Jharkhand High Court
Sanjay Kumar vs Suman Kumari on 21 April, 2022
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Appellate Jurisdiction)
First Appeal No. 56 of 2020
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Sanjay Kumar, s/o late Bandhu Saw, r/o village-Palmaroua, PO &
PS-Tisri, District-Giridih, Jharkhand, presently residing at Flat
No.3-C Riddhi Siddhi apartment, PO-Bariatu, PS-Bariatu, District-
Ranchi, Jharkhand PIN 834009. ... Appellant/Plaintiff
Versus
1.Suman Kumari, w/o Sanjay Kumar;
2.Naresh Saw, s/o late Koshi Saw;
3.Rupesh Kumar, s/o Naresh Saw;
4.Dinesh Kumar, s/o Naresh Saw;
All are resident of Mirzaganj, PS-Jamua, PO-Mirzaganj
District-Giridih, Jharkhand, PIN 815315.
... Respondents/Defendants
(Heard on 21st February 2022 in the Court and on 24th
February 2022 through V.C)
PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant : In-person
For the Respondents : Mr. Prashant Kumar Rai, Advocate
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JUDGMENT
C.A.V. on 24th February 2022 Pronounced on 21st April 2022 Sanjay Kumar who was working as Assistant Professor at Rajendra Institute of Medical Sciences, Ranchi filed a petition under section 25 of the Guardians and Wards Act, 1890 for return of the minor children Dipanshu Darshan aged about 7 years and Shreya Kumari @ Suddhi @ Arohi aged about 2 years to his custody and guardianship. Original (Guardianship) Suit No.05 of 2016 was instituted on the aforesaid petition filed by him and the same was dismissed on contest but with liberty to him to take visitation rights according to law.
2. The marriage of the appellant with the respondent no.1 (in short, respondent) was solemnized on 29 th January 2007 at Mirzaganj within the district of Giridih and from the wedlock two 2 First Appeal No. 56 of 2020 children Dipanshu Darshan and Suddhi were born. In the petition under section 25 of the Guardians and Wards Act, 1890, the appellant averred that his minor children are in forceful custody of his wife and in-laws who are ill-treating the children. The mother of the appellant came in the witness box as PW1 to support the cause of her son who examined himself as PW2 in the trial. To support the respondent who was examined as DW3, her father and uncle tendered evidence in the Court and the minor son Dipanshu Darshan was examined as DW4.
3. The following issues were settled in the trial of Original (Guardianship) Suit No.05 of 2016:
1. Is the suit maintainable in its present form?
2. Has the plaintiff valid cause of action for the suit?
3. Is custody of minor son and daughter of petitioner proper in the custody of plaintiff?
4. Whether the plaintiff is entitled for the custody of the children?
5. Whether the plaintiff is entitled for the relief as claimed?
4. The appellant stated in his examination-in-chief that his wife stayed with him at Ranchi from the year 2007 to July 2009 and thereafter till the year 2012 at Delhi where he was working as a Senior Resident Doctor at AIIMS. After the marriage, he nurtured his wife and encouraged her to pursue higher education but due to her own attitude she could not complete M.A (History) course under Ranchi University where he had enrolled her. On his insistence, his wife took admission in M.A (English) under IGNOU but she again left the course midway. The appellant gave a narration of the incidents which according to him are sufficient to draw an inference that all along he was discharging his duty as husband, brother, brother-in-law and son-in-law but a discordant note was struck by his wife who created problems in the matrimony by filing false criminal cases against him. Being afraid of violent, abusive and dangerous behaviour of his wife, her 3 First Appeal No. 56 of 2020 brothers and parents he was compelled to lodge informatory petition and applications with CJM, Giridih, Superintendent of Police, Giridih and officer-in-charge, Bariatu PS, Ranchi. Under the aforesaid compelling circumstances, he was constrained to write a letter to his father-in-law which was later on misused and made basis for filing a criminal case against him. Still, he continued to send money to his wife for maintenance after she started living with her parents.
