Jharkhand High Court
Prashanti Saha vs Ranjan Saha on 14 August, 2025
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:23883-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 253 of 2023
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1. Prashanti Saha, aged about - 31 yrs, D/o. Late Gautam Sil
R/o. Retired colony, Ward No. 17, Town - Chakradharpur, P.O.
+ P.S. - Chakradharpur, Dist: West Singhbhum, Jharkhand
2. Adiwitiya Saha, aged about - 9 yrs, D/o. Ranjan Saha &
Prashanti Saha, minor represented through her mother/
guardian, R/o. Retired colony, Ward No. 17, Town -
Chakradharpur, P.O. + P.S. - Chakradharpur, Dist: West
Singhbhum, Jharkhand
... Appellants/Respondents
Versus
Ranjan Saha, S/o. Gour Chandra Saha, R/o. Bauria,
Santoshpur, P.O. + P.S. - Bauria, Dist: Howrah, West Bengal
... Respondent/Petitioner
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Mr. Abhishek Kumar Dubey, Advocate
For the Respondent : Mr. Amit Kumar Sinha, Advocate
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CAV on 7th July, 2025 Pronounced on 14th August, 2025
Per Sujit Narayan Prasad, J.:
1. The instant appeal has been filed under Section 19(1) of the Family Courts Act, 1984 against the judgment and decree dated 13.07.2023 and 21.07.2023, respectively passed by the learned Principal Judge, Family Court, Chaibasa in Original Suit No. 24 of 2023 whereby and whereunder, the original suit filed by the 1 2025:JHHC:23883-DB respondent/petitioner has been allowed and the appellant/respondent no.1 was directed to handover the custody of her daughter (appellant No.2 herein) to the respondent/petitioner.
Factual Matrix
2. The brief facts of the case, as per the pleading made in the plaint is required to enumerated herein which reads as under:
3. The marriage between the appellant No. 1 and respondent was solemnized on 12.12.2010, as per provision of Special Marriage Act 1954. Out of their wedlock one daughter namely, Adiwitiya Saha was born on 08.05.2015.
4. In the month of August 2018, disputes and differences cropped up amongst the appellant no.1 and respondent and it was not possible for them to lead marriage life peacefully, thereafter an application under Section 13(i)(ia)(ib) of H.M.A. and under Section 125 of Cr.P.C. for maintenance was filed by appellant no.1, against the respondent which was numbered as Original Maintenance Case No. 41/2018 which have been disposed of on 02.03.2022 as the case has been settled between the parties in National Lok Adalat.
5. The award of the Lok Adalat had following terms:
a. Appellant No.1 shall not receive any amount as alimony from Respondent.
b. Appellant No. I shall also not claim or receive any monthly maintenance from Respondent.
c. Respondent shall pay a monthly maintenance of Rs.5000/- to 2 2025:JHHC:23883-DB the minor girl child and appellant No. 1 shall pay a monthly amount of Rs.2000/-
d. Respondent was given the visiting rights of the minor daughter at Chakradharpur. Also, he was given liberty to keep his daughter for 15 days during annual vacation.
6. Thereafter on the intervention of common friends and well- wisher, both parties mutually decided with consent to dissolve their marriage by mutual consent U/s 28 of Special Marriage Act.
7. Thereafter, Appellant No. 1 and respondent jointly filed a case to dissolve their marriage by mutual consent U/s 28 of Special Marriage Act being Original Case No. 22/2022 and the same was decreed vide Judgment dated 25.11.2022 and decree dated 07.12.2022.
8. Later on Respondent instituted a suit being O S No. 24/2023 by filing a petition u/s 25 of Guardian and Wards Act 1890 seeking custody of the minor daughter (Appellant No2) alleging that appellant No. 1 has not complied with the term of the order of Lok Adalat whereby visiting rights of the minor daughter was given to the respondent and has further stated that Appellant No.1 (wife) did not drop the daughter at the house of petitioner/Husband (respondent herein)
9. Accordingly learned family Court issue notice to the appellant no.1 and pursuant to the notice appellant No.1 filed her written statement denying the contentions raised by the Respondent / petitioner and further stated that only to frustrate the condition of monthly payment of Rs.5000/- to appellant No.2 (Daughter), 3 2025:JHHC:23883-DB as mutually agreed in terms of order dated 02.02.2023 passed in Lok Adalat in O.M.C. No. 41/2018, the guardianship case was instituted.
