Lakhimunni Marandi vs Baburam Murmu on 1 August, 2025

[Cites 26, Cited by 0]

Jharkhand High Court

Lakhimunni Marandi vs Baburam Murmu on 1 August, 2025

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad, Rajesh Kumar

                                                  2025:JHHC:21684-DB




      IN THE HIGH COURT OF JHARKHAND AT RANCHI

                        First Appeal No.63 of 2023
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Lakhimunni Marandi, Aged about 28 Years, W/O- Late Suraj Murmu, D/O
Kamision Marandi, At present Resident of Matialghati (father's house)
P.O+ P.S:- Pakuria, Now resident of Moglabandh, P.O.+P.S.:- Pakuria,
Distrist: Pakur, Jharkhand. ..........              Plaintiff/Appellant

                                 Versus

 1. Baburam Murmu, son of Late Hopna Murmu
 2. Kapu Tudu, W/O Baburam Murmu, Both resident of village
    Baliadanaga, P.O.+ P.S.:-Pakur (Town), District:- Pakur, Jharkhand
                                      .... ... Defendant/Respondents
                                 -------

CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
          HON'BLE MR. JUSTICE RAJESH KUMAR
                               -------
For the Appellant   : Mr. Abhay Kumar Mishra, Advocate
For the Respondents : Mr. Manoj Kumar Choubey, Advocate
                                ------

 C.A.V on 08.07.2025                  Pronounced on 01/08/2025
 Per Sujit Narayan Prasad, J.

The instant appeal under section 30 of the Guardians and Wards Act, 1890 is directed against the judgment dated 28.01.2023 and the decree dated 10.02.2023 passed in Original Suit No.02 of 2020 by the learned Principal Judge, Family Court, Pakur (in short, Family Judge) whereby and whereunder the petition filed under section 10 of the Guardian and Wards Act, 1890 by the appellant herein for appointment of the guardian of the person and property of the minor, namely, Sunny Murmu, has been dismissed.

2. The brief facts of the case as pleaded in the plaint having been recorded by the learned Family Judge, needs to be referred herein as:

(i) It is pleaded that Sunny Murmu (minor) is the son of the deceased Suraj Murmu and Sunny Murmu (minor) is the grandson of the 2025:JHHC:21684-DB above-named defendants Baburam Murmu and Kapu Tudu resided at village Baliadanaga, P.S. Pakur (Muffasil), District Pakur. The plaintiff has further submitted that Suraj Murmu was a well-

educated and promising youth and his marriage was solemnized with the plaintiff/appellant Lakhimunni Marandi on 13.04.2010 according to Santhal Sarna religion and custom and plaintiff's father Kamision Marandi is a reputed Homeopath Practitioner and he spent a lot of money in the said marriage of the plaintiff/appellant, he gifted costly articles including a new motor car to the married daughter and son in law for their use and enjoyment and a list of articles was prepared which was signed by the guests of both sides as witnesses present in the marriage ceremony and finally the articles were made over to the bridegroom's father Baburam Murmu who signed the carbon copy of the list and he took the articles to Baliadanaga.

(ii) It is pleaded that the articles are worth above of Rs. 7 lakhs which have been described in the Schedule set at the foot of this plaint, marriage was held at Moglabandh and the plaintiff lived with husband at his home at Baliadanaga and the couple was blessed with a son who was born on 17.08.2013 and has been named Sunny Murmu. The plaintiff/appellant was a trained nurse and after marriage she desired to be a graduate and continued study after marriage and in the month of November, 2018 she went to write her B.A Exam at Deoghar when on 12.11.2018 she received a sad news of husband's death and she rushed to Balidanga, dead body was taken to the burial place. She under shock arrived there and wanted 2 2025:JHHC:21684-DB to see face of the deceased but her father-in-law was not ready to show then she started crying and fell at the feet of father in law and then the villagers sympathetically allowed her to see.

(iii) It is pleaded that she was told by some villagers that the deceased met an accident with a tractor while running on a motor bike but no FIR was lodged or post mortem held and members in the in-law's family were not prepared to talk about death of Suraj and they also did not like stay of plaintiff in the family any more after death of the husband. They hated the widow plaintiff and suspected her to be a witch; therefore, they looked down upon her she any how tolerated the hatred and passed miserable days there and sometime also at father's place and in-laws tried to keep the minor Sunny Murmu disconnected from the plaintiff as the child himself told the mother that the grand parents have asked him not to talk to the mother otherwise, they would beat him.

(iv) The plaintiff has further submitted that the child felt threatened and terrorized and lastly on 04.12.2019 the in laws and their married daughter Laxmi Murmu assaulted the plaintiff and drove her out of home after snatching her minor son Sunny Murmu. Thereafter frustrated plaintiff returned father's home and is filing this plaint for her appointment as guardian of minor Sunny Murmu and restoration of the child and on 04.12.2019 is being the cause of action. The plaintiff has further submitted that being widow of the deceased Suraj Murmu is now representative of the deceased husband to take care of the minor Sunny Murmu and take possession of the minor as her right to maintain him and impart proper education but the 3 2025:JHHC:21684-DB defendants have illegally deprived her of the rights and the minor remains gloomy with Shabby clothes in the hands of the defendants and after death of Suraj Murmu his minor son Sunny Murmu is his only heir to inherit him and she is entitled to the articles given in marriage by her father which are movable property and now in possession of the respondents which may be ruined by sale or improper handling.

(v) It is further pleaded the parties are governed by Santhal customary law wherein the plaintiff mother is representative of the deceased husband and has right to take care of her minor son, bring him up and educate properly, she has capacity to do so because and she works in the clinic of her father at Pakuria and she being well versed in female diseases the number of patients has increased considerably. Her father has fully agreed to cooperate the plaintiff. The plaintiff has further submitted that the other relations of the said minor now living are (a) Laxmi Murmu D/o Baburam Murmu who is father's married sister of the minor she resides with the defendants in their house with husband and children at Baliadanaga, P.S. Pakur (Muffasil), District Pakur.(b) Kamision Marandi maternal grandfather of minor resident of Maliaghati, P.S.Pakuria, Dist. Pakur.

(vi) It is pleaded that no guardian of the person or property of the said minor has been appointed either by the will of the deceased Suraj Murmu or by court and the plaintiff being mother of the minor is sincerely making this plaint for her appointment as guardian she has good earning in father's clinic and father also fully supports her and 4 2025:JHHC:21684-DB as such she is proper and fit person for appointment as guardian and it is for the welfare of the minor that he be given in the custody of his mother and there cannot be any person other than mother for the welfare of the minor to show nearness and kindness.

(vii) It is pleaded that the defendants have kept Laxmi Murmu the daughter who has her family and now she is dominant in the family and in their presence the minor Sunny Murmu is neglected one and in fact, in absence of mother the said minor naturally remains sad. The nature took away his father and the respondent drove out the mother, so the minor now deprived of both the parents, he finds no one to render natural love to him as other children find.

3. On the aforesaid ground, the appellant has prayed for following:

(i) the plaintiff may be appointed the guardian of the person and property of the said minor

(ii) the minor may be given in custody of the plaintiff and the property mentioned in the Schedule of this plaint may be restored to the plaintiff.