5. The respondent set up a case that her husband is so busy with his official duty that he cannot take care of the minor children, his mother is living in the village and he takes food in the hotel as there is no one in the house to cook food. In the cross- examination, the appellant denied that he was unable to pay maintenance and arrears of maintenance to the tune of Rs.2.5 Lakhs. He further denied that he never cared to meet his children who are living with the respondent since 12 th July 2014 and stated that he tried several times to bring back the children but he was not permitted to do so. As regards his official duty, he stated that he would leave for duty at 09:00 AM and come back home by 05:00 PM and sometimes he would have night duty for one or two hours. He denied the suggestion that he has drinking habits and would treat the children with cruelty while in intoxicating state and reiterated that his children are ready to live with him.
6. The respondent tendered evidence that after the marriage her husband started demand of dowry and ousted her from house after committing maarpit with her. A panchayati was convened in this regard but her husband did not mend his ways and, therefore, she was constrained to lodge a case at Tisri PS. To challenge the claim of the appellant for custody of the minor children, the respondent stated in her examination-in-chief that her husband did not take care of the children and never came to meet them. She further stated that the appellant is so busy in private practice that he has hardly any time to look after the children and, moreover, he is an addict who takes liquor everyday.
4 First Appeal No. 56 of 20207. As PW1, the mother of the appellant gave evidence in support of her son for claiming custody of the minor children. She stated in the cross-examination that most of the times she would stay with her younger son at Burnpur (West Bengal) and occasionally would go to village and also stay with her son at Ranchi. She further stated that the children are living with their mother quite comfortably but sometimes they would call her expressing their desire to come to her.
8. The father of the respondent who was examined as DW2 admitted in the cross-examination that his daughter is not employed anywhere. He further admitted that two of the dowry cases were compromised with the consent of both parties and that his son brought his daughter Suman Kumari to his place.
9. We have carefully seen the evidence tendered by the witnesses on both sides and for a better appreciation of the case would extract cross-examination of PW2, DW3 and DW4 who are the most material witnesses in the case.
Cross-examination of PW2 Sanjay Kumar -
English Translation:
31. There are three cases pending between my wife and me in Giridih including the present case and out of these one case is related to guardianship, other is dowry case and a case related to dissolution of marriage bearing No. 174/2016 is pending as well as a case related to dowry harassment are pending in Ranchi district.
32. Maintenance Case No. 232/2014 was filed for the maintenance of wife and children which has already been disposed of. In the said case, an order has been passed against me to pay Rs. 15,000/- per month to my wife and Rs. 5,000/- for each of the children for the maintenance.
33. It is not correct that I am not paying the maintenance amount to my wife and children as per the order passed in maintenance case.
34. It is incorrect that I am not paying the maintenance amount as per the order of the Court and maintenance amount of about 2.5 lakh rupees is due.
35. My son-Dipanshu is aged about 9 years and the daughter-
Arohi is aged about 4 years. Both children are presently residing with their mother.
36. My wife is living separately since 12 th July, 2014 and both the children reside with her. Says on his own that during this period he went to bring children on many occasion but they were not allowed to come with him.
37. It is incorrect to say that I have never gone to meet the children.
38. My son studies in Class-IV and I do not know in which class my daughter studies. My son is studying in Discovery Public 5 First Appeal No. 56 of 2020 School, Mirzaganj which is a Hindi Medium school, but I am unable to tell where he is studying since the last sixth months.
39. I am posted at RIMS, Ranchi. My duty hours start at 9:00 A.M. in the morning and ends at 5:00 P.M. and there is lunch break for an hour. Sometimes one or two hours duty is assigned to me at night.
40. I do not take food in the hotel rather it is prepared at home.
41. I have not solemnized second marriage.
42. I have not filed a case for restitution of conjugal right against my wife.
43. No panchayati was held with respect to allegation of harassment levelled by my wife. But a panchayati with respect to Bidai was convened. After the panchayati, I had brought my wife to my house. After the panchayati, I had gone to Delhi along with my wife because I work there.