10. Thereafter, the learned Principal Judge, Family Court, West Singhbhum at Chaibasa, after hearing the parties and appreciating the evidence available on record as also the testimonies of the witnesses, has allowed the suit, in which the respondent (herein) was granted the custody of minor child, against which the present first appeal has been preferred. Submissions advanced by the learned counsel for the appellants:
11. Learned counsel for the appellant has submitted that once the matter was settled by and between the parties and award dated 02.03.2022, passed in OMC No.41/2018 (Ext.1) was already prepared wherein the terms and conditions were interlinked and custody of the child(minor daughter/appellant no.2) was to remain with mother (Appellant No. 1) and respondent was given visitation rights, it was not open for Respondent to file a fresh suit claiming guardianship of the minor daughter as same was barred even on the principle of res-judicata.
12. Further, the learned counsel for the appellants has submitted that award of the Lok-Adalat was based on the consideration that Appellant No. 1 (Wife) shall keep the custody of daughter and Husband (Respondent) shall have visitation rights. Upon this condition appellant No. 1 agreed to forgo the alimony as 4 2025:JHHC:23883-DB well as maintenance amount and also agreed for mutual divorce and after getting the divorce, Respondent has purposely filed this case, so that he does not have to give even Rs.5000/ month to the daughter which act itself is mischievous. Further, the whole decree of the Lok Adalat would become nugatory, if husband is allowed to breach the terms and conditions of the award.
13. It has further been contended that the argument of the Respondent that appellant No.1 was denying him the visitation rights is not tenable and same is not a ground for filing a fresh case as award of Lok Adalat is an executable decree and respondent could have approached executing court for enforcement of his visitation rights and as such fresh case for custody of minor daughter was not maintainable.
14. Further, the respondent has not been helping in any mode for the upbringing of the daughter Adiwitiya Saha (appellant no.2 herein).
15. It has further been submitted that in a guardianship case, child's welfare carries the paramount importance as has been held by the Hon'ble Supreme court in catena of decisions but in the present case, the learned family court has completely ignored this aspect.
16. The learned counsel for the appellant has submitted that Adiwitiya Saha is minor and there is biological changing in her body, so she needs the love and affection of her appellant 5 2025:JHHC:23883-DB mother and the respondent is not capable to take all the responsibilities of minor girl, hence the custody should be given to appellant No. 1.
17. The learned counsel based upon the aforesaid grounds has submitted that the impugned judgment, therefore, is not sustainable in the eyes of law and it requires interference by this Court.
Submissions advanced by the learned counsel for the respondent:
18. The learned counsel for the respondent has submitted that the appellant No. 1, herein, has no job and she is unemployed and she has deposed in cross-examination in Original Maintenance Case No. 41/2018 that Riyu's Roop Top Kitchen does not belong to her and she is not working there.
19. Further, submission has been made that the respondent is a retired person from Army and is getting pension of Rs. 23,000/- per month, hence he is fully competent and has capacity to provide the proper higher education and has sufficient means to take proper care of his daughter (appellant no.2).
20. 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.
Analysis:
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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. It is evident from record that the marriage between the appellant No. 1 and respondent was solemnized on 12.12.2010, as per provision of Special Marriage Act 1954. Out of their wedlock one daughter namely, Adiwitiya Saha(appellant no.2) was born on 08.05.2015. In the month of August 2018, disputes and differences cropped up amongst the appellant no.1 and thereafter an application under Section 13(i)(ia)(ib) of H.M.A. and under Section 125 of Cr.P.C. for maintenance was filed by appellant no.1, against the respondent which was numbered as Original Maintenance Case No. 41/2018 which have been disposed of on 02.03.2022 as the case has been settled between the parties in National Lok Adalat.
23. As per the term of settlement appellant No.1 shall not receive any amount as alimony from Respondent and shall also not claim or receive any monthly maintenance from Respondent. Respondent shall pay a monthly maintenance of Rs.5000/- to the minor girl child and appellant No. 1 shall pay a monthly amount of Rs.2000/- Respondent was given the visiting rights of the minor daughter at Chakradharpur. Also, he was given liberty to keep his daughter for 15 days during annual vacation.
24. Thereafter, Appellant No. 1 and respondent jointly filed a case to dissolve their marriage by mutual consent U/s 28 of Special Marriage Act being Original Case No. 22/2022 and the same was decreed vide Judgment dated 25.11.2022 and decree dated 7 2025:JHHC:23883-DB 07.12.2022.