4. It needs to mention herein that in Original Suit No.02 of 2020 upon issuance of the notices, the respondent has appeared and filed a written statement. The defendants has stated in their written statement inter alia that the parties belong to Schedule Tribe by caste and as such they are governed by Santhal Customary Law and the plaintiff suit for appointment of guardian of minor Sunny Murmu U/s 10 of the Guardians and Wards Act, 1890 is not maintainable either under the facts or under the law. The defendants have further submitted that it is true that the plaintiff married with defendant's son namely Suraj Murmu of 5 2025:JHHC:21684-DB Beliyadanga, Pakur on 13th April, 2010 as per Santhal Custom and Rites but it is totally false to say that the father of the plaintiff Kamision Marandi gave huge articles as per the list mentioned in the schedule and spent huge amount at the time of marriage. It was an ideal marriage so there was no give and take between them as per custom the defendants have given 6 Mann of paddy to the father of the plaintiff as Gonom and the defendants had gone to plaintiff's house at Monglabandh, P.S. Pakuria, District Pakur along their son Suraj Murmu (now dead) along with Barat at his own expenses to celebrate the marriage ceremony. The defendants have further submitted that the father of the plaintiff has gifted costly articles mentioned in the schedule is totally false and baseless and the father of the plaintiff did not give any articles to Suraj Murmu or the defendants at the time of marriage, only a motorcar was given by him as gift to Suraj Murmu (now dead) for the convenience of commutation of the plaintiff and her husband. It is further submitted that the plaintiff has prepared forged documents with a view to implicate and harass the defendants. After the marriage the plaintiff came to the house of her husband and led a peaceful conjugal life for 5 years and due to their wedlock a son was born on 17.08.2013 whose name is Sunny Murmu and after the birth of the son, the plaintiff began to create trouble to the son of the defendants to settle at Sasural at Monglabandh, P.S. Pakuria, District Pakur being separate from his parents which was denied by the defendants' son Suraj Murmu as a result of which the plaintiff refused to live at Beliyadanga in the house of the defendants as a result of which a dispute was cropped up. 6

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5. The defendants have further submitted that the defendants and their son tried to reconcile the matter but in vain and their son went several times to bring her back but she did not come.

6. It is further submitted that she flatly denied saying that she will not live in Pakur at the house of the defendants and the son of the defendants waited upto one year with a hope that the matter will be settled but in vain and lastly the plaintiff and her parents put a proposal before the defendant's and their son for divorce. It is further asserted that thereafter a Gramin Bhaithak on 2nd of December, 2017 was held in the village Beliyadanga and both the plaintiff and the defendants' son Suraj Murmu divorced each other by pouring the water from the leg and by tearing the sal leaves in the presence of the parents of both husband and wife and villagers and defendants of her family did not accept the son Sunny Murmu as a result of which Sunny began to live with his father Suraj Murmu who took care of his son under the guidance of the parents. Since then, the plaintiff began to live at Monglabandh, P.S. Pakuria, District - Pakur with her parents having no connection at all with her son, Sunny Murmu, her husband Suraj Murmu and the defendants.

7. The defendants have further submitted that suddenly on 13th November, 2018 the son of the defendants namely Suraj Murmu died and after the death of Suraj Murmu his minor son Sunny Murmu began to live with his grandparents (defendants) and plaintiff neither took care nor she came to meet with her son Sunny Murmu from the date of divorce to till date and even on the death of her husband the plaintiff did not turn up. The defendants have further submitted that plaintiff neither came to see 7 2025:JHHC:21684-DB the face of the deceased nor came to see her minor son Sunny Murmu from the date of divorce.

8. The defendants have further submitted that the defendant Suraj Murmu died due to severe cold. On 12.11.2018 Suraj Murmu had gone to Kalidaspur Dungri Tola to meet his MAMA which is about 8-9 Km from the house of the defendants and in spite of several forbidance he did not stay at the MAMA'S house and rushed from Dungri Tola to Pakur by motorcycle vide registration no. JH16A/3262. At about 10:00 P.M his father Baburam Murmu rang up to his son to know where he was but he did not pick up the phone just after 10 minutes at 10:10 P.M he reached his house and his position was not good as his entire body was shivering from cold and as soon as he reached, primary home treatments were started and a doctor was called but he died after about 2 hours, i.e, about 12:20 PM. The defendants have further submitted that the doctor issued a certificate to this effect on 02.12.2018 and as such the question of post mortem does not arise. The defendant has further submitted that Lakhmi Murmu is married with Vimal Kisku (on 13/11/18) at night before the arrival of the doctor. son of Wilson Kisku of Dhanbad, P.S. Hiranpur, District - Pakur and she lives at SASURAL and off and on she visits her father's house and as such question of assaulting and terrorizing on the part of Lakshmi Murmu does not arise and it is necessary to mention here that a divorce has been commenced between the defendants' son Suraj Murmu and the plaintiff much earlier, i.e, on 02.11.2016 and the plaintiff lives with her father at Monglabandh, P.S. Pakuria, District Pakur so the question of torture and demand does not arise.

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9. The defendants have further submitted that the divorce was commenced on 02.11.2016 as per their custom between the plaintiff and the defendant's son Suraj Murmu and since then the minor Sunny Murmu is living under the care and custody of his father Suraj Murmu and after the death of Suraj Murmu, Sunny Murmu is living with the defendants and his reading in class U.K.G. in St. Joseph English Medium School, Pakur and after expiry of three years the plaintiff filed this petition for the custody of her child only with a view to ruin his life with a malafide intention which is very suspicious. The defendant has further submitted that plaintiff is an unemployed lady having no source of income and she is fully dependent upon her father and plaintiff's father is a simple homeopathic doctor having no sufficient means to give proper education and maintenance to his daughter's son Sunny Murmu and assertions made in the para regarding working in the clinic with her father in Pakuria and she being well versed in the female diseases is completely false. So far as defendants know the plaintiff has no valid license of practicing as a doctor.

10. The defendants have further submitted that moreover the plaintiff used to live at Monglabandh, P.S.-Pakuria, District-Pakur which is an interior place having no proper communication and facility of proper education and if Sunny Murmu lives under the custody of his mother, he will not get proper education and his future will be dark. Defendant no. 1, Baburam Murmu is a ration dealer having sufficient landed property and means to maintain the minor Sunny Murmu by giving proper education and a better life. If the child Sunny Murmu given under the custody of the plaintiff his life will be dark and the welfare of the minor will be jeopardized.

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11. The defendants have further submitted that moreover the custody of minor the grandfather has the pre-existing rights as because the plaintiff is a divorcee and in these circumstances the plaintiff is disqualified to be appointed as legal guardian in preference of grandfather as because the plaintiff is neglecting the minor Sunny Murmu from the very beginning.

12. The defendants have further submitted that the defendants are maintaining the minor Sunny Murmu for his welfare and with utmost love and affection the sustenance and schooling are safe in the hands of the defendants and the grandfather of the minor Sunny Murmu is the custodian and considering the welfare, sustenance and wellbeing of the minor which are the paramount considerations rest upon the grandfather.

13. The defendants lastly prayed that the plaint of the plaintiff is not entitled to get any relief as claimed for and the plaint of the plaintiff is fit to be dismissed with cost.

14. Learned Family Judge, after institution of the said case, taking into consideration of the pleadings of the parties has formulated the issues and has decided the lis by dismissing the suit.

15. The aforesaid judgment by which custody of the minor has been denied by the learned trial Court is under challenge by filing the instant appeal.

Submission on behalf of the appellant-husband:

16. Mr. Abhay Kumar Mishra, the learned counsel appearing for the appellant has taken the following grounds while challenging the impugned judgment:

(i) It has been contended that the learned Family Judge has not taken into consideration that the appellant is the mother and, 10 2025:JHHC:21684-DB as such, she is having better claim over the minor who needs guardianship/custody.