44. I do not know whether my wife submitted an application against me with allegation of harassment in Delhi.
45. It is incorrect to say that I ousted my wife from the house after assaulting her and locked the door and a complaint in this regard was lodged at Safdarganj Police Station by my wife which I am intentionally concealing.
46. Both children are ready to live with me.
47. My mother does not always reside in the village.
48. It is incorrect to say that my children are not ready to live with me.
49. I had gone to school to deposit the school fee of my children but the School Principal refused to receive the school fee informing that the fee has already been paid by the maternal grandfather of the children. I cannot submit certificate to the effect of going to school.
50. I did not get a chance for the treatment of my children since the time my wife is living separately. States on his own that he received information about the fracture of hand of his daughter from some other person after 15 days. Thereafter, I tried to talk to her but could not talk to her.
51. It is incorrect to say that sometimes I take liquor.
52. It is incorrect to say that I take liquor and I come back home late at night after taking liquor and treated my children with cruelty many times.
53. My marriage has not been dissolved (with my wife).
54. It is incorrect to say that I have filed a false case.
Cross-examination of DW3 Suman Kumari -
English Translation:
14. I am living at my paternal home since 12 th July, 2014. In the meantime, I had gone to matrimonial house once on 07 th May, 2017.
15. I have no source of own income. My parents bear my expenses and I met my expenses from maintenance amount received pursuant to order passed by the Court.
16. The case of dowry harassment lodged at Giridih and another case lodged at Bariatu Police Station are still pending.
17. My husband is in government service. His salary is about Rs. 2 lakh.
18. I have not lodged any case regarding assault of my children by husband. No case was lodged against my husband for taking wine. No action has ever been taken against my husband for taking wine.
19. I would not like to send my children to live with my husband.
20. The dispute between me and my husband began just after six months of marriage in the year 2007.6 First Appeal No. 56 of 2020
21. A son was born after one and half years of marriage. Thereafter, a daughter was born on 17th January, 2014.
22. My both children live with me due to dispute with husband.
23. No case is lodged against my husband as regards his character and behaviour, except the one lodged by me.
24. My husband lives at Ranchi. There are good schools and education facilities in Ranchi.
25. It is not a matter of fact that children live with me so I have influence over them and therefore they do not want to go with their father.
26. It is not a matter of fact that I have no source of income and the plaintiff has a good source of income and therefore I am not capable to maintain my children.
Cross-examination of DW4 Dipanshu Darshan -
English Translation:
12. In the report card the name of my father is written as Naresh Saw and mother's name as Suman Kumari.
13. Today I have come to the Court with my maternal grandfather.
14. The age of my sister Shreya Kumari is 6 years.
15. There is better facility for education at Ranchi compared to Jamua.
16. I would like to study at Ranchi if my father keeps me at Ranchi for study provided my mother also accompanies me.
17. My father is a doctor at Government hospital RIMS, Ranchi.
18. I recognise my father.
19. I was 5 years old when my mother for the first time came to the house of my maternal grandmother. That was not the occasion of marriage of my maternal uncle (Mama).
20. I do not know with whom my mother came to Mirzaganj about 5 years back.
21. I do not know subject of this case.
22. I was not tutored what to speak in the Court.
23. My mother is not employed in any work. My maternal grandfather provides expenses for my education.
24. My mother tried that I should speak to my father.
25. On 17th January 2019 I met my father last time at Mirzaganj but outside the house of my maternal grandparents. Before that also whenever I met my father that was always outside the house of my maternal grandparents.
26. My father used to come to Mirzaganj to meet me and not to take me back with him. Whenever my father came to Mirzaganj my maternal grandfather did permit him to enter the house.