25. Later on Respondent instituted a suit being O S No. 24/2023 by filing a petition u/s 25 of Guardian and Wards Act 1890 seeking custody of the minor daughter (Appellant No2) alleging that appellant No. 1 has not complied with the term of the order of Lok Adalat whereby visiting rights of the minor daughter was given to the respondent and has further stated that Appellant No.1 (wife) did not drop the daughter at the house of petitioner/Husband (respondent herein)
26. Accordingly learned family Court issue notice to the appellant no.1 and pursuant to the notice appellant No.1 filed her written statement denying the contentions raised by the Respondent / petitioner.
27. Before family Court, on behalf of the Respondent, he examined himself as the sole witness and also exhibited Award of the Lok Adalat dated 02.03.2022, passed in O.M.C No.41/2018 as Ext. 1. On behalf of the appellants, altogether 3 witnesses were examined:
(I) RW1-Prashanti Saha
(II) RW 2-Adiwitiya Saha
(III) R.W.3- Lipika Sil
28. On the basis of the pleading of the parties, the learned Family Judge has formulated altogether five issues, for ready reference the same are being quoted hereinbelow:
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i) Whether the suit is maintainable in its present form?
ii) Whether the Petitioner has got valid cause of action for the suit?
iii) Whether the petitioner Ranjan Saha is entitled the custody of minor Adiwitiya Saha being the natural guardian/father of minor aged about 08 years?
iv) Whether the welfare of minor is remain with her mother or the custody of minor should be handed over to petitioner/father?
v) Whether the petitioner/plaintiff is entitled to get relief/ reliefs as prayed for?
29. Thereafter, the learned Principal Judge, Family Court, West Singhbhum at Chaibasa, after going through the evidence, has decided all the issues in favour of Respondent and vide judgment and decree dated 13.07.2023 &. 21.07.2023 respectively, the learned family Court has allowed the suit instituted by the Respondent u/s 25 of Guardian and Ward Act by holding that Respondent is entitled to get custody of his minor daughter Adiwitiya Saha (appellant no.2) and has further directed appellant No. 1 to handover the custody of Adiwitiya Saha on 01.05.2024 (After completion of present academic session 2023-24, till then she will remain with her mother). It has further been ordered that appellant No.1 shall have liberty to visit the minor daughter once in a month either in respondent's house or in the premises of mutual friend as may be agreed. Appellant No.1/mother has been given further liberty to take her minor daughter out with her for a day and to bring them back to the petitioner's house before sunset along with 15 days temporary custody during annual vacation. Against the aforesaid order and decree the present first appeal has been 9 2025:JHHC:23883-DB preferred by the appellant/mother.
30. This Court in order to appreciate the aforesaid rival submission of the learned counsel for the parties, 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. For better appreciation, the evidences led on behalf of the parties is being referred as under:
31. P.W.-1 Ranjan Saha (respondent herein) has deposed that he has filed the instant suit for taking custody of his minor daughter Adiwitiya Saha, aged about 8 years. Prashanti Saha (Appellant No. 1 herein) is not properly upbringing his daughter. Prashanti Saha did not permit him to meet with his daughter. The Court has directed to meet him with his daughter twice in a month as well as to spent fifteen days with his daughter during annual vacation, but the mother of the daughter is neither permitting him to meet with his daughter nor sending Adiwitiya Saha to live with him. Prashanti Saha is disobeying the order of the Court. He is facing mental tension due to not permitting him to meet with his daughter. He wants to take custody and guardianship of his daughter for her betterment, nourishment and good upbringing.
During cross-examination, P.W. 1 deposed that his daughter is the student of class III in Navbharat School, Chakradharpur. He has not attended parents-teacher meeting ever. The witness further deposed that he has no knowledge that how many maintenance amount is lying due on him. The witness deposed that he is retired 10 2025:JHHC:23883-DB from Army. He has further deposed that he has no knowledge that there is quota in Central School for the children of Army personnels. The witness clearly deposed in para-14 that he did not give PPO for the admission of his daughter in Central School as Prashanti Saha was not obeying the order of the Court. He further deposed that he has not solemnized her second marriage after divorce with Prashanti Saha. The witness also deposed that his father is of old age and mother is also aged about 60 years. He further deposed that he gets Rs. 23,000/- as pension. Further, deposed that his wife (since divorced) and mother-in-law are running a hotel business in the name of Riyu's Kitchen. P.W. 1 further deposed that lastly, he phoned his daughter on 08.05.2023. Further, he deposed that whenever he went to Chakradharpur to meet his daughter, he was not permitted to meet with her. The P.W. 1 deposed in that the actual age of his daughter is 10 years, but in certificate she is aged about 08 years. His daughter was born in the year 2013, at the time of admission, it was written as 2015. Her date of birth certificate also bears the year 2015.