(ii) The learned trial Court has committed a gross error by not taking into consideration the issue of welfare of the child who can better be nourished by the mother and ignoring the said fact has dismissed the petition filed under section 10 of the said Act by assigning the reason that the child is living since birth with the respondent but while coming to such finding no consideration has been given with respect to the issue of better claim even accepting the claim that the child is living with the grand-parents but the appellant being the mother is having better claim over the grand-

parents.

17. The learned counsel based upon the aforesaid ground has submitted that the impugned judgment and decree, therefore, is not sustainable in the eyes of law and it requires interference by this Court. Submission on behalf of the respondent-wife:

18. Mr. Manoj Kumar Choubey, the learned counsel appearing for the respondent-wife has taken the following grounds:

(i) There is no error in the impugned judgement. The learned Family Judge has considered the entire issue and on the basis of evidence as led by the parties has passed the order impugned as such same may not be interfered with.

(ii) It has been contended that the issue of welfare is well to be looked into by the grand-parents on the basis of the fact that since his birth the child is living with the grand-parents.

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(iii) It has been contended that the mother has taken no care rather she has left the house on her own and the minor is living with the grand-parents, hence, it is the grand-parents (respondents herein) to be more concerned with the welfare of the minor.

19. Learned counsel has submitted that the learned Family Judge on consideration of the aforesaid fact has denied the custody of the minor to be given in favour of the appellant herein, hence, the impugned judgment needs no interference.

20. In response thereto, a submission has been made on behalf of the appellant that it is incorrect on the part of the appellant that she has left the house on her own will rather she has forced to leave the house after death of her husband on the allegation of witchcraft and she is having no option but to leave the house and while forcing her to leave the house her baby child has been taken, kept by the respondents in their custody. Analysis:

21. We have heard the learned counsel appearing for the parties, gone through the impugned judgment as well as the Trial Court Records, as also the testimonies of the witnesses and the documents exhibited therein.

22. In the aforesaid backdrop, the petition has been filed under section 10 of the Guardian and Wards Act, 1890 by the mother (the appellant herein) against the grand-parents to appoint her as guardian of the person and property of the minor, namely, Sunny Murmu aged on the date of passing the judgment of about 6 years with a further prayer to direct the respondents herein/defendants to the suit.

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23. The learned Family Judge on consideration of the fact that the minor is living with the respondents/defendants since the birth, after death of his father, has refused to pass positive direction in favour of the appellant against which the present appeal has been preferred by the mother.

24. The learned Family Judge has formulated altogether five issues, for ready reference the same are being quoted hereinbelow:

i) Whether the suit is maintainable in its present form?

ii) Whether the Plaintiff has got valid cause of action for the suit?

iii) Whether this court has got jurisdiction to try the suit ?

iv) Whether the plaintiff being the mother of the child entitled to having custody of the child as prayed ?

v) Whether the custody of minor child in the hand of plaintiff is for his better welfare and education?

vi) Any other relief/reliefs, the plaintiff is entitled to ?

25. First of all, the learned Family Judge has taken into consideration the issue no (iv) and (v) and the learned Family Judge has considered the evidence adduced on behalf of the parties for deciding the issues involved in Original Suit No.02 of 2020.

26. This Court in order to appreciate the aforesaid rival submission before entering into the legality and propriety of the impugned judgment needs to discuss herein the relevant part of the evidences adduced on behalf of the parties before the learned Family Court, wherein to appoint the guardian of the person and property of the minor Sunny Murmu both the parties have adduced their evidence.

27. During the trial, four witnesses have been examined on behalf of the appellant who himself has been examined PW1 and exhibited some documents. PW2-Kamishan Marandi is the father of plaintiff, PW3 is Mistri Kisku and PW4 is Sunil Kisku who knows both the parties. 13

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28. The plaintiff has also produced some documentary evidence which have been exhibited by the learned Family Judge. Carbon copy of list of articles has been marked as Ext.1 and signature in carbon copy of list of articles has been marked as Ext.2.

29. On the other hand, in support of his case the defendant has also examined four witnesses. The defendant has been examined himself as DW1, DW2 Kapu Tudu is the grandmother of the minor Sunny Murmu, DW3 is Wakil Tudu and DW4 is Sunil Tudu.

30. The defendant has also produced some documentary evidence. The school fee receipt has been marked as Ext.A to A/10, Tuition Fee Card has been marked as Ext.B and xerox copy of tuition fee card has been marked as Ext.X.

31. P.W.1 Lakhimunni Marandi has stated in her examination-in- chief that Sunny Murmu is her minor son and she filed the case of the custody of the minor son as natural guardian. She further stated that her marriage was solemnized with the Suraj Murmu on 13.04.2010 according to Santhal Sarna religion and custom and her father spent a lot of money in the said marriage. Her father has gifted costly articles including a new AC motor car, colour TV, Godrej Almirah to son in law and her daughter for their use and enjoyment and a list of articles was prepared which was signed by the guests of both sides as witnesses present in the marriage ceremony and finally the articles were made over to the bridegroom's father Baburam Murmu who signed the carbon copy of the list and he took the articles to Baliadanaga. The articles are more than worth of Rs. above 7 lakhs which have been described in the Schedule set at the foot of this plaint, marriage was held at Moglabandh and she lived 14 2025:JHHC:21684-DB with husband at his home at Baliadanaga and the couple was blessed with a son who was born on 17.08.2013 now the age of son is 7 years and has been named Sunny Murmu. PW1 further stated that she is a trained nurse and after marriage she desired to be a graduate and continued study after marriage and in the month of November, 2018 she went to write her B.A. Exam at Deoghar when on 12.11.2018 she received a sad news of husband's death and she rushed to Balidanga, dead body was taken to the burial place. She under shock arrived there and wanted to see face of the deceased but her father-in-law was not ready to show then she started crying and fell at the feet of father-in-law and then the villagers sympathetically allowed her to see. The plaintiff has further submitted that she was told by some villagers that the deceased met an accident with a tractor while running on a motor bike but no FIR was lodged or post mortem held and member's in the in-law's family were not prepared to talk about death of Suraj and they also did not like her stay in the family any more after death of her husband. They hated the widow and suspected her to be a witch; therefore, they looked down upon her she any how tolerated the hatred and passed miserable days there and sometime also at father's place and in-laws tried to keep the minor Sunny Murmu disconnected her. The child himself told the mother that the grand parents have asked him not to talk to the mother otherwise they would beat him. The child felt threatened and terrorized and lastly on 04.12.2019 the in laws and their married daughter Laxmi Murmu assaulted her and drove her out of home after snatching her minor son Sunny Murmu. Thereafter she returned to her father's home and is filing this suit for her appointment as guardian of minor Sunny Murmu and restoration of the child. She is being widow of 15 2025:JHHC:21684-DB the deceased Suraj Murmu is now representative of the deceased husband to take care of the minor Sunny Murmu and take possession of the minor as her right to Murmu and to maintain him and impart proper education but the defendants have illegally deprived her of the rights and the minor remains gloomy with Shabby clothes in the hands of the defendants and after death of Suraj Murmu his minor son Sunny Murmu is his only heir to inherit him and she is entitled to the articles given in marriage of her father which are movable property and now in possession of the defendants which may be ruined by sale or improper handling. She has capacity to do so because and she works in the clinic of her father at Pakuria and she being well versed in female diseases the number of patients has increased considerably. Her father has fully agreed to cooperate the plaintiff. No guardian of the person or property of the said minor has been appointed either by the will of the deceased Suraj Murmu or by court and the plaintiff being mother of the minor is sincerely making this plaint for her appointment as guardian she has good earning in father's clinic and father also fully supports her and as such she is proper and fit person for appointment as guardian and it is for the welfare of the minor that he be given in the custody of his mother and there cannot be any person other than mother for the welfare of the minor to show nearness and kindness. She may be appointed the guardian of the person and property of the said minor son and her minor son may be given in her custody.

