with Nana. He also stated that due to improper nourishment the child Jyotir Aditya Pandey is not able to move UKG class even after attaining the age of eight (08) years, hence the custody of the child may be given to the appellant.
1925. During cross-examination, he stated that he is still reading and teaching and is also doing P. hd from Veer Kuwar Singh Ara College in Economics. He is a Graduate from Patna University and he is student of the appellant-Chanchal Kumar and the appellant is used to help in the study of poor child. He had attended the marriage of the parties on 23.06.2010 on the oral invitation of the appellant. He used to visit the appellant for 8-10 days in the month for teaching but he cannot say the date and day. He admitted in para 31 that he does not remember the date of birth of the child. He also stated that he used to meet with the respondent-Rani Pandey while he came for reading but cannot say the day and date of meeting with the respondent. He had seen the prescription of the Dr. Anita Narayan, Prabha Sinha, Kankerbagh. He further stated that the father of the appellant had died in May, 2012 at Ford Hospital at Patna and he was also present at that time. He claimed that entire expenses of „Cesarean Operation‟ were borne by the appellant and the operation was done by Dr. Prabha Sinha.
Thus, it is evident that P.W-4 is the formal witness and he is the student of the appellant and as such the allegation of the character of the Respondent is hearsay in nature and hence his evidence cannot be relied upon.
26. P.W-5 is Dr. Akhilesh Kumar Choudhary, who has filed evidence on affidavit stating therein that he had retired from the post of Director, Health Services, Jharkhand Government. He further stated that from perusal of Exhibit-2, it is clear that Yug Pandey is suffering from Malnutrition and for which he was admitted to Santivita Hospital, Ranchi and the doctor had prescribed his diet in Exhibit-2 so that child may overcome the Malnutrition. He further stated that from perusal of Exhibit-5, it would appear that the child Jyotir Aditya Pandey had been seen by 20 Dr. Khalid Ahmad Fashee who had found infection in the Ear of the child which is a general disease and the child can be cured by following the instruction of the Physician.
27. During cross-examination, he stated that he is in Surgery and had retired from the post of Director in the year, 2017 and was posted as Civil Surgeon, Ranchi. He has taken basic training of Pediatric after doing MBBS but he has got no specialization. Exhibit-2 is the prescription of Dr. Amit Mohan of Santivita Hospital. He is not aware of the name of the child and the mother of the child but aware of name of the appellant Chanchal Pandey and he is acquainted with the elder brother of the appellant. He had never treated the child of the appellant. He has given his opinion on the basis of report of Dr. Amit Mohan. He had also seen the prescription of Dr. Khalid Ahmad Fashee. However, he had not talk with Dr. Amit Mohan and Dr. Khalid with regard to the child. He was cross-examined on several aspects on Exhibit-2 and Exhibit-5 respectively but the same are not relevant.
Thus, P.W-5 is the doctor and is a formal witness but he has tried to show concern with the Malnutrition of the child but his evidence is not relevant as he had never treated the child and had given his opinion merely on the basis of prescription and Diet Chart marked as Exhibit-2 and Exhibit-5 respectively.
28. So far as documentary evidence is concerned, Exhibit-1 is the scanned copy of prescription of Dr. Sunil Kumar, Kids Care, Kankerbagh, Patna dated 25.03.2011 showing birth of child to Smt. Rani Pandey.
Exhibit-1/1 is certificate dated 05.06.2011 issued by Dr. Niraj Sinha, Tripolia Hospital, Patna showing treatment of child/baby of two months old.
21Exhibit-1/2 dated 12.07.2011 and Exhibit-1/3 (date not legible) are the prescriptions of Ispat Hospital, Mecon, Ranchi.
Exhibit-1/4 is the receipt of medicine issued by the shop dated 13.07.2011.
Exhibit-1/5 is the prescription of the child Jyotir Aditya Pandey @ Yug dated 23.07.2011 issued by Dr. Ajay Ghosh, Lalpur, Ranchi.