32. R.W.-1 Prashanti Saha, (appellant No. 1 herein) has deposed that Ranjan Saha has filed the instant suit for the guardianship of his daughter. She further deposed that her daughter is aged about 09 years and presently, studying in Class 04th in Navbharat Public School, Chakradharpur. His daughter is also learning dancing, music, drawing and Taekwondo. R.W. 1 further deposed that she is upbringing her daughter with full care and properly focusing on her education. She gets first position in Class. She further deposed that she shares her hand 11 2025:JHHC:23883-DB in the business of her mother, which is running in the name of Riyu's Kitchen. She further deposed that her daughter feels safe and protective under her guardianship. Presently, there is change in physical and mental behavior of her daughter, therefore, it would be proper to remain with her. The witness deposed in para-8 that it was compromised between her and respondent (herein) that she would deposit Rs. 2,000/-per month and the respondent (herein) would deposit Rs. 5,000/- per month in the name of daughter (appellant No. 2 herein), but the respondent is not paying since last six months. It was also resolved that respondent shall come to meet with his daughter twice in a month, but it is wrong to say that she is not permitting him to meet with daughter. R.W. 1 further deposed that it is wrong to say that the respondent had come to meet with his daughter in the month of January 2023, but she did not permit to petitioner to meet his daughter.
33. During cross-examination, R.W. 1 deposed in para-20 that an award was passed in OMC No. 41/2018 where it was mentioned that Ranjan Saha would keep his daughter 15 days in annual vacation. She further deposed that it is wrong to say that she did not send her daughter to the house of respondent as he did not come to take her. She further deposed that it is wrong to say that she has not sent her daughter to the house of respondent on the pretext of extra-curricular activity of her daughter. She deposed that she used to engage in social activity as well as also busy in the business of her mother. She deposed that it is wrong 12 2025:JHHC:23883-DB to say that there is abstraction in the physical and mental development of daughter and her daughter is not getting proper education.
34. R.W.-2 Adiwitiya Saha (appellant no.2 herein), who appeared before the court on 05.07.2023 and some query was made by the court with Adiwitiya Saha where it was found that she is the student of Class 4th and she is presently residing with her mother and maternal grand-mother. She has stated that her mother runs restaurant and her maternal grand-mother does billing in restaurant. She expressed her view that she has not to live with her father as she is not comfortable with her father. She has stated that she can share her thoughts with her mother, but cannot share her feeling with her father. Adiwitiya Saha answered in a question that she has not to go with her father as he asked so many absurd questions. In another question, Adiwitiya Saha replied that she dislikes her father. She can live without her father but can't live without her mother.
35. R.W.-3 Lipika Sil deposed that Prashanti Saha is her daughter. Ranjan Saha was her son-in-law. Both got divorced from each other. One daughter namely, Adiwitiya Saha was born, who is presently residing with her mother. R.W. 3 further deposed that she runs a business in the name of Riyu's Kitchen and her daughter assists her too. She further deposed that Prashanti Saha is properly caring and looking after her daughter. Adiwitiya Saha is learning dancing, music and Taekwondo in addition to regular education. She further deposed that if 13 2025:JHHC:23883-DB Adiwitiya Saha is willing to meet her father then she has no objection. Ranjan Saha had come to meet with his daughter 1-2 times.
36. During cross-examination, the R.W. 3 deposed that Prashanti Saha had not gone with her daughter to the house of Ranjan Saha during annual vacation. She further deposed that Adiwitiya Saha gets engaged herself on whole Sunday in extra- curricular activities. She further deposed that Prashanti Saha has no employment and she is doing the course of law. She further deposed that Prashanti Saha also used to busy in social activities. She further deposed that it is wrong to say that they are not permitting Ranjan Saha to meet with his daughter as well as they used to return the clothes which was given by Ranjan Saha to his daughter.