During cross-examination she stated that she can file the birth certificate of Sunny Murmu but she did not file the same. Her son was born in her house and not in hospital. In para 21 she stated that she has received the information of death of her husband at 08:00 A.M. She gave 16 2025:JHHC:21684-DB half exam and came to Pakur at 03:00 O'clock. In para 29 she stated that the child was studying at Little Angle School at Kurapara. After Little Angle, her son was studying at St. Joseph School and now the child is living with his grandfather and grandmother. Last two years she does not know whereabout of the child but child is in matrimonial house. She has no school paper of the child in all the papers the signature is of the father and grandfather of the child. In para 35 she stated that she knows Bimal Kisku who is her Nandoshi (brother-in-law). In para-41 she stated that she does not know how her husband death occurred because at that time she was not present there. Her father-in-law has a PDS Shop. She does not know how much land is in the possession of her father-in-law.

32. PW2- is Kamishan Marandi who is father of the plaintiff. He has stated on oath in his examination-in-chief that his daughter has filed the case of the custody of the minor son Sunny Murmu as natural guardian. He has further stated that his daughter's marriage was solemnized with the Suraj Murmu on 13.04.2010 according to Santhal Sarna religion and custom and he spent a lot of money in the said marriage. He had gifted costly articles including a new AC motor car, colour TV, Godrej Almirah to son-in-law and his daughter for their use and enjoyment and a list of articles was prepared which was signed by the guests of both sides as well as witnesses present in the marriage ceremony and finally the articles were made over to the bridegroom's father Baburam Murmu who signed the carbon copy of the list and his daughter took the articles to Baliadanaga. The articles are worth more than above Rs. 7 lakhs which have been described in the Schedule set at the foot of this plaint, marriage was held at Moglabandh and she lived with husband at his home at Baliadanaga and 17 2025:JHHC:21684-DB the couple was blessed with a son who was born on 17.08.2013 now the age of sons is 7 years and has been named Sunny Murmu. He further stated that she is a trained nurse and after marriage she desired to be a graduate and continued study after marriage and in the month of November, 2018 she went to write her B.A Exam at Deoghar when on 12.11.2018 she received a sad news of husband's death and she rushed to Balidanga, dead body was taken to the burial place. She under shock arrived there and wanted to see face of the deceased but her father-in-law was not ready to show, then she started crying and fell at the feet of father-in-law and then the villagers sympathetically allowed her to see. The plaintiff has further submitted that she was told by some villagers that the deceased met an accident with a tractor while running on a motor bike but no FIR was lodged or post mortem held and members in the inlaws family were not prepared to talk about death of Suraj and they also did not like her stay in the family any more after the death of her husband. They hated the widow and suspected her to be a witch, therefore, they looked down upon her, she any how tolerated the hatred and passed miserable days there and sometime also at father's place and in-laws tried to keep the minor Sunny Murmu disconnected with her. The child himself told the mother that the grand parents have asked him not to talk to the mother otherwise they would beat him. The child felt threatened and terrorized and lastly on 04.12.2019 the in laws and their married daughter Laxmi Murmu assaulted her and drove her out of home after snatching her minor son Sunny Murmu. Thereafter she returned to her father's home and is filing this suit for her appointment as guardian of minor Sunny Murmu and restoration of the child. She is being widow of the deceased Suraj Murmu is now 18 2025:JHHC:21684-DB representative of the deceased husband to take care of the minor Sunny Murmu and take possession of the minor as her right to maintain him and impart proper education but the defendants have illegally deprived her of the rights and the minor remains gloomy with Shabby clothes in the hands of the defendants and after death of Suraj Murmu his minor son Sunny Murmu is his only heir to inherit him and she is entitled to the articles given in marriage by her father which are movable property and now in possession of the defendants which may be ruined by sale or improper handling. She has capacity to do so because she works in the clinic of her father at Pakuria and she being well versed in female diseases, the number of patients has increased considerably. Her father has fully agreed to cooperate the plaintiff. No guardian of the person or property of the said minor has been appointed either by the will of the deceased Suraj Murmu or by Court and the plaintiff being mother of the minor is sincerely making this plaint for her appointment as guardian as she has good earning in father's clinic and father also fully supports her and as such she is proper and fit person for appointment as guardian and it is for the welfare of the minor that he be given in the custody of his mother and there cannot be any person other than mother for the welfare of the minor to show nearness and kindness. She may be appointed the guardian of the person and property of the said minor son and her minor son may be given in her custody.

During cross-examination he has stated that in para 27 his daughter was studying IGNUE. The study of IGNUE is at the house. His daughter went to Deoghar from Pakur for examination. She lived at Dumka. There all expenses were borne by Suraj for living at Dumka. In 19 2025:JHHC:21684-DB para 28 he stated that he has received an information regarding the death of his son in law through mobile and that information given to him by Bimal (Nandosi) of his daughter.

33. P.W.-3 is Mistri Kisku, who has stated on oath in his examination-in-chief that he identified the plaintiff Lakhimunni Marandi and defendant Baburam Murmu and his wife. The marriage of Lakhimunni Marandi was solemnized with Suraj Murmu on 13.04.2010. Suraj Murmu had died. At the time of marriage, he was present there. In the said marriage 33 different type of articles has been given and a paper was prepared. He identified the carbon copy of the list of articles which was prepared on 13.04.2010 at 10:00 P.M. He identified the signature of pradhan of village - Monglabandh Anand Tudu, Sushil Tudu, Jogmajhi Sunil Kisku, Mahesh Murmu, Babulal Murmu on the said article list. The said list was prepared in two copies. The carbon copy of the list was given to the Kamishan Marandi, the father of the plaintiff and the original copy was given to the father of bride groom. The carbon copy of the said list is marked as Exhibit -1.

During cross-examination not a single relevant question regarding the custody of the child was asked by the learned counsel of the defendant.

34. P.W.-4 is Sunil Kisku has stated on oath in his examination-in- chief that he knows Lakhimunni Marandi and defendant Baburam Murmu and his wife Kafu Tudu, who are the mother-in-law and father-in-law of Lakhimunni Marandi. The marriage of Lakhimunni Marandi was solemnized with Suraj Murmu on 13.04.2010. Suraj Murmu had died. Lakhimunni Marandi has a son, namely, Sunny Murmu from the wedlock 20 2025:JHHC:21684-DB of her husband. At the time of marriage, the father of Lakhimunni has given a car, bed, godrej almirah (total 33 articles) and a paper was prepared and on the said paper, village pradhan Pramanik and 10 - 12 persons put their respective signatures. He identified the same which is marked as Exhibit 1/1. According to Santhali custom after the death of father, the son has a right and the mother is a legal guardian of a minor son. Lakhimunni Marandi is doing work as a nurse and she earns Rs. 30-35 thousand per month. She does the job as a nurse in her father clinic. Now she does the job in a hospital at Dhanbad.

During cross-examination, at para 12 he has stated that he has not seen any paper regarding the nurse occupation of Lakhimunni Marandi. She is doing the work without any paper. In para 15 he stated that he never went to the house of Baburam Murmu. He has further stated that he cannot say the how much land and how much is the earning of Baburam. In para 17 he admitted that Lakhimunni Marandi is his sister in village relation.