27. Till the time I was at Ranchi my mother used to take care of me and I was brought up well at Ranchi.
28. Today my maternal grandfather has brought me for my evidence.
29. This is not correct that I am tendering evidence as said by my maternal grandfather.
10. The Principal Judge, Family Court, Giridih referred to the provisions under sections 6, 7, 10 and 25 of the Guardians and Wards Act, 1890, section 13 of the Hindu Minority and Guardianship Act, 1956 and took note of the decision in "Mushaf Husain v. Mohd. Jawad" 1 and came to a conclusion that a heavy 1 1918 SCC Online Oudh JC 22 7 First Appeal No. 56 of 2020 duty is imposed upon the Court in appointing a guardian to keep in the forefront the central idea that welfare of the minor should be the main consideration in a suit for guardianship.
11. All issues were decided against the appellant primarily on the ground that the appellant is a busy man who cannot devote time for bringing up the minor children and removing them from custody of the mother would disturb their mental status. The Principal Judge, Family Court, Giridih has held as under:
"19. ........ From perusal of record, it appears that the minor ward namely Dipanshu Darshan himself examined as DW4 and at present, her age is about 10 years. The Court has observed that the witness minor Dipanshu Darshan himself is competent to understand the questions put before him and intelligently answer the questions. He himself stated that in para 3 of examination-in- chief that "PAPA, MAMMI SE LADAI KARTE THE AUR MAMMI KO GHAR SE NIKAL DETE THE ISLIY MAI NANIGHAR ME RAH RAHA HU". He further para 4 and 5 stated that "MERI MAA MERI PADHAI-LIKHAI EWAM PARWARISH KARTI HAI. PAPA AAKAR KABHI PADHAI-LIKHAI NAHI KARWAYE HAI. PAPA MUJHSE KABHI MILNE NAHI AATE HAI. PAPA SE BATCHIT BHI NAHI HOTI HAI". He also stated in para 7, 8 and 9 that "MERE PAPA RANCHI ME DOCTOR HAI. PAPA K PAS HAMARI DEKHBHAL K LIY SAMAY NAHI HAI. JIS SAMAY MAI RANCHI ME RAHTA THA, US SAMAY PAPA MERI DEKHBHAL NAHI KARTE THE. PAPA MUJHE PYAR- DULAR NAHI KARTE THE. PAPA KE SATH RAHNE KE DAURAN PAPA MARPIT KARTE THE". MAI PAPA KE SATH RAHNA NAHI CHAHUNGA. He further stated in para 16 of his cross-examination that "MERE PITA MUJHE RANCHI ME RAKHKAR PADHANA CHAHE TO MAI WAHA PADHANA CHAHUNGA, LEKIN MERI MAA BHI WAHA SATH ME JAYEGI TAB". This statement clearly indicates that he is very intelligent and also clearly indicates that the minor is old enough and he never gone with his father and prefers residing with her mother/Defendant no.-1. .............................
20. It is also pertinent to mention here that the plaintiff has filed a written argument on 18/11/2019, wherein he stated that he is competent and sound economic position and being a legal father of child. He further given the proposal of in his own writing that "I hereby give proposal as molding of relief that custody of both children, both being more than 5 year of age, should be given to me and visitation right should be given to mother of children. If mother (Suman) agrees to live in Ranchi along with her parents, I shall bear these expenses up to Rs.25,000/- per month. I shall live in separate house. Wife Suman Kumari along with her parents shall live in separate house. I shall not live with wife. Children will live with me, but they can go to their mother as and when required. But the defendant is not ready with this proposal and she clearly stated that if the plaintiff will keep her with him, then he will go to Ranchi along with their children, otherwise she is not ready to go to Ranchi".
The documentary evidences as X and X/1 (marked as identification) which are the xerox copy of marksheet and Ext-C which is progress report of Dipanshu Darshan, the minor son, produced by defendants itself reveals that both the minors are studying in Mirjaganj with their mother and in my opinion, transfer of custody will disturb their studies and irrupt their mental status.