37. This Court on appreciation of the arguments advanced on behalf of the parties as well as evidences led by the parties before the learned Family Court which has been referred in preceding paragraphs is now proceeding to consider that who will have the better claim, i.e., the father(respondent herein) 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 provisions 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 the case of a boy or an unmarried girl--the father, and after him, the mother: provided that the custody of a minor 14 2025:JHHC:23883-DB 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.
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."
38. 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.
39. 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 15 2025:JHHC:23883-DB in the Statute has been mandated by inserting the provisions under section 13 thereof.
40. 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.
41. 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.
42. 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.
43. The law, therefore, is well settled that even though the father is the natural guardian as stipulated in the statute but the paramount 16 2025:JHHC:23883-DB consideration in the matter of handing over the custody of the child is welfare of the child.
44. 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.
(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[* * *] 17 2025:JHHC:23883-DB (5) The Court shall not appoint or declare any person to be a guardian against his will.
45. 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.
46. 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 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 18 2025:JHHC:23883-DB 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.
47. 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 favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted.
48. 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.
49. 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 19 2025:JHHC:23883-DB decisions that protect the child's welfare, even if it means overriding the wishes of the parents or guardians.
50. 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 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.
51. 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 20 2025:JHHC:23883-DB 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.'
52. 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 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:
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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.
53. 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.
54. 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 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 22 2025:JHHC:23883-DB 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) "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 23 2025:JHHC:23883-DB 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."
55. 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 concern of court as parens patriae in deciding grant of custody of child. Parental Alienation Syndrome, what is, and its relevance in deciding 24 2025:JHHC:23883-DB 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.
56. 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.
57. 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 assess as to the whether the findings so recorded by 25 2025:JHHC:23883-DB the learned Family Judge can 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 to hand over the custody of the minor to the respondent, 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.
58. Before entering into merit of the case it would be apt to refer herein the admitted fact of the present lis which is as follows:
(i) The marriage between the appellant No. 1 and respondent was solemnized on 12.12.2010, as per provision of Special Marriage Act 1954. Out of their wedlock one daughter namely, Adiwitiya Saha was born on 08.05.2015.
(ii) Original Maintenance Case No. 41/2018 filed by the Appellant has been disposed of on 02.03.2022 as the case has been settled between the parties in National Lok Adalat in the following term :
a. Appellant No.1 shall not receive any amount as alimony from Respondent.
b. Appellant No. 1 shall also not claim or receive any monthly maintenance from Respondent.
c. Respondent shall pay a monthly maintenance of Rs.5000/- to the minor girl child and appellant No. 1 shall pay a monthly amount of Rs.2000/-26
2025:JHHC:23883-DB d. Respondent was given the visiting rights of the minor daughter at Chakradharpur. Also, he was given liberty to keep his daughter for 15 days during annual vacation.
(iii) Appellant No. 1 and respondent jointly filed a case to dissolve their marriage by mutual consent U/s 28 of Special Marriage Act being Original Case No. 22/2022 and the same was decreed vide Judgment dated 25.11.2022 and decree dated 07.12.2022.
(iv) Respondent instituted a suit being O S No. 24/2023 by filing a petition u/s 25 of Guardian and Wards Act 1890 seeking custody of the minor daughter (Appellant No2) alleging that appellant No. 1 has not complied with the term of the order of Lok Adalat whereby visiting rights of the minor daughter was given to the respondent.
59. Since it has been contended by the learned counsel for the appellants that once the matter was settled by and between the parties and award dated 02.03.2022, passed in OMC No.41/2018 (Ext.1) was already prepared wherein the terms and conditions were interlinked and custody of the child(minor daughter/appellant no.2) was to remain with mother (Appellant No. 1) and respondent was given visitation rights, it was not open for Respondent to file a fresh suit claiming guardianship of the minor daughter.
60. In the aforesaid context it requires to refer herein Section 21 of 27 2025:JHHC:23883-DB Legal services Authority Act 1987, provides as follows:
"Award of Lok Adalat- (1) Every award of the Lok Adalat shall be deemed to be a decree of a civil court or, as the case may be, an order of any other court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under sub-section(1) of section 20, the court- fee paid in such case shall be refunded in the manner provided under the Court-fees Act, 1870 (7 of 1870).) (2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award.