35. D.W. 1 Baburam Murmu has stated in his examination-in-chief that he belongs to Schedule Tribe by caste and they follow the Hindu religion and they are governed by Santhal Customary Law. Lakhimunni Marandi has filed instant suit for appointment of guardian of minor Sunny Murmu under section 10 of the Guardians and Wards Act, 1890 which is not maintainable either under the facts or under the law. It is true that the plaintiff marriage was solemnized with defendant's son namely Suraj Murmu of Beliyadanga, Pakur on 13th April, 2010 as per Santhal Custom and Rites and the plaintiff is the legally married wife of deceased Suraj Murmu but it is totally false to say that the father of the plaintiff Kamishan Marandi gave huge articles as per the list mentioned in the schedule and 21 2025:JHHC:21684-DB spent huge amount at the time of marriage. DW1 has further stated that it was an ideal marriage so there was no give and take between them as per custom, the defendants have given 6 Mann of paddy to the father of the plaintiff as Gonom and the defendants had gone to plaintiff's house along with their son Suraj Murmu (now dead) along with Barat at his own expenses to celebrate the marriage ceremony. It is totally false and baseless that the father of the plaintiff has gifted costly articles mentioned in the schedule. He has further stated that it is admitted fact that the plaintiff was the wife of deceased Suraj Murmu and their marriage was solemnized on 13.04.2010 as per Santhal Customary Law and after the marriage the plaintiff came to the house of her husband and led a peaceful conjugal life for 5 years and due to their wedlock a son was born on 17.08.2013 whose name is Sunny Murmu and after the birth of the son, the plaintiff began to create trouble to the son of the defendants to settle at Sasural at Monglabandh, P.S. Pakuria, District Pakur being separate from his parents which was denied by the defendants' son Suraj Murmu as a result of which the plaintiff refused to live at Beliyadanga in the house of the defendants as a result of which a dispute was cropped up. He and his son tried to reconcile the matter but in vain and his son went several times to bring her back but she did not come and she flatly denied saying that she will not live in Pakur at the house of the defendants. Lastly the plaintiff and her parents put a proposal before him and his son for divorce. Accordingly, a Gramin Bhaithak on 2nd of December, 2017 which was held in the village Beliyadanga and both the plaintiff and his son Suraj Murmu divorced each other by pouring the water from the leg and by tearing the sal leaves in the presence of the parents of both husband and 22 2025:JHHC:21684-DB wife and villagers and defendants of her family did not accept the son Sunny Murmu as a result of which Sunny began to live with his father Suraj Murmu who took care of his son under his guidance. Since then, the plaintiff began to live at Monglabandh, P.S. Pakuria, District Pakur with her parents having no connection at all with her son Sunny Murmu and her husband Suraj Murmu. This witness has further stated that Sunny Murmu used to live with his father Suraj Murmu after the divorce under the care and guidance of the defendants and suddenly on 13th November, 2018 his son namely Suraj Murmu died and after the death of Suraj Murmu, his minor son Sunny Murmu began to live with them and plaintiff neither took care nor she came to meet her son Sunny Murmu from the date of divorce to till date and even on the death of her husband the plaintiff did not turn up. He has further stated that plaintiff neither came to see the face of the deceased nor came to see her minor son Sunny Murmu from the date of divorce. His son Suraj Murmu died due to severe cold. On 12.11.2018 Suraj Murmu had gone to Kalidaspur Dungri Tola to meet his MAMA which is about 8-9 Km from his house and inspite of several forbiddance he did not stay at the MAMA's house and rushed from Dungri Tola to Pakur by motorcycle vide registration no. JH16A/3262. At about 10:00 P.M. He made a call to his son to know where he was but he did not pick up the phone and just after 10 minutes at 10:10 P.M his son reached his house and his position was not good as his entire body was shivering from cold and as soon as he reached, primary home treatments were started and a doctor was called but he died after about 2 hours, i.e , about 12:20 PM (on 13.11.18) at night before the arrival of the doctor. He has further stated that the doctor issued a certificate to this effect on 23 2025:JHHC:21684-DB 02.12.2018 and as such the question of post mortem does not arise. The rest story of plaintiff that the child felt threatened and terrorized and that on on 04.12.2019 the in laws and their married daughter Lakhmi Murmu assaulted the plaintiff and drove her out of the house after snatching her minor son Sunny Murmu is completely false and baseless. Lakshmi Murmu is married with Vimal Kisku son of Wilson Kisku of Dhanbad, P.S. Hiranpur, District - Pakur and she lives at her matrimonial home and off and on she visits her father's house and as such question of assaulting and terrorizing on the part of Lakshmi Murmu does not arise. A divorce has been commenced between his son Suraj Murmu and the plaintiff much earlier, i.e, on 02.11.2016 and the plaintiff lives with her father at Monglabandh, P.S. Pakuria, District Pakur so the question of torture and demand does not arise. The divorce was commenced on 02.11.2016 as per their custom between the plaintiff and his son Suraj Murmu and since then the minor Sunny Murmu is living under the care and custody of his father Suraj Murmu and after the death of Suraj Murmu, Sunny Murmu is living with him and Sunny Murmu is studying since year 2019 at St. Joseph School, Piyadapur Pakur, Jharkhand from the Class - LKG and now he is studying in Class II. He filed the fee receipt of Class-LKG which is marked as Exhibits- A, A/1, A/2, A/3, A/4. He has further filed the fee receipts of UKG and it is marked as Exhibits-A/5, A/6, A/7. He further filed the tuition fee card of Sunny Murmu for the period of 2020-2021 and it is marked as Exhibit - B. He further filed tuition fee receipt of Class-2B for the period of 2022-2023 which is marked as Exhibits- A/8, A/9, A/10. He further filed the Class-2B tuition fee card which is marked as Exhibit-X for identification. He has further stated that plaintiff is an unemployed lady 24 2025:JHHC:21684-DB having no source of income and she is fully dependent upon her father and plaintiff's father is a simple homeopathic doctor having no sufficient means to give proper education and maintenance to his daughter's son (minor) Sunny Murmu. He has further stated that assertions made in the plaint regarding working in the clinic with her father in Pakuria and she being well versed in the female diseases is completely false. So far as defendants know the plaintiff has no valid license of practicing as a doctor. The plaintiff used to live at Monglabandh, P.S. Pakuria, District Pakur which is an interior place having no proper communication and facility of proper education and if Sunny Murmu lives under the custody of his mother he will not get proper education and his future will be dark and during the lifetime of Suraj Murmu, he and the plaintiff were divorced and the minor child was given under the custody of Suraj Murmu and since then, Sunny Murmu is living at his house under the care and custody of his father Suraj Murmu and thereafter under his care and custody. They are giving proper education to him and maintaining well and plaintiff never came to the defendants to take over the custody of the child nor filed any petition before any of the authority or in the Court to take over the minor in her custody and plaintiff wants to destroy the better life of the minor Sunny Murmu. He is a ration dealer having sufficient landed property and means to maintain the minor grandson Sunny Murmu by giving proper education and a better life. If the child Sunny Murmu given under the custody of the plaintiff, his life will be dark. He has further stated that the custody of minor is the pre-existing rights as because the plaintiff is a divorcee and in these circumstances the plaintiff is disqualified to be appointed as legal guardian in preference of grandfather as because the 25 2025:JHHC:21684-DB plaintiff is neglecting the minor Sunny Murmu from the very beginning. They are maintaining the minor-Sunny Murmu for his welfare and with utmost love and affection the sustenance and schooling are safe in their hands and he is the custodian and considering the welfare, sustenance and wellbeing of the minor which are the paramount considerations. The plaintiff is not entitled to get any relief as claimed for and the plaint of the plaintiff is fit to be dismissed with cost.

