NEHA SHARMA Vs. KAUSHAL KISHORE SHARMA

JUDGEMENT

(1.) The present appeal has been filed by the appellants against the judgment/order dtd. 11/5/2022 passed by the learned Family Court, Raigarh (C.G.) in Civil MJC No.F-37/2019, whereby the respondent's application for custody of children has been allowed.

(2.) Brief facts of the case are that the marriage between the appellant No.1 and the respondent was solemnized on 6/5/2011 and out of their wedlock, appellant No.2 was born on 30/12/2013. After sometime of the marriage, the disagreements/conflicts used to take place between them, as such the appellant no.01 took away appellant no.02 to her maternal home on 10/10/2018, since then they both are residing separately from the respondent and his family members. Subsequently, the respondent filed an application under Sec. 13 of Hindu Marriage Act, 1955 for divorce registered as Civil MJC No.20/2021 before the learned Family Court, Raigarh, in which an application was moved by the appellant no.1 under Sec. 24 of the Act, 1955 for pendente lite maintenance. On 14 17/9/2021 an order was passed directing the respondent to pay a monthly expense of Rs.3,000.00 and litigation expenses of Rs.5,000.00 to the appellants and subsequently the decree of divorce was granted in favour of the respondent husband. Thereafter the respondent/applicant filed an application under Ss. 6 of the Hindu Minority and Guardianship Act, 1956 for taking the custody of appellant no.02, which has been allowed and the custody of the appellant No.2 has been directed to be handed over to the respondent, against which the present appeal has been filed by the appellants.

(3.) Learned counsel for the appellants submits that the impugned order is erroneous in law and facts both and the same is liable to be set aside. The learned Family Court while passing the impugned order has failed to appreciate the oral and documentary evidence adduced by the parties. It is incumbent upon the Court to find out the welfare of the child before passing the order regarding custody. The learned Family Court has failed to appreciate the material brought on record by the appellants and the evidence, which shows that the future and welfare of the minor appellant No.2 is not safe in the hands of respondent. The Family Court has committed gross illegally in passing the impugned order without framing the proper issues. The Family Court while passing the impugned order has failed to appreciate that the welfare of the minor depends on its proper upbringing including proper education which is a part of the right of a minor to life and decent living. Merely on account of the job of respondent, the minor's custody cannot be granted. On the other hand the respondent is not taking responsibilities of his