61. It is evident from the award of the Lok Adalat that it was based on the consideration that Appellant No. 1 (Wife) shall keep the custody of minor daughter and Husband (Respondent) shall have visitation rights. Upon this condition. Appellant No. 1 agreed to forgo the alimony as well as maintenance amount and also agreed for mutual divorce.
62. On the basis of the aforesaid factual aspect, it is evident that on the ground of non-compliance of the term of the award as passed by Lok-Adalat the respondent has preferred the suit for custody of his minor child. It is also evident from the record that motion of divorce has been filed on mutual consent of both the parties and thereafter the suit for custody has been filed on the ground of non-compliance of term of the award passed by Lok - Adalat.
63. It requires to refer herein that as per the of Section 21 of the Act 1987 every award of the Lok Adalat shall be deemed to be a decree of a civil court or, as the case may be, an order of any other court. Further where an award is made by Lok Adalat in 28 2025:JHHC:23883-DB terms of a settlement arrived at between the parties, (which is duly signed by parties and annexed to the award of the Lok Adalat), it becomes final and binding on the parties to the settlement and becomes executable as if it is a decree of a civil court, and no appeal lies against it to any court. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in the case of State of Punjab & Anr vs Jalour Singh & Ors reported in AIR 2008 SC 1209.
64. It needs to refer herein that the Hon'ble Apex Court in the case of K.N. Govindan Kutty Menon v. C.D. Shaji, (2012) 2 SCC 51 while discussing the settlement between the parties and award accordingly in relation to Section 138 of Negotiable Instrument Act, 1881 has observed that the award passed by the Lok Adalat based on a compromise has to be treated as a decree capable of execution by a civil court. For ready reference the relevant paragraph of the aforesaid Judgment is being quoted as under:
23. A statutory support as evidenced in the Statement of Objects and Reasons of the Act would not only reduce the burden of arrears of work in regular courts, but would also take justice to the doorsteps of the poor and the needy and make justice quicker and less expensive. In the case on hand, the courts below erred in holding that only if the matter was one which was referred by a civil court it could be a decree and if the matter was referred by a criminal court it will only be an order of the criminal court and not a decree under Section 21 of the Act. The Act does not make out any such distinction between the reference made by a civil court and a criminal court. There is no restriction on the power of Lok Adalat to pass an award based on the compromise arrived at between the parties in a case referred by a criminal court under Section 138 of the NI Act, and by virtue of the deeming provision it has 29 2025:JHHC:23883-DB to be treated as a decree capable of execution by a civil court.
In this regard, the view taken in Subhash Narasappa Mangrule [(2009) 3 Mah LJ 857] and Valarmathi Oil Industries [AIR 2009 Mad 180] supports this contention and we fully accept the same.
24. It is useful to refer to the judgment of this Court in State of Punjab v. Jalour Singh [(2008) 2 SCC 660 : (2008) 1 SCC (L&S) 535 : (2008) 1 SCC (Cri) 524 : (2008) 1 SCC (Civ) 669] . The ratio of that decision was that the "award" of the Lok Adalat does not mean any independent verdict or opinion arrived at by any decision-making process. The making of the award is merely an administrative act of incorporating the terms of settlement or compromise agreed upon by the parties in the presence of the Lok Adalat, in the form of an executable order under the signature and seal of the Lok Adalat. This judgment was followed in B.P. Moideen Sevamandir v. A.M. Kutty Hassan [(2009) 2 SCC 198 : (2009) 1 SCC (Civ) 446] .
26. From the above discussion, the following propositions emerge:
(1) In view of the unambiguous language of Section 21 of the Act, every award of the Lok Adalat shall be deemed to be a decree of a civil court and as such it is executable by that court. (2) The Act does not make out any such distinction between the reference made by a civil court and a criminal court. (3) There is no restriction on the power of the Lok Adalat to pass an award based on the compromise arrived at between the parties in respect of cases referred to by various courts (both civil and criminal), tribunals, Family Court, Rent Control Court, Consumer Redressal Forum, Motor Accidents Claims Tribunal and other forums of similar nature. (4) Even if a matter is referred by a criminal court under Section 138 of the Negotiable Instruments Act, 1881 and by virtue of the deeming provisions, the award passed by the Lok Adalat based on a compromise has to be treated as a decree capable of execution by a civil court.