During cross-examination, at para 23 he has stated that the divorce of his son with his wife occurred but no paper was prepared at that time. He is running a PDS shop. In para 28 he stated that his son-in- law is Bimal Kisku. His daughter's name is Lakshmi Murmu who is the wife of Bimal Kisku. Lakshmi Murmu now lives with him and his daughter has a daughter namely Mailey Kisku aged about 10 years and she is studying at Sahibganj and the entire expenses was borne by his son in law. He merely listen that the marriage of Lakhimunni Marandi was solemnized with Bimal Kisku. In para 31 he stated that he has a 25 Bighas 12 Kattha 08 Dhur landed property at Chirudih Mouza and on that land he cultivate. In para 34 he has stated that now his grandson is about 09 years and at that time of admission of school his grandson was aged five years. If Lakhimunni Marandi demanded the child custody but they will not handover the custody of child. In para 43 he stated that he earns Rs. 15-20 thousand per month from the dealership of PDS shop and he received commission from the dealership.

36. D.W. 2 is Kapu Tudu defendant no.2 and grandmother of the minor Sunny Murmu has stated in her examination in chief on affidavit as stated by DW1 word by word, line by line so there is there no need to 26 2025:JHHC:21684-DB repeat the examination in chief of DW2 Kapu Tudu defendant no.2 and grandmother of the minor Sunny Murmu.

During cross-examination she stated that her son name was Surajmuni and his son died about four years ago. Lakhimunni Marandi is a literate and at the time of death of her son, Lakhimunni Marandi was not present there. She lived in the house of Matiablaze. Her son was doing the contractor job and her son giving the money for the study of his wife. Now the Sunny Murmu is living in her house and they take care from his childhood. In para 20 she has stated that in her house there is a four- wheeler and this was gifted by at the time of marriage of Suraj and Lakhimunni Marandi. In para 22 she has stated that there was no altercation between his son Suraj and daughter in law Lakhimunni Marandi. Her daughter in law mostly lived in her maikey. They do not want to give the custody of Sunny Murmu to Lakhimunni Marandi. In para 25 she has stated that her daughter's name is Lakshmi Murmu and her daughter is living with her. Her daughter has a daughter who is living with her father, namely, Bimal at Dhanbad. the second marriage of Lakhimunni Marandi was not solemnized in her presence. She merely has listened about it. The second marriage of Lakhimunni Marandi was solemnized with her son in law. In para-29 she has stated that at the life time of her son the divorce was taken place in between husband and wife but no paper was prepared because according to Santhali rites and custom no paper is required. In para 34 she has stated that when her son was alive then her son was praying for admission of Sunny Murmu in a school. In para 35 she has stated that there was a talk of compromise at police station 27 2025:JHHC:21684-DB and the child was asked where he want to live then the child replied that he want to live with his grandfather.

37. D.W.3 is Wakil Tudu stated in his examination in chief that it is true that the plaintiff married with defendant's son, namely, Suraj Murmu of Beliyadanga, Pakur on 13th April, 2010 as per Santhal Custom and Rites. It was an ideal marriage so there was no give and take between them. As per custom the defendants have given 6 Mann of paddy to the father of the plaintiff as Gonom. The father of the plaintiff has gifted costly articles mentioned in the schedule is totally false and baseless and the father of the plaintiff did not give any articles to Suraj Murmu or the defendants at the time of marriage. He has further stated that after marriage the plaintiff came to the house of her husband and led a peaceful conjugal life for 5 years and due to their wedlock a son was born on 17.08.2013 whose name is Sunny Murmu and after the birth of the son, the plaintiff began to create trouble to the son of the defendants to settle at Sasural at Monglabandh, P.S. Pakuria, District - Pakur being separate from his parents which was denied by the defendant's son Suraj Murmu. As a result, the plaintiff refused to live at Beliyadanga in the house of the defendants as a result of which a dispute was cropped up. The defendants and their son tried to reconcile the matter but in vain and their son went several times to bring her back but she did not come. Lastly the plaintiff and her parents put a proposal before the defendant's and their son for divorce. Thereafter, a Gramin Baithak was held on 2nd of December, 2017 in the village Beliyadanga and both the plaintiff and the defendants' son Suraj Murmu divorced each other by pouring the water from the leg and by tearing the sal leaves in the presence of the parents of both husband and wife and 28 2025:JHHC:21684-DB villagers and defendants of her family did not accept the son Sunny Murmu as a result of which Sunny began to live with his father Suraj Murmu who took care of his son under the guidance of the parents. He has further stated that suddenly on 13th November, 2018 the son of the defendants namely "Suraj Murmu died and after the death of Suraj Murmu his minor son- Sunny Murmu began to live with his grandparents (defendants) and plaintiff never took care nor she came to meet with her son Sunny Murmu from the date of divorce to till date and even on the death of her husband the plaintiff did not turn up. Plaintiff neither came to see the face of the deceased nor came to see her minor son Sunny Murmu from the date of divorce. He has further stated that Lakhimunni Marandi was married with Vimal Kisku son of Wilson Kisku of Dhanbad, P.S. Hiranpur, District- Pakur and she lives at her SASURAL and off and on she visits her father's house and as such question of assaulting and terrorizing on the part of Lakshmi Murmu does not arise. A divorce has been commenced between the defendants' son Suraj Murmu and the plaintiff much earlier i.e on 02.11.2016 and the plaintiff lives with her father at Monglabandh, P.S. Pakuria, District Pakur so the question of torture and demand does not arise. The minor Sunny Murmu is living under the care and custody of his father Suraj Murmu and after the death of Suraj Murmu, Sunny Murmu is living with the defendants and is reading in class U.K.G. at St. Joseph English Medium School, Pakur. After expiry of three years the plaintiff filed her child this petition for the custody of her child only with a view to ruin his life with a malafide intention which is very suspicious. Child Sunny Murmu want to live with grandfather and grandmother. 29

2025:JHHC:21684-DB During cross-examination he has stated that in para 13 that he does not know what is written in the affidavit. He asked to put his signature on it then he put his signature. He has been brought by Baburam Murmu for deposition before the Court and he is giving the evidence as stated by Baburam.

38. D.W. 4 is Sunil Tudu who has reiterated the statement as narrated by DW3 in his evidence so there is no need to repeat the examination-in- chief of DW4.

During cross-examination he has stated that in para 17 that he cannot say the date, month of death of Suraj Murmu but the year was 2018. In para 21 he stated that Baburam Murmu is living in his village street and he usually visit his house. Baburam Murmu is a PDS dealer. In para 23 he has stated that the name of the son of Baburam Murmu is Suraj Murmu and Suraj Murmu has one son namely Sunny Murmu and the name of mother of Sunny Murmu is Lakhimunni Marandi who is the plaintiff of this case. Sunny Murmu is studying in Class-II in St. Joseph School.

39. This Court on appreciation of the arguments advanced on behalf of the parties is now proceeding to consider that who will have the better claim, i.e., the grand-parents or the mother(appellant herein) for the welfare of the child, but before consideration of the aforesaid issue, this Court needs to refer herein the statutory provision of Hindu Minority and Guardianship Act, 1956 which runs as follows:

"6. Natural guardians of a Hindu minor.--The natural guardians of a Hindu minor; in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are-- (a) in 30 2025:JHHC:21684-DB the case of a boy or an unmarried girl--the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl--the mother, and after her, the father; (c) in the case of a married girl--the husband:

Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-- (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.-- In this section, the expressions "father" and "mother" do not include a step-father and a step- mother.