Exhibit-1/6 is the Pathological Test Report dated 26.07.2011. Exhibit-1/7 is the prescription of Manas Nursing Home, Rajendra Nagar, Patna.
Exhibit-1/8 and Exhibit-1/9 are the prescriptions dated 27.12.2011 and 22.03.2012 issued by Dr. Niraj Sinha, Patna.
Exhibit-1/10, Exhibit-1/12 and Exhibit-1/14 are the Pathological Report issued by Dr. Mohan Singh Pathological Laboratory dated 26.03.2012, 24.04.2012 and 31.08.2012 respectively.
Exhibit-1/11 is USG Report dated 30.03.2012 of child Yug Pandey issued by Mishra Imaging and Research Centre, Patna.
Exhibit-1/13 is the prescription issued by Dr. Avinash Kumar Sahay, Patna dated 25.04.2012 of child Yug Pandey.
Exhibit-2 and Exhibit-2/1 are the invoice bills of Medicines and Cash Settlement Receipt of child Master Yug Pandey issued by Santivita Hospital, Ranchi.
Exhibit-3 is the receipt of North Point Nursery School in the name of Jyotir Aditya Pandey for Pre-Nur-B. Exhibit-4 to Exhibit-4/4 respectively are the scanned copy of photographs of the child Yug Pandey.
Exhibit-5 is the photo copy of Discharge Summary of the child Yug Pandey issued by Dr. Amit Mohan, Ranchi.
22Exhibit-6 is photo copy of Premium Receipt of LIC Policy of Jyotir Aditya Pandey.
Exhibit-7 is the photo copy of the certified copy of the order dated 10.04.2014 passed in A.B.A No.4835 of 2014 by the High Court of Jharkhand, Ranchi granting anticipatory bail to the petitioner.
Exhibit-8 is the photo copy of certified copy of deposition of the witness-Sushil Kumar Singh in Maintenance Alteration Case No.13 of 2017 on 06.09.2018.
Exhibit-9 to Exhibit-9/3 respectively are the Colour Photographs of the child and both the parties i.e. the appellant and the respondent.
29. So far as the evidence of respondent is concerned, R-W-1 is Rani Kumari, who is the wife of the appellant and has filed her evidence on an affidavit stating therein that her marriage was solemnized with the appellant-Dr. Chanchal Kumar Pandey on 23.06.2010 as per the Hindu Customs and after one month she became pregnant in July, 2010 and she has given birth to her child Jyotir Aditya Pandey @ Yug on 25.03.2011. However, she never remained sorrow and disturbed during the period of her pregnancy and hence it is wrong on the part of the appellant to contend that she had not been in favour of conceiving pregnancy and wanted to give birth to the child after two years.
She has denied the assertion of the appellant that she wanted to terminate her pregnancy, rather the real fact is that she wanted to give birth to the child just after the marriage. She also refuted the charges of the plaintiff-appellant that she was negligent during pregnancy and was avoiding to meet with the doctors rather she has visited before the doctor time to time for her general check-up and she remained in full happiness waiting for arrival of the child, 23 rather the family members of the appellant wanted to put pressure upon her and they never took her before the doctor.