65. Thus, admittedly herein by virtue of award passed by the Lak - Adalat dated 02.03.2022 in O.M.C. Case no. 41 of 2018, the custody of the minor daughter i.e. aged about 7 to 8 years has been handed over to the appellant no.1 and visiting right has 30 2025:JHHC:23883-DB been given to the respondent and thereafter as per term of the said award both the parties have preferred divorce application on the basis of mutual consent and the said application of the divorce has been granted accordingly.
66. In the backdrop of the aforesaid factual aspect it is considered view of this Court that that if any term of the said award has not been followed by one of the parties the aggrieved parties should have taken the recourse of remedy as available in the execution proceeding as per the ratio led by the Hon'ble Apex Court in the case of K.N. Govindan Kutty Menon v. C.D. Shaji (supra) , but herein the respondent has preferred the suit being Original Suit No. 24 of 2023 for custody of his daughter.
67. In the backdrop of the aforesaid discussion this Court is now adverting to the impugned order in order to find that whether learned Family Court has taken into consideration the import of the award dated 02.03.2022 passed by the Lok-Adalat on the basis of the compromise arrive between the parties and by which custody of the minor daughter aged about 7-8 years has been handed to the Appellant no.1.
68. From the perusal of impugned order, it is evident that learned Family Court has nowhere elaborately discussed the import and impact of the award dated 02.03.2022 rather the learned family Court while allowing the suit has only emphasized upon the financial viability of the parties and accordingly custody of the minor daughter has been given to the petitioner father (respondent) since he was getting the pension of Rs. 23000/ 31 2025:JHHC:23883-DB per month.
69. Thus, on the basis of the discussion made hereinabove this Court is of the considered view that the impugned order of the learned Family Court is perverse since there is no consideration of import and impact of the award dated 02.03.2022 passed by the Lok Adalat which was passed on ground of the settlement arrived between the parties and consequent to the settlement and the term of the award, petition of divorce on mutual consent has been filed and same was allowed.
70. At this juncture it would be apt to refer herein the interpretation of the word "perverse" as has been interpreted by the Hon'ble Apex Court.The Hon'ble Apex Court in Arulvelu and Anr. vs. State [Represented by the Public Prosecutor] and Anr., (2009) 10 SCC 206 while elaborately discussing the word perverse has held that it is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law. Relevant paragraphs, i.e., paras-24, 25, 26 and 27 of the said judgment reads as under:
"24. The expression "perverse" has been dealt with in a number of cases. In Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501] this Court observed that the expression "perverse"
means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity.
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25. In Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd. [AIR 1966 Cal 31] the Court observed that "perverse finding" means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665 :
AIR 1994 SC 1341] the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.
26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58] the Court observed that any order made in conscious violation of pleading and law is a perverse order.
In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed that a "perverse verdict" may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
In Godfrey v. Godfrey [106 NW 814] the Court defined "perverse" as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc.
27. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English, 6th Edn.
"Perverse.--Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable."
2. Longman Dictionary of Contemporary English, International Edn.
Perverse.--Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English, 1998 Edn. Perverse.--Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. The New Lexicon Webster's Dictionary of the English Language (Deluxe Encyclopedic Edn.) Perverse.--Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or 33 2025:JHHC:23883-DB petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, 4th Edn.
"Perverse.--A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence."
71. Since from perusal of the impugned order it is evident that learned Family Court after appreciation of the evidences led by the parties has directed to the appellant/respondent mother to hand over the custody of her minor daughter to respondent/petitioner father, therefore, it is bounden duty of this Court to go through the impugned order in order to verify that whether the learned Family Court while appreciating the evidence has adopted the proper approach.
72. Before venturing into the impugned order, 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. 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 34 2025:JHHC:23883-DB 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.
73. This Court after taking into consideration the settled position of law which has already been referred in the preceding paragraphs this Court has observed 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.
74. From the impugned order it is evident that while allowing the suit the learned family Court has only emphasized on the financial viability of the parties but it needs to refer herein that other than financial viability the emotional well being of the minor child should be one of the important aspects while considering welfare of the child. Further due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above 35 2025:JHHC:23883-DB physical comforts, the moral and ethical values have also to be taken care of while deciding the custody of minor girl child.
75. Further at this juncture it would be apt to reiterate the settled position of law as settled by the Hon'ble Apex Court in the case of Gaytri Bajaj v. Jiten Bhalla (supra) wherein it has been observed that it is the welfare and interest of 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.
