Rajiv Chouksey vs Smt. Kirti Chouksey And Anr. on 27 January, 2006

Madhya Pradesh High Court
Rajiv Chouksey vs Smt. Kirti Chouksey And Anr. on 27 January, 2006
Equivalent citations: 2006 (2) MPHT 137
Author: S Jain
Bench: S Jain


S.L. Jain, J.

1. This appeal under Section 47 of the Guardian and Wards Act is directed against the order dated 29-8-2005 passed by the Addl. District Judge, Hoshangabad, in G & W Case No. 03/05 dismissing the appellant’s application for the custody of Child Ayan Chouksey.

2. Brief facts of the case lying in a narrow compass and relevant to the decision of this appeal are apt to be dilated hereunder; Marriage between appellant Raju Chouksey and respondent Smt. Kirti Chouksey was performed on 26-7-97, In this wedlock respondent No. 2 was born on 1-1-99. The appellant filed an application under Guardian and Wards Act inter alia on the ground that the marital life of the parties was not happy. Respondent wife always used to quarrel with the husband and his family members. She made a false complaint against the husband and other family members and got a case under Sections 489A, IPC and 3/4 of the Dowry Prohibition Act registered against the appellant. The respondent No. 1 is a mentally abnormal woman. Several times she made attempts to commit suicide. The respondent No. 1 used to beat Ayan and sometimes used to throw him. She never showered love on him. Till 11-8-03 appellant and respondent No. 1 lived together at Gadarwara and thereafter respondent No. 1 started living at her parental home and never returned. While living at Gadarwara she never bothered for the education of child Ayan. Ayan is a student of National Public School, Gadarwara. Because of the regular absence from the school, his education will suffer therefore, child Ayan may be given in the custody of the applicant father.

3. The respondent No. 1 controverted the allegations made in the application by filing a written statement. She stated that child Ayan was born at Hoshangabad. The applicant and the members of his family did not even come to see the child. The appellant has no love for the child. Presently the child is in her custody and she is taking every care of the child. The child is getting his education. The appellant is a business executive and in connection with his business he very frequently goes out of Gadarwara. The appellant and his parents never cared for the child. The” life of the child is happy and safe with the mother,

4. The Trial Court framed two issues and found that the appellant is not entitled to the custody of the child and dismissed the application.

5. I have heard Shri N.S. Ruprah Counsel for appellant and Shri D.K. Sharma, Counsel for respondents.

6. Learned Counsel for appellant contended that the financial condition of the respondent No. 1 is not good. She is unable to maintain herself and her child. The respondent No. 1 herself admitted in the proceedings under Section 125, Cr.PC that she is unable to maintain herself.

7. The contention is not acceptable. The welfare of a child is not to be measured in terms of money and physical comforts. The word ‘welfare’ must be taken in its widest sense. The moral and ethical welfare of the child also weigh with the Court as well as its physical well being. Paucity of means alone will not deprive a mother of her right of her child’s care and custody, When presently the child is living a happy life and getting good education, it can not be said that because of paucity of means of the mother, the custody of the child should not be given to her.

8. In this regard respondent No. 1 has stated that she is maintaining good health. She is giving very good education to her son. She is maintaining her son in a nice way. The Trial Court has beljpyed this evidence of respondent No. I, Respondent No. 1 can get amount of maintenance from her husband under the provisions of 125, Cr.PC or under Hindu Adoption Maintenance Act, therefore, only on the ground that financial condition of the applicant is better, the custody of the child can not be given to the father only on the ground that wife has no source of earning. In matters relating to custody of minor the welfare of the minor is predominant consideration.

9. Learned Counsel for appellant next contended that age of child Ayan is above 5 years. Father is his natural guardian, therefore, the child should be given in the custody of the father.

10. This contention is also not acceptable. There is no rule of law that the child above 5 years, should always be given in the custody of the father. It is for the Court to decide it in the interest of the child. The law vest in the Court a very wide discretion while deciding the claim for custody of minor child. Respondent No. 1 has specifically stated that the child was born at Hoshangabad at her parental house. Her husband or the members of his family did not come to see the child. Applicant himself has admitted in his evidence that he never took initiation for the maintenance and education of his son. His statement that he went to the school to see the child has not been believed by the Trial Court. He could not specifically state that as to on what date and with whose permission he met the child in the school. He has given a false pretext that because of the apprehension that he may be involved in a case of kidnapping of a child, he stopped meeting his son. The applicant has expressed ignorance as to whether the child is going to school regularly and whether he always secures good marks. He admitted that he never bothered to know about the performance of the child in the school. The finding of the Trial Court that the applicant did not care for the child is unimpeachable.

11. Learned Counsel for appellant also submitted that the father of the respondent No. 1 is a retired Jailor. He wants to maintain the same discipline in the house as he was expecting from the prisoner of the jail. Because of the fact that he had worked as Jailor, he always keeps the atmosphere of terror and fear in the family also.

12. The argument is hypothetical and can not be countenanced. There is no evidence that the atmosphere at the grand parental house of the child is not congenial and happy.

13. Learned Counsel for appellant next contended that respondent No. 1 is suffering from psychofinia. No medical evidence has been given to establish this fact. Merely because the respondent No. 1 was under treatment for sometime it can not be said that it will not be in the welfare of the child to keep him with the mother. It has also come in evidence that the appellant is a business executive. He is frequently required to go out of station for his business therefore, on this ground also the Trial Court has rightly found that welfare of the child lies in keeping him in the custody of the mother.

14. The Trial Court tried to ascertain the wishes and desire of minor who is old enough to make an intelligent preference. When a minor child of more than 6 years expressed his preference to live with the mother due weight-age should be given to his preference. Under the circumstances it can not be said that the wish expressed by the minor was not free and frank. The expression ‘welfare of the minor’ has to be given a very wide meaning. It has many facts like financial, educational, physical, moral and religious welfare. Due regard must also be had to the affection and capacity of building up a good career for the infant. The Trial Court kept all these considerations in mind. The finding of the Trial Court in this regard is defensible.

15. From the evidence of respondent No. 1 and the evidence of Naseemul Gani, Principal of Tagore Modern School, Hoshangabad it is clear that Ayan is getting good education. The mother of the child is taking every care. Every day she comes to school to leave and take him. She also comes to school with his lunch. The manner in which the child is being maintained, it can not be said that respondent No. 1 is having no means. The Trial Court on proper appreciation of the evidence has recorded a finding that it is in the welfare of the child to keep him the custody of the mother. Minor’s welfare alone is the relevant factor and any right of the father or mother is subordinate to that.

16. Learned Counsel for appellant vehemently submitted that preference expressed by the child who is not sufficiently old to form an intelligent preference has no importance.

17. This contention also can not be accepted. The child was examined as a witness in the Court and he was cross-examined also. From his evidence it can not be said that he is not in a position to form an intelligent preference. When the child is living in the exclusive custody of the mother, father did not take interest in the affairs of the minor, the Trial Court rightly refused to give the custody of the child to the father. The Trial Court has appreciated the evidence in proper perspective. It analyzed the factual material properly. Therefore, its finding can not be lightly brushed aside by this Court. The Appellate Court should always bear in mind that if the finding of the Trial Court is reasonably sustainable on evidence on record it should not be interfered with normally except for very cogent reasons.

18. In the circumstances of the case I do not find any reason to interfere with the conclusion recorded by the Trial Court. The appeal is therefore sans merit and is dismissed. Costs as incurred.

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