She stated that her mother-in-law used to make ridiculous words upon her for taking unnecessary injection and for going to doctor with the shining colourful cloth. She had gone to the clinic of Manas Nursing Home situated at Kankerbagh, Patna and got treated with Dr. Smt. Prabha Sinha nit her husband wanted to avoid for treating her treatment. She used to take all the necessary Tetnus injection and all the medicines and nutritious diet which were required at the time of pregnancy but the same were not made available to her due to which her son was far short of physical and mental development and was having less weight in comparison to other children of his age. Thereafter her father Ramnath Dubey managed her medical treatment at Ranchi for the child Yug. She has produced the prescription of Christian Medical Hospital, Vellore issued by Dr. Gautam Arunachal which was marked as Exhibit- B to B/15 respectively. She further produced the prescription of Dr. Prabha Sinha, Patna of dated 04.04.2011 and prior to this all documents were kept by the appellant himself and he had not produced the same before the learned Court below although she had conceived in July, 2010. She was given half of the food of the general diet and she was not provided with the nutritious food articles at the time of her pregnancy and her mother-in-law used to tell her to take only one and half Roti for her hunger. Even one day while she was preparing Roti then her Mousi Sas-Archana Sarswati took flour sample from her hand and ousted her from the kitchen. Her Mousi Sas-Archana Sarswati is a widow and passing time in her matrimonial home and she used to incite her mother in-law for giving physical pain to the child in her womb. Even her father in-law Vishwanath Pandey, her husband-
24appellant had not taken care of her diet and she was not given proper respect in her matrimonial home and she used to do all household works and no person was kept. Her in-law members are superstitious and they used to rely on „Ojha‟, „Guni‟ instead of the Surgeon or the Doctor. In the meantime, her father in-law died on 02.05.2012 while she was in her matrimonial home and they put blame of his death upon her although her father in-law had died naturally at the age of around 85 years. Her father in-law had inserted Pace Maker in the year 2011 and he had never gone before the doctor nor he allowed the child Yug Pandey to get treated by the doctor rather they asserted her treatment by „Ojha‟. Even she was humiliated and tortured in the month of May, 2012 before Ojha by describing her Pretin, Murderer, Characterless and Bad Woman etc.
30. She further stated that on one day while she was reading the article of newspaper that the wife has got half share in the income of her husband then it was heard by her mother in-law and she was assaulted mercilessly unnecessarily. Ultimately, she was compelled to call her elder brother-Dina Nath Dubey at Patna and she went to Ranchi on 17.09.2012 and since then she along with her child and her father and brother passing the life. She had instituted one Mahila P.S. Case No.05 of 2013 G.R. No.4706 of 2013 on 30.07.2013 by filing a complaint petition and after receipt of the charge sheet, the case is pending in the Court of Judicial Magistrate, Ist Class (A. Gautam). She further stated that even the appellant had instituted one Doranda P.S. Case No.167 of 2013 against her brother for false reasons.
She further stated that she had filed a case under Section 125 Cr.P.C bearing Case No.179 of 2013 and in the said case vide order dated 29.08.2015 direction was passed to the appellant to 25 pay Rs.15,000/- per month to the respondent and Rs.5,000/ per month to the child total Rs.20,000/- per month to the respondent- wife and her child Jyotir Aditya Pandey. She has instituted Case No. MAC 01/2018 under Section 127 Cr.P.C. for her maintenance as well as maintenance of her son and for his education and health. Her child was completely under-developed physically and mentally and on account of the fact that neither she was provided sufficient food nor medical treatment during the period of pregnancy. She denied the charges of the appellant for leaving her child Yug Pandey with Dr. Ramnath Dubey.
She has shown ignorance completely regarding Sanjiv Kumar @ Sonu and further stated that said person never remained at her parental home and she had not gone to Bokaro and Dhanbad nor she stayed in the house of any other person. She is still married wife of the appellant and she had not passed the days with any outside person by means of extramarital relation. She had gone to Maharaja College, Ara with her Fufera Brother-Ajit Kumar Upadhyay for producing the order dated 29.08.2015 before the Court passed by the Family Court. She neither stayed in hotel nor she had gone in any program with Sonu. She has neither established extramarital relationship with Sonu nor passing life as a lady of easy virtue. She is fully alert with regard to the maintenance, nutrition, medical treatment and education of her child. She wanted to pass her life as natural guardian of her child and child does not want to go in guardianship of his father. She denied the charges for going with the Sonu at quarter situated in Sector-18 in presence of Sonu nor she has gone to the residence of B.N. Tiwari nor to the residence of Dr. Birendra Singh.