76. It requires to refer herein that the judicial interpretation has commendably filled the legislative void, especially in recognizing the preferential custodial rights of mothers of girl children. However, true progress demands that the legislature codify these evolving norms to ensure a consistent and gender- neutral approach across the country.
77. As referred hereinabove the Hon'ble Supreme Court in Nil Ratan Kundu case (supra) has held that the child is not a "property" or "commodity" and issues relating to custody of minors and tender-aged children should be handled with love, affection, sentiments and applying a human touch to the problem.
78. In the instant case the appellant mother is educated lady and, in her testimony, she had testified that she shares her hand in the 36 2025:JHHC:23883-DB business of her mother, which is running in the name of Riyu's Kitchen. She had further testified that her husband (respondent herein) is not paying a single penny since last six month in spite of that there is award of the Lok-Adalat passed on the basis of the settlement between the parties. Further she has denied that she is not permitting the respondent/father to meet with daughter. Further in the cross-examination at para-21 she had stated that it is wrong to say that she did not send her daughter to the house of respondent/petitioner as he did not come to take her daughter.
79. Further it is pertinent to mention herein that the minor child who was age of 9 year at the relevant time has also been examined as witness i.e. R.W.2 wherein she had stated that her mother runs restaurant and her maternal-grandmother does bill, in restaurant. This witness had expressed her view that she does not want to live with her father as she is not comfortable with her father. She has stated that she can share her thoughts with her mother, but cannot share her feeling with her father.
80. From the perusal of the impugned it is apparent that the learned Family Court has negated the testimony of the minor children on the ground of tutoring but while doing so the learned family Court has overlooked the fact that the minor child is the student of class four and at some, she is qualified enough to understand her well being at some extent. So far as the financial viability is concerned the appellant mother has categorically stated that she is self-made lady and this fact has 37 2025:JHHC:23883-DB been substantiated by the testimony of her minor daughter. Further it has come in the evidence that the respondent husband has himself not complied the term of award dated 02.03.2022 as he had not paid the maintenance amount as settled by the Lok-Adalat, as such in such circumstances it may be inferred that his financial position is not sound.
81. Herein the appellant wife is a well-qualified lady and she is financially capable of shouldering the responsibilities associated with the upbringing of the minor girl child.
82. There is no doubt that while adjudicating the issue of custody, the paramount consideration must be the welfare of the child. The concept of welfare is comprehensive and must encompass the child's physical, mental, emotional, psychological, and medical needs. However, the learned trial court failed to appropriately apply this principle to the facts and circumstances of the present case. Instead, it erroneously took a contrary view and concluded-without sufficient basis-that the child's best interests would be best served in the custody of the father.
83. It needs to refer herein that the minor female child, presently around 10 years of age, is entering a critical stage of physiological and hormonal development associated with puberty. This sensitive phase necessitates enhanced emotional, psychological, and physical care-support that is most appropriately and effectively provided by the biological mother. In the present case, the mother, being a qualified lady is 38 2025:JHHC:23883-DB uniquely equipped to offer the care and guidance required and neither the paternal grandmother nor the father can adequately fulfil or substitute the maternal role, particularly given the nuanced and intimate nature of support essential during this developmental period.
84. Therefore, taking into consideration the significant biological and developmental factors associated with puberty, including the child's privacy and overall well-being, which typically arise between the ages of 10 and 15 years. During this crucial and formative stage, the presence and active involvement of the mother are indispensable to appropriately address the unique physical and emotional changes experienced by the female child. Moreover, it is contended that the father, by reason of both biological and practical limitations, is not suitably positioned to provide the specialized care, understanding, and support that the mother is inherently better equipped to offer during this sensitive period of transition.
85. 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 (appellant herein) who is the educated and self-dependent lady therefore, the judgment dated 13.07.2023 and the decree dated 21.07.2023 passed in Original Suit No.24 of 2023 by the learned Principal Judge Family Court, Chaibasa suffers from an error and needs interference and, accordingly, set aside.
86. The instant appeal is hereby allowed.
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87. Before parting with the order, it is considered view of this Court that in the light of ratio rendered by the Hon'ble Apex Court in the case of Yashita Sahu v State of Rajasthan(supra), the visitation right to the respondent/father should be continued as per the award dated 02.03.2022 passed by Lok-Adalat in O.M.C. No. 41 of 2018.
88. Pending interlocutory application(s), if any, also stands disposed of.
I agree, (Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.) (Rajesh Kumar, J.)
Samarth/ A.F.R.
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