On critical analysis of the material available on record, it is very much clear from the record that the plaintiff is a very busy 8 First Appeal No. 56 of 2020 person having no time for children and he clearly admitted that he is living alone and his duty hours is 9 am to 5 pm and he also serve his duty at night also, so it is very much difficult to take care of children.
..........................................................................................................
22. So, in context of the above judicial pronouncement and analysis of the evidence on record, it is very much clear that though the plaintiff has sound economic strength, but at the same time, his work schedule is not defined and both children are living since long with their mother and the Dipanshu Darshan who is age of 10 has clearly stated that he does not want to go with his father and want to live with his mother and if his mother will go there, then he is ready to go and daughter Arohi is a child of 4-5 age and she also requires the mother protection and her over all developments.
So in my view, in contest the custody cannot be transferred to the father as being a natural guardian, because it will impact the emotions, career and personality of the children, which is against the welfare of the children. ...."
12. Sanjay Kumar who is the father of the minor children Dipanshu Darshan and Suddhi has filed the present First Appeal under section 19(1) of the Family Courts Act, 1984 challenging the judgment dated 4th May 2020 passed in Original (Guardianship) Suit No.05 of 2016.
13. In "Jagdish Singh v. Madhuri Devi" 2 the Hon'ble Supreme Court observed that it is lawful for the High Court acting as the First Appellate Court to enter into not only questions of law but questions of fact as well and the appellate Court therefore can reappraise, reappreciate and review the entire evidence and can come to its own conclusion.
14. We would indicate that DW1 was called for cross- examination on 28th June 2018 but no one turned up on the side of the appellant and his evidence was closed. The non-examination of the witness takes different effect depending on the facts and circumstances in the case and the nature of dispute involved in the suit. The testimony of a witness whose evidence was not tested by cross-examination even where cross-examination by the other side has been declined would be a very weak piece of evidence and cannot be used to pass a judgment in favor of or against a party to the suit.
2 (2008) 10 SCC 497 9 First Appeal No. 56 of 2020
15. In "Chaturbhuj Pande & Ors. v. Collector, Raigarh" 3 the witnesses examined on behalf of one side were not effectively cross-examined and the other side did not adduce evidence in rebuttal. The Hon'ble Supreme Court has observed as under:
"6. ..... It is true that the witnesses examined on behalf of the appellants have not been effectively cross-examined. It is also true that the Collector had not adduced any evidence in rebuttal; but that does not mean that the court is bound to accept their evidence. The Judges are not computers. ... they are bound to call into aid their experience of life. As Judges of fact, it was open to the appellate Judges to test the evidence placed before them on the basis of probabilities."
16. The Principal Judge, Family Court, Giridih held that the appellant tortured and ousted his wife from the house and now she is compelled to reside at her parents' place and that he has no affection for his wife and children. We are constrained to observe that the aforesaid findings recorded by the Family Court Judge is not supported by the materials on record. Mere filing of criminal cases by the wife would not lead to an inference that the husband tortured the wife in connection to demand of dowry. The facts and other circumstances in the case such as submission of final form, any order of stay of further proceeding by the Superior Court etc. need to be considered. The statement of the respondent in her examination-in-chief that the appellant tortured and harassed her in connection to demand of dowry has to be seen in the context of the statements made by her in the cross-examination and other evidence on record. She filed criminal cases at Giridih in the year 2011, at Delhi in the year 2012 and at Ranchi in the year 2013 against the appellant and his family members alleging harassment and torture at their hands in connection to non-fulfillment of their demand of dowry. It has been brought on record that Tisri P.S Case No.38 of 2011 which was lodged on 12 th May 2011 under section 498A of the Indian Penal Code and section ¾ of the Dowry Prohibition Act was closed by filing final form on the ground of mistake of fact but the case proceeded on the protest petition filed by the respondent. Now in the Special Leave to Appeal (Crl.) No(s).7327 of 2021 the Hon'ble Supreme Court has vide order 3 AIR 1969 SC 255 10 First Appeal No. 56 of 2020 dated 4th October 2021 stayed the proceeding of Tisri P.S Case No.38 of 2011. The appellant would urge that a cross-case vide Bariatu P.S Case No.429 of 2013 was lodged by the respondent in counter to Bariatu P.S Case No.428 of 2013 which was lodged by the appellant against his brother-in-law Rupesh Kumar - the said case was subsequently withdrawn by the appellant. A quash petition has been filed by the appellant vide Cr.M.P No. 1938 of 2019 and the further proceedings in Bariatu PS Case No. 429 of 2013 has been stayed by this Court. It is stated that the appellant has been paying maintenance of Rs.25,000/- for maintenance of the wife and children in compliance of the order dated 29 th November 2016 passed in Maintenance Case No.232 of 2014.