9. Testamentary guardians and their powers.--(1) A Hindu father entitled to act as the natural guardian of his minor legitimate children may, by will appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property (other than the undivided interest referred to in section 12) or in respect of both. (2) An appointment made under sub-section (1) shall have no effect if the father predeceases the mother, but shall revive if the mother dies without appointing, by will, any person as guardian. (3) A Hindu widow entitled to act as the natural guardian of her minor legitimate children, and a Hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of the fact that the father has become disentitled to act as such, may, by will, appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property (other than the undivided interest referred to in section 12) or in respect of both. (4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may; by will, appoint a guardian for any of them in respect of the minor's person or in respect of the minor's property or in respect of both. (5) The guardian so appointed by will has the right to act as the minor's guardian after the death of the minor's father or mother, as the case may be, and to exercise all the rights of a natural guardian under this Act to such extent and subject to such restrictions, if any, as are specified in this Act and in the will. (6) The right 31 2025:JHHC:21684-DB of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage.

13. Welfare of minor to be paramount consideration.--

(1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. (2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor."

40. It needs to refer herein that the word "after‟ as used in Section 6(a) can be construed so as to save it from being unconstitutional the presumption being that the legislature acted in accordance with the constitution. Moreover, when Sections 4 and 6 of the Hindu Minority and Guardianship Act are construed harmoniously the word "after‟ can be understood to mean in the absence of, thereby referring to father's absence from the care of the minor's property or person for any reason whatever.

41. It is evident from the mandate of the said Statute that although the father has been made natural guardian but how to make balance in awarding the custody of the minor, the wellbeing consideration even in the Statute has been mandated by inserting the provisions under section 13 thereof.

42. It is evident from Section 13 that while appointing any person as guardian of a Hindu minor the paramount consideration is the welfare of the minor and no person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor. 32

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43. Section 13 of the Act of 1956 is very specific that there cannot be compromise on the issue of the welfare of the minor even though the father is natural guardian in view of the provision of section 6 of the Hindu Minority and Guardianship Act, 1956.

44. The relevance of provision of section 13 of the Act of 1956 has got bearing in the matter of custody of the minor if the sub-section 2 of section 13 will be taken into consideration wherein the word starts "No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the Court is of opinion that his or her guardianship will not be for the welfare of the minor", meaning thereby, it is onus upon the Court to come to the satisfaction by making out a concrete opinion regarding the issue of the welfare of the minor.

45. The law, therefore, is well settled that even though the father is the natural guardian as stipulated in the statute but the paramount consideration in the matter of handing over the custody of the child is welfare of the child.

46. At this juncture it would be apt to referred the relevant provisions of Guardians and Wards Act,1890, which reads as under:

7. Power of the Court to make order as to guardianship.--(1) Where the Court is satisfied that is for the welfare of a minor that an order should be made--

(a) appointing a guardian of his person or property, or both, or

(b) declaring a person to be such a guardian, the court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

2025:JHHC:21684-DB (3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.

17. Matters to be considered by the Court in appointing guardian.-- (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Court shall have regard the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.

(4) 22[* * *] (5) The Court shall not appoint or declare any person to be a guardian against his will.

47. Thus, even from perusal of section 17 of Act 1890 it is evident that in appointing or declaring the guardian of a minor, the Court under the provisions of this section, be guided by the welfare of the minor.

48. The law relating to custody of minors has received an exhaustive consideration by the Hon'ble Apex Court in a series of pronouncements. In the case of Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 the principles of English and American law in this regard were considered by Hon'ble Apex Court to hold that the legal position in India is not in any way different. Noticing the judgment of the Bombay High Court in Saraswatibai Shripad Ved v. Shripad Vasanji 34 2025:JHHC:21684-DB Ved [AIR 1941 Bom 103] , Rosy Jacob v. Jacob A. Chakramakkal (1973) 1 SCC 840 and Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka (1982) 2 SCC 544, the Hon'ble Apex eventually concluded in paras 50 and 51 which reads as under:

"50. [T]hat when the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mausami Moitra Ganguli case [Mausami Moitra, the court has to give due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.

51. The word „welfare‟ used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well-being. Though the provisions of the special statutes which govern the rights of the parents and guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases."

49. Thus, the Hon'ble Apex Court has categorically held that while considering the issue of custody of the minor child the court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. Further it has been held that the Court should not emphasis only on what the parties say rather the welfare of the minor should be paramount consideration. Further the Hon'ble Apex Court has opined that the Court has to give due weightage to the child's ordinary contentment, health, education, intellectual development and 35 2025:JHHC:21684-DB favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted.

50. The Hon'ble Apex Court in the aforesaid Judgment interpreted the word "welfare" used in Section 13 of the Act and has observed that it must be taken in its widest sense, though the provisions of the special statutes which govern the rights of the parents and guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its "parens patriae jurisdiction" arising in such cases.

51. It needs to refer herein that in child custody matters, the court's "parens patriae" jurisdiction empowers the Court to act as a guardian for the child, prioritizing their best interests above all else. This principle, allows the court to intervene and make decisions that protect the child's welfare, even if it means overriding the wishes of the parents or guardians.

52. In the case of Nil Ratan Kundu v Abhijit Kundu, 2008 (9) SCC 413 the Hon'ble Apex Court has held that in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and wellbeing of the child. In selecting a guardian, the court is exercising "parens patriae jurisdiction" and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above 36 2025:JHHC:21684-DB physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.

53. In the case of Yashita Sahu v State of Rajasthan, (2020) 3 SCC 67, the Hon'ble Apex Court has propounded that the welfare of the child is paramount in matters relating to custody. In this context, we may refer to Para 22 thereof, which reads as follows:

22. A child, especially a child of tender years requires the love, affection, company, protection of both parents. This is not only the requirement of the child but is his/her basic human right. Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. A child is not an inanimate object which can be tossed from one parent to the other. Every separation, every reunion may have a traumatic and psychosomatic impact on the child. Therefore, it is to be ensured that the court weighs each and every circumstance very carefully before deciding how and in what matter the custody of the child should be shared between both the parents. Even if the custody is given to one parent the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical and psychological contact with any one of the two parents. It is only in extreme circumstances that one parent should be denied contact with the child. Reasons must be assigned if one parent is to be denied any visitation rights or contact with the child. Courts dealing with the custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights.'

54. In the case of Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471, the Hon'ble Apex Court has observed that it is the welfare and interest of 37 2025:JHHC:21684-DB the child and not the rights of the parents which is the determining factor for deciding the question of custody and the question of welfare of the child has to be considered in the context of the facts of each case and decided cases on the issue may not be appropriate to be considered as binding precedents. For ready reference the relevant paragraph of the aforesaid judgment is being quoted as under:

14. From the above it follows that an order of custody of minor children either under the provisions of the Guardians and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956 is required to be made by the court treating the interest and welfare of the minor to be of paramount importance. It is not the better right of either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the parent concerned to take care of the child are some of the relevant factors that have to be taken into account by the court while deciding the issue of custody of a minor. What must be emphasised is that while all other factors are undoubtedly relevant, it is the desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the court.

55. It is settled position of law that there cannot be any straitjacket formula in the matters of custody. "Welfare of the child" is of paramount importance, reference in this regard may be taken from the judgment rendered by the Hon'ble Apex Court in the case of Gautam Kumar Das v. State (NCT of Delhi), (2024) 10 SCC 588.