She admitted that there are several schools near her matrimonial home but these facilities are useless if proper 26 education is not meet to her child Yug Pandey. Her child Yug Pandey is fully secured and his future is secured in her hands and also hands of Ramnath Dubey. There is facility in her parental home for the education of her child and the teacher teaches him and she is taking his full health care. She had not prohibited her child Yug Pandey for meeting with anyone. She was compelled to take legal action against the appellant as she was humiliated by the words uncommon to the ladies. She was compelled to leave her matrimonial home although she had not wanted to leave the house of her husband voluntarily. She is fully devoted to her child and providing him nutritious food for his physical and mental development.
31. During her cross-examination, she stated that she has given birth to child in Manas Nursing Home, Kankerbagh, Patna by cesarean operation and at the time of birth the child was weighing around 2.6 Kg and she was suffering from Thyroid since Class- VIII but she is not aware as to whether her in-law members are aware or not. Presently she is doing B.Ed by regular course and had taken admission at M.R.D Teachers Training College, Ormanjhi, Ranchi in the year 2017 and she will be passing final examination by the next year September i.e. 2018. She was directly admitted to the College.
She lived in her matrimonial home till the birth of her child. She has not done any work for fetching money in her matrimonial home during her pregnancy. She used to visit Manas Nursing Home for regular check-up with her husband regularly. She was disclosed about her Thyroid disease to her in-law members. She was admitted to Manas Nursing Home on 24.03.2011 and was discharged after one week. She remained in unconscious for three days and learnt about the child on 27.03.2011 on regaining 27 consciousness. She was handed over child and she used to look after her.
She has passed B. Ed and she is planning to do LL.B Course. Her father is not a Sanyashi but he bears „Gerua Clothes‟ and prays the rosary (Mala Japna). She is following the advice of Dr. Arunachalam for nutrition of his child and had filed all documents in the Court but she has not filed any paper of purchasing of Neutrilif. Her child remained in Santivita Hospital for 6-7 days and she was advised to give Neutrilif to her child by Dr. Arnuchalam. The child has got genetics problem but she is not aware of the genetic issue. She admitted the child, she born her child at Patna but her certificate was not prepared in Patna rather it was made at Ranchi and his date of birth has been changed for securing his admission.
32. Prior to institution of this case, her husband has filed a case of divorce and she had gone to JHALSA on receipt of notice and she is getting Rs.20,000/- per month in maintenance case. When her husband filed case for setting aside the maintenance order and guardianship case then she filed the case for enhancement of maintenance. Her father in-law died at the age of 85 years. She arrived at Ranchi on 17.09.2012 with her brother Dina Nath Dubey. She read in the newspaper in July-August, 2012 that wife has got half share of income of her husband. Her father is aged about 70 years. She admitted that her child was admitted at North Point School by her husband where he read for only 5-6 months. She had taken advice from Dr. Amit Mohan, who advised her for comprehensive check-up through Camera but she could not follow that advice. She had not any papers regarding medicines for child. Presently her child Yug Pandey is in Prep but his performance is not very good.
2833. On being shown photograph to the witness, the same was marked as Exhibit-4 which is the photograph of „Sataisha Ritual‟. The photograph of „Anaprasan‟ marked as Exhibit-4/1 and Exhibit- 4/2 respectively. She further proved the photo of first birth of child marked as Exhibit-4/3.
The appointment of Vellore was fixed by online method and she had paid all money in cash. She was preparing food for her father and her child and other members are living separately.
She denied the suggestion for not remaining happy during her pregnancy and for avoiding medical check-up with doctor deliberately and for not disclosing the disease of Thyroid to her in- law members and due to which her child has developed Malnutrition.
She denied the suggestion for living with Sanjiv Kumar @ Sonu like husband and wife at different places at Bokaro and Dhanbad etc. She denied that Sonu is her childhood friend. She denied the suggestion that she alongwith Sonu had gone to the Maharaja College with Sonu. She denied the suggestion for incurring the amount of maintenance for her extravagant and not for treating of child. She denied the suggestion for not living with her father.