17. Besides the above, the evidence of the minor son who was examined by the respondent as DW4 does not seem to support her. A part of the evidence of DW4 was challenged by the appellant as tutored and a suggestion was put to the respondent that she influenced the children not to go with their father as they are staying with her.
18. Once Bentham said that "children are undeserving of confidence and incapable of discernment". The evidence of a child witness has been under intense debate since the early days on account of the immature age but generally the evidence of a child witness was accepted on the presumption that the children were able to understand that they would "burn in the eternal fires of hell" if they would lie under oath. In "DPP v. Hester"4 Lord Morris observed that child's testimony is of a kind requiring corroboration as children may be unable to appreciate the gulf separating truth and falsehood "owing to immaturity or perhaps to lively imaginative gift".
19. The law in India is codified under section 118 of the Indian Evidence Act which provides that a witness shall be competent to testify unless the Court considers that he is prevented from understanding the questions put to him, or from giving rationale answers by reason of tender years, extreme old age, 4 1973 AC 296 11 First Appeal No. 56 of 2020 disease whether of body or mind, or any other cause of the same kind. Naturally it is then for the Courts to form an opinion whether child witness is capable of understanding the questions put to him.
20. The law is fairly settled that the evidence of a child witness is not required to be rejected per se but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about quality and reliability thereof acts thereon. Therefore, in the process of the scrutiny of the evidence of a child witness this has to be looked into that there was no likelihood of the child being tutored.
21. The statements made by DW4 are substantially eroded by the answers elicited from him in the cross-examination. A trace of tutoring of DW4 can be seen in his evidence but leaving this aspect aside his desire to live together with his parents is sufficiently reflected in paragraph no.16 of the cross-examination. The interaction with the minor daughter who was produced before the Court during proceeding of the custody case which is recorded by the Family Court Judge in the order dated 13 th September 2019 further gives a clear picture about the real state of affairs. The minor daughter Suddhi also expressed her desire to live in the company of her parents and in that way supported her brother that the family should live together.
22. Order dated 13th September 2019 of the Principal Judge, Family Court, Giridih is reproduced below:
English Translation:
"13.09.2019 Pairvi on behalf of the plaintiff with Vakalatnama. Attendance filed on behalf of the defendant-Suman Kumari and the minor Shreya Kumari @ Suddhi @ Arohi .
This suit has been filed by the plaintiff for the custody of minor son and daughter.
In the course of the interaction with minor daughter Shreya Kumari @ Suddhi @ Arohi, she stated that her father (the plaintiff) used to bring chocolates and cake for her on every birthday. She further states that she studies in St. Joseph School, Jamua in U.K.G. and her father attends every program of the school. It is further stated by the girl that she would be happy if all family members including the mother, father and brother live together, she would feel good (happy).
Learned counsel for the respondent prays that he does not want to adduce more evidences, so the evidence may be closed.
Heard. The defendant witness is closed upon the request of learned counsel for the defendant.