56. In the case of Shazia Aman Khan v. State of Orissa, (2024) 7 SCC 564 the Hon'ble Apex Court while referring the ratio of Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413 has observed that welfare of 38 2025:JHHC:21684-DB the children is to be seen and not the rights of the parties, the relevant paragraph of the aforesaid judgment is being quoted as under:

19. In Nil Ratan Kundu v. Abhijit Kundu [Nil Ratan Kundu v.

Abhijit Kundu, (2008) 9 SCC 413] , this Court laid down the principles governing custody of minor children and held that welfare of the children is to be seen and not the rights of the parties by observing as under : (SCC pp. 428-29, paras 52 & 55) "Principles governing custody of minor children

52. In our judgment, the law relating to custody of a child is fairly well-settled and it is this. In deciding a difficult and complex question as to the custody of minor, a court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.

***

55. We are unable to appreciate the approach of the courts below. This Court in a catena of decisions has held that the controlling consideration governing the custody of children is the welfare of children and not the right of their parents." (emphasis supplied)

21. This Court in Roxann Sharma v. Arun Sharma [Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318 : (2015) 4 SCC (Civ) 87] , opined that the child is not a chattel or ball that it is bounced to and fro. Welfare of the child is the focal point. Relevant lines from para 18 are reproduced hereunder : (SCC p. 328) 39 2025:JHHC:21684-DB "18. ... There can be no cavil that when a court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child's welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the mother and this expectation can be deviated from only for strong reasons."

20. This Court has consistently held that welfare of the child is of paramount consideration and not personal law and statute. In Ashish Ranjan v. Anupma Tandon [Ashish Ranjan v. Anupma Tandon, (2010) 14 SCC 274 : (2011) 4 SCC (Civ) 948] , this Court held as under : (SCC p. 282, para 19) "19. The statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor."

22. Another principle of law which is settled with reference to custody of the child is the wish of the child, if she is capable of. Reference Gowda v. State can of be made to Rohith Thammana Karnataka [Rohith Thammana Gowda v. State of Karnataka, (2022) 20 SCC 550 : 2022 SCC OnLine SC 937] case. It was held as under : (SCC para 18) "18. We have stated earlier that the question "what is the wish/desire of the child‟ can be ascertained through interaction, but then, the question as to "what would be the best interest of the child‟ is a matter to be decided by the court taking into account all the relevant circumstances. A careful scrutiny of the impugned judgment would, however, reveal that even after identifying the said question rightly the High Court had swayed away from the said point and entered into consideration of certain aspects not relevant for the said purpose. We will explain the raison d'etre for the said remark."

57. It needs to refer herein that Welfare comprehends optimal growth and development of personality of child. Welfare of child is the prime consideration for appointment of guardian. Psycho-social as also physical development of child for shaping of an independent personality is foremost 40 2025:JHHC:21684-DB concern of court as parens patriae in deciding grant of custody of child. Parental Alienation Syndrome, what is, and its relevance in deciding child custody has been explained by the Hon'ble Apex Court in the case of Vivek Singh v. Romani Singh, (2017) 3 SCC 231. For ready reference the relevant paragraph is being quoted as under:

18.-------Psychologists term it as "The Parental Alienation Syndrome"

[ The Parental Alienation Syndrome was originally described by Dr Richard Gardner in "Recent Developments in Child Custody Litigation", The Academy Forum, Vol. 29, No. 2 : The American Academy of Psychoanalysis, 1985.] . It has at least two psychological destructive effects:

(i) First, it puts the child squarely in the middle of a contest of loyalty, a contest which cannot possibly be won. The child is asked to choose who is the preferred parent. No matter whatever is the choice, the child is very likely to end up feeling painfully guilty and confused. This is because in the overwhelming majority of cases, what the child wants and needs is to continue a relationship with each parent, as independent as possible from their own conflicts.

(ii) Second, the child is required to make a shift in assessing reality. One parent is presented as being totally to blame for all problems, and as someone who is devoid of any positive characteristics. Both of these assertions represent one parent's distortions of reality.

58. Thus, from the aforesaid settled position of law it is evident that the consideration governing the custody of children is the welfare of the children" and not the rights of the parties." Further, the welfare of child is determined neither by economic affluence nor a deep mental or emotional concern for the well-being of the child. The answer depends on the balancing of all these factors and determining what is best for child's total well-being.

59. In the backdrop of the aforesaid settled position of law this Court is now adverting to the factual aspect of the present case in order to asses as to the whether the findings so recorded by the learned Family Judge can 41 2025:JHHC:21684-DB be said to suffer from an error by giving go by to the mandate of section of the Hindu Minority and Guardianship Act, 1956 and further as to whether while forming an opinion not to hand over the custody of the minor, the learned Family Judge has committed an error by giving go by to the provision of section 13 of the Hindu Minority and Guardianship Act, 1956.

60. Admittedly herein the appellant is trained nurse and she is literate lady. Further appellant has in totally denial of her second marriage and further no cogent evidence has been brought on record by the defendants that appellant has solemnized her second marriage. However, it is settled position of law that the second marriage of either of the parent cannot dis- entitle him/her to the custody of his/her children but the children are not compelled to adjust with their stepfather/stepmother till the guardianship application is disposed of. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in the case of Athar Hussain v. Syed Siraj Ahmed, (2010) 2 SCC 654.

61. Further it has come on record that the parties are governed by Santhal Customary law wherein the plaintiff mother is representative of the deceased husband and has right to take care of her minor son, bring him up and educate properly. Further it is evident from the appellant's father that he is ready to support her daughter (appellant herein) at any extent.

62. It needs to refer herein that avowedly, the mother is best suited to care for her offspring, so aptly and comprehensively conveyed in Hindi by the word "mamta". Furthermore, recognising her maternity would obviate the necessity of determining paternity. In situations such as this, 42 2025:JHHC:21684-DB where the father is of minor is no more and the grands parents are since old aged persons therefore in such situation the role of mother become more important from the future point of view of the minor.

63. The aforesaid discussion leads us to feel that continuous company of the mother with child, is absolutely essential.

64. The Hon'ble Apex Court while drawing the importance of mother as guardian and best suited person for custody of minor child has observed in the case of Vivek Singh v. Romani Singh (supra) that it may also be underlying that the notion that a child's primary need is for the care and love of its mother, where she has been its primary care giving parent, is supported by a vast body of psychological literature. Empirical studies show that mother-infant "bonding" begins at the child's birth and that infants as young as two months old frequently show signs of distress when the mother is replaced by a substitute caregiver. An infant typically responds preferentially to the sound of its mother's voice by four weeks, actively demands her presence and protests her absence by eight months, and within the first year has formed a profound and enduring attachment to her. Psychological theory hypothesizes that the mother is the centre of an infant's small world, his psychological homebase, and that she "must continue to be so for some years to come". Developmental psychologists believe that the quality and strength of this original bond largely determines the child's later capacity to fulfil her individual potential and to form attachments to other individuals and to the human community.

65. This Court,therefore, is of the view that the learned Family Court while determining the issue of custody has completely overlook the welfare of child by negating the claim of mother (appellants herein) who 43 2025:JHHC:21684-DB are the biological mother of child and educated and self-dependent lady therefore, the judgment dated 28.01.2023 and the decree dated 10.02.2023 passed in Original Suit No.02 of 2020 by the learned Family Judge suffers from an error and needs interference and, accordingly, set aside.

66. The instant appeal is hereby allowed.

67. Pending I.As, if any, stands disposed of.

(Sujit Narayan Prasad, J.) I Agree.

(Rajesh Kumar, J.) (Rajesh Kumar, J.) Sudhir Dated:01/08/2025 Jharkhand High Court, Ranchi AFR 44

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