34. Thus, from scrutinizing the evidence of R.W-1-Rani Kumari (i.e. the respondent) it appears that she is the wife of the appellant and she has refuted the allegation of living separately from her husband rather she has emphasized that she has been compelled to live separately due to behaviour of her husband and other in-law members. She has denied the charges of question of her character for living with Sanjiv Kumar @ Sonu at different place at Bokaro and Dhanbad like husband and wife. However, she has shown concern with development of her child.
2935. R.W-2-Ramnath Dubey, who is the father of the respondent and has filed his evidence on affidavit stating therein that the marriage between he appellant and the respondent was solemnized on 23.06.2010 at Ranchi and his daughter has given birth to a child Jyotir Aditya Pandy @ Yug Pandey at Patna on 25.03.2011. His daughter used to live in her matrimonial home at Patna at the time of her pregnancy and she was very happy and excited of her first pregnancy but her in-law members particularly, mother in-law Madhulata Pandey and Mousi Sas-Archana Sarswati had not taken proper care during the pregnancy of the daughter and proper fooding and medical facilities were not given, due to which her child remained unhealthy and finally on 17.09.2012 his daughter along with her elder brother Dinanath Dubey arrived at Ranchi. Her in-law members mother in-law and Mousi Sas used to rely upon 'Ojha-Guni' and one superstitious people and due to not giving proper food and medical facilities, the child Yug Pandey remained physically weak. Even his daughter was tortured for dowry and he tried his best for providing proper food and medical facilities to the child of his daughter and even went to Vellore where he was treated by Dr. Gautam Arunachal. He has proved the computerized certificate dated 10.08.2017 issued by doctor, which is marked as Exhibit-A. He further proved the bills of Medical College dated 18.08.2016, 26.08.2016, Appointment Slip dated 18.08.2016, 21.08.2016, 22.08.2016, 24.08.2016, 25.08.2016, 29.08.2016, 31.10.2016, 21.10.2016, 18.08.2016, 22.08.2016 and 24.08.2016 of computerized receipt dated 19.08.2016 and 18.08.2016 which have been marked as Exhibit-B to B/15 respectively and Exhibit-C to C/2 respectively.
3036. He further stated that the child Yug Pandey along with his daughter and under her guardianship is studying in a good school and presently he is studying in Tender Heart School, Tupudana. He has produced the Admission Receipt dated 19.01.2018 and Fee Receipt showing fee of Rs.25,100/- and Bus Receipt dated 19.01.2018 showing fare of Rs.940/- and receipt dated 27.04.2018 of Rs.890/- and Tuition Fee Receipt dated 03.07.2018 and 24.07.2018 of Rs.2400/- and 2400 respectively have been marked as Exhibit-D to D/16 respectively. He has shown complete ignorance about Sanjeev Kumar @ Sonu and stated that his daughter never went anywhere after leaving her child Yug Pandey and her daughter is still married wife of the appellant and his daughter had never gone to Bokaro, Dhanbad, Patna and Ara with said so-called person. His daughter never stated that these are days of celebrating happiness and had never denied child.
37. He further stated that his daughter along with her Fufera brother and Bhanja had gone to Maharaja College, Ara for showing order dated 29.08.2015 passed in Maintenance Case No.179 of 2013 and had meet with the Principal of the said College and submitted a copy of the said order there. His daughter is working like a guardian of her child and she is busy for development of physical and mental development of her child and he is also ready to meet the necessary expenses for development of the child of his daughter.
He again denied the relationship of his daughter along with Sanjeev Kumar @ Sonu for establishing physical relationship in Bokaro and Dhanbad. He admitted that there are very good schools in Patna City but the love of the mother is the best requirement for development of the child and the child is successfully completing his educational work with his mother in his house.
3138. During cross-examination, he stated that he is by profession „Pandit' and doing „Jajmani' and used to see horoscope. However, he is not a „Saint' but he believes in religion and in the God. However, he is not good in English and he can read English to some extent only. He had joined job on Group-D post and retired as an „Auditor' and was granted time bound promotion for becoming Auditor from Group-D job. His Nati was born at Patna Hospital and Sataisha Ritual was performed. His Nati remained there till 2012 and he used to move here and there. However, since 9th month of the year, 2012 i.e. September, 2012 his Nati is living in his house. His daughter has filed 1st case at Mahila P.S in December, 2012 which was numbered as 05/2013. Thereafter his son in-law filed a case for divorce and he received the notice of divorce in June, 2013 and his daughter appeared in Patna Court. He asserted that his Nati was not treated on 9th month of year, 2012 at Patna rather he was treated at Ranchi. He is not aware of Thyroid disease of his daughter Rani Kumari and he is not aware whether she has taken medicine of Thyroid during her pregnancy.
39. On being shown documents marked as Exhibit-B/15 to read something, the witness stated that he cannot read and he is not aware of the document but it contains accounting of money. The other document also relates to money.
On being shown to documents of doctor at Vellore regarding medicines prescribed to Yug Pandey, the witness could not tell anything. He is also not aware of the name of nutritious food taken by his Nati. His Nati is taking nutritious meal on the advice of his doctor.
On being shown Exhibit-C the witness states that it is Test Report of child and all the test are correct. The witness is completely illiterate and he could not properly explain Exhibit-
32B/15, Exhibit-C and he was not able to read anything and has given answer merely on presumption and receipt of money.
40. Firstly, the child Yug Pandey was admitted at North Point School in Doranda, Ranchi by the appellant-Chanchal Pandey where the child read for six months. However, when the health of child deteriorated in Ranchi then the respondent got him admitted at Santivita Hospital in Ranchi and all the expenses were borne by the appellant-Chanchal Pandey but neither the appellant Chanchal Pandey nor his family members came to hospital to see the child. However, he is not aware of pay of deposit of bill in Hospital. He denied the suggestion that Chanchal Pandey i.e. the appellant was looking after the child at Santivita Hospital. He admitted that his food is prepared by daughter Rani and sometime it is prepared by his daughter in-law. His daughter Rani Kumari had not given exam of B.Ed. However, Rani whenever had gone to the college then the child has remained with him.
He has surprisingly stated that his daughter is not required to go to school time and again and she is getting question and answer in the house.
He admitted that child-Yug Pandey was got discharged from Santivita Hospital on promising with the doctor to look after the child properly. He denied the suggestion that his daughter Rani Kumari does not want to go to doctor during pregnancy. His daughter Rani has not concealed her ailment of Thyroid deliberately.
He admitted that the appellant-Chanchal Pandey is giving Rs.20,000/- towards the maintenance amount. He denied the suggestion that Rani Kumari is making expenses of the said amount in extravagant manner and not on the welfare of the child causing adverse effect on the child.
33He denied the suggestion that his daughter Rani Kumari used to go to different places with her childhood friend Sanjeev Kumar @ Sonu and they had stayed at Bokaro and Dhanbad like the husband and wife and used to leave her child alone. He again denied that Rani Kumari along with Sanjeev Kumar @ Sonu had gone to Maharaja College with the order of the maintenance case and who were identified by the staff of the College. He is not aware of the schooling of child Yug Pandey and he has not filed any school result of the child and the child is aged about 8-9 years and studying in Prep after passing the Nursery. He admitted that money is being received regularly. He admitted that the advice of Dr. Gautam Arunachal was properly followed.
On being shown Exhibit-A, he could not read the name of Dr. Arunachal. He also could not say the contents of Exhibit-A as it was written in English. He asserted that no nutritious meal was prescribed in writing in Vellore and it was said orally by the doctor. He denied the suggestion for not maintaining the welfare of the child with his daughter.
41. Thus, from scrutinizing the evidence of R.W-2-Ramnath Dubey, it is evident that he is father of the respondent and he is an illiterate person. Although he was promoted to the post of Auditor from Group-D post which is a Class-IV post but this Court is not concern with the service and promotion. This Court finds that he is not in a position to read English and R.W-2-Ramnath Dubey himself admitted that he has passed only Class-VII and he is doing Jagmani work (i.e. priestly work) and hence he is not in a position to look after the child.
42. There is grave allegation of unchastity of the respondent and specific questions were put to the witness i.e. R.W-2 that his daughter-Rani Kumari had gone to Arrah with her friend Sanjeev 34 Kumar @ Sonu to show the order passed in maintenance case. However, even P.W-4 namely Paras Kumar had identified Rani Kumari, as it has come in his evidence.
43. P.W-2 to P.W-4 had not seen Sanjeev Kumar alias Sonu (Medical Representative) with the respondent. Thus, they are hearsay witnesses.
44. The question of living Rani Kumari i.e. the Respondent with Sanjeev Kumar @ Sonu like husband and wife in different places including Bokaro and Ranchi is not conclusively proved, as there is neither documentary evidence nor any photograph and it is difficult to prove the adultery of the wife in a proceeding under Section 7 of the Guardians and Wards Act as no such evidence has been led, although this is a serious issue but this has to be looked into the circumstances.
45. It is admitted by R.W-2 that the appellant-Chanchal Kumar Pandey had borne the cost of Santivita Hospital at Ranchi in the year 2012 and he was fully looking after the child in the Hospital. However, the respondent side got the child discharged from the hospital by promising with the doctor that they will take proper care of the child in the house.
46. It is further evident that even the brother of the respondent Dina Nath Dubey has not been examined by the respondent.
47. It is also evident from the evidence of R.W-2 that his son is living separately in the same house and it is his daughter-Rani Kumari (i.e. the respondent) who prepares food for him.
48. The plea of the learned counsel for the appellant that the judgment and decree has been passed in respect of the child born in the year 2013 and not in 2011 and hence the child Jyotir Aditya Pandey @ Yug Pandey is not the same child, is misconceived and devoid of merit.
3549. The appellant cannot be allowed to amend his pleading by way of argument by introducing the story of another child „Yug Pandey.‟
50. The instant appeal has been preferred for challenging the judgment dated 16.07.2021 passed by the learned Principal Judge, Family Court, Ranchi which reveals that the appellant was well aware of the actual age of the child.
51. The petitioner cannot take any new plea before this Court without making any amendment in the plaint. It is the specific case of the plaintiff-appellant himself in the plaint that his child- Jyotir Aditya Pandey @ Yug Pandey was born on 25.03.2011 at Manas Nursing Home at Patna and therefore, the contention of the learned counsel for the appellant that the child born in the year 2013 is different, has got no relevancy and as such this plea is rejected.
52. The appellant cannot be permitted to resile from his pleading.
53. The suit was filed in the year 2017 while maintenance case was filed in the year 2013 and after passing of order of maintenance by the learned Principal Judge, Family Court, Ranchi, this instant case has been filed under Guardian and Wards Act for the custody of the child.
54. If the petitioner is not sure of his paternity then he ought to have withdrawn the suit filed before learned Court below or might not have filed this appeal, but this First Appeal cannot be permitted for determining the chastity of the women (i.e. the respondent).
55. Mere preparation of birth certificate of the child by the respondent would not come in the way of chastity of the wife.
56. The wife had got prepared the Birth Certificate by knowing the age of the child only to secure the future and welfare of the child in the coming year.
3657. Thus, the judgment dated 16.07.2021 passed by learned Principal Judge, Family Court, Ranchi in Original Suit no.608 of 2017 (CIN 688/JHR No.5000905/2017) does not require any interference and accordingly, this First Appeal No.45 of 2021 is hereby dismissed.
(Ratnaker Bhengra, J.) (Sanjay Prasad, J.) Saket/-
NAFR 37