Put up on 11.11.2019 for argument."12 First Appeal No. 56 of 2020
23. The normal rule which governs the civil proceedings is that a fact is said to be showed if it is proved by preponderance of probability. In "N.G. Dastane (Dr) v. S. Dastane" 5 the Hon'ble Supreme Court has observed that the normal rule of preponderance of probability is applied in a civil proceeding. Under section 3 of the Indian Evidence Act a fact is said to be proved when the Court either believes it to exist or considers its existence so probable that a prudent man under the circumstances would proceed on the supposition that such fact really exists. The definition of fact is explained by statutory illustrations of which illustration (c) that a man said certain words is a fact is relevant for the present purposes. The Court therefore tries to find out whether on weighing the various probabilities the preponderance is in favor of existence of the fact in question.
24. A close scrutiny of the evidence tendered by both parties reveals that except the criminal cases filed by the respondent she has not disclosed any other reason to stay away from the company of the appellant and deprive the children love and affection of their father. In the cross-examination, DW3 admitted that she has no independent source of income and her parents are providing sustenance to her. She further admitted that her husband is getting salary of Rs.2 Lakhs from his employment under the Government, that there is better facility for education at Ranchi and, that the children are living with her on account of dispute between husband and wife. To contradict her evidence that dispute between the couple started about 6 months after the marriage, the appellant tried to demonstrate that the couple were enjoying good conjugal life and it was elicited from her that their son was born about 1½ years of the marriage and the daughter was born on 17th January 2014.
25. However, the statement of the appellant that his duty hours are between 09:00 AM to 05:00 PM and sometimes he would have to attend night duty for one or two hours have been used against him. The Family Court Judge referred to statement of the
5. (1975) 2 SCC 326 13 First Appeal No. 56 of 2020 mother of the appellant that the children are comfortably living with their mother and held that she is an old lady aged about 64 years for whom it would be quite impossible to take care of her grand-children. We further find that the statement of Dipanshu Darshan in paragraph no. 16 of his cross-examination has been interpreted by the Family Court Judge to mean that he prefers to reside with his mother. The Family Court Judge referred to section 13 of the Hindu Minority and Guardianship Act, 1956 and the judgment in "Gaurav Nagpal v. Sumedha Nagpal"6 to hold that better financial resources of either of the parents may be one of the considerations but certainly not the sole determining factor to decide custody of the child and held that the appellant who has sound financial status but undefined work schedule cannot be handed over custody of the minor children.
26. On a consideration of the materials on record, we are of the opinion that the minor children are deprived of company of their father which would affect their psychology and growth. The respondent inspite of financial constraints chose to stay at her parents' place on her own and deprived the minor children love and affection of their father without any just cause. In our opinion, the judgment in Original (Guardianship) Suit No.05 of 2016 is vitiated on account of consideration of the irrelevant materials which are not supported from the materials on record and non-consideration of evidence of the minor children which reveals their true feelings to remain in the company of their parents.
27. In course of his arguments, the appellant brought to our attention the proposal submitted by him before the Family Court and reiterated the same before us.
28. The Family Court has recorded proposal of the appellant seeking moulding of relief which is in the following terms:
"I hereby give proposal as molding of relief that custody of both children, both being more than 5 year of age, should be given to me and visitation right should be given to mother of children. If mother (Suman) agrees to live in Ranchi along with her parents, I shall bear these expanses up to Rs.25,000/- per month, I shall live in separate house. Wife Suman Kumari alongwith her parents shall 6 (2009) 1 SCC 42 14 First Appeal No. 56 of 2020 live in separate house. I shall not live with wife. Children will live with me, but they can go to their mother as and when required. But the defendant is not ready with this proposal and she clearly stated that if the plaintiff will keep her with him, then he will go to Ranchi alongwith their children, otherwise she is not ready to go to Ranchi".
29. In paragraph no. 20 of the judgment in Original (Guardianship) Suit No.05 of 2016, the Family Court has again referred to the aforesaid proposal of the appellant which is recorded in the following words:
"20. It is also pertinent to mention here that the plaintiff has filed a written argument on 18/112019, wherein he stated that he is competent and sound economic position and being a legal father of child. He further given the proposal of in his own writing that" I hereby give proposal as molding of relief that custody of both children, both being more than 5 year of age, should be given to me and visitation right should be given to mother of children. If mother (Suman) agrees to live in Ranchi along with her parents, I shall bear these expanses up to Rs.25,000/- per month. I shall live in separate house. Wife Suman Kumari alongwith her parents shall live in separate house. I shall not live with wife. Children will live with me, but they can go to their mother as and when required. But the defendant is not ready with this proposal and she clearly stated that if the plaintiff will keep her with him, then he will go to Ranchi alongwith with their children, otherwise she is not ready to go to Ranchi."
30. The issue is whether Original (Guardianship) Suit No. 05 of 2016 can be decreed and custody of the minor children be given to the appellant. In the circumstances of the case, we are not prepared to do so for the reason that the minor children have unequivocally expressed their desire to live in the company of their father and mother. The minor daughter Shreya Kumari @ Suddhi stated before the Family Court Judge that her father attended every programme in her school and would bring chocolates and cake for her on her birthdays. She expressed a desire that she wants to live in the company of her father, mother and brother. Dipanshu Darshan who was examined as DW4 also expressed his desire to study at Ranchi in the company of father if his mother also stays there. In our opinion, the Family Court occupying the position of parens patriae cannot be oblivious of its duties to protect the interests of the minor children.
31. The Family Court overlooked the aforesaid aspects of the case and did not address itself to the consequences of depriving the minor children company of their father. It is settled law that 15 First Appeal No. 56 of 2020 grant of relief is always one of discretion and the Court having regard to the substance of the matter and other relevant considerations can mould the relief. The concept of joint custody of the minor child is relatively new in India but certainly not unknown or a prohibited zone. In "K.M. Vinaya v. B.R. Srinivas" 7 the Hon'ble Supreme Court in the larger interest of the welfare of the child ordered joint custody and guardianship of the minor child. As would appear from the judgment in "K.M. Vinaya"7, the parties arrived at amicable settlement in terms of which directions were issued for joint custody of the minor child. We find that though mediation exercise at the instance of this Court has failed but the issue of shared parenting or joint custody and guardianship of the minor children Dipanshu Darshan and Suddhi still remains alive and a conscious effort in this regard by the Family Court would be the most desirable thing to do. We find a glimpse on the idea of joint parenting in the judgment of "Aman Lohia v. Kiran Lohia"8 in which while setting aside the exparte judgment passed by the Family Court the Hon'ble Supreme Court indicated that the idea of joint parenting may be debated before the Family Court.
32. Dispanshu Darshan and Suddhi both have shown remarkable sensibility and maturity which unfortunately their parents are lacking. In "Sheoli Hati v. Somnath Das"9 the Hon'ble Supreme Court emphasized the right of every child to proper health and education. We, therefore, hold that the appellant and the respondent are both under a legal duty jointly as well as severally to co-operate with each other in securing the above goal even if they fail to reunite.
33. In view of the aforesaid discussions, we are of the opinion that the judgment in Original (Guardianship) Suit No. 05 of 2016 cannot be sustained in law and is accordingly set aside. Original (Guardianship) Suit No. 05 of 2016 is restored to its original files. The matter is remanded back to the Family Court, 7 (2015) 16 SCC 405 8 (2021) 5 SCC 489 9 (2019) 7 SCC 490 16 First Appeal No. 56 of 2020 Giridih for deciding the issue of shared parenting, or joint custody and guardianship of Dipanshu Darshan and Suddhi by taking evidence of the appellant and the respondent alone. Let this exercise be concluded within 60 days of appearance of the parties before the Family Court and the judgment be delivered on the above issue. The Family Court Judge shall fix a date for appearance of the parties within 30 days of receiving a copy of this judgment.
34. First Appeal No. 56 of 2020 stands disposed of in the aforesaid terms.
(Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 21st April 2022 Amit/R.K N.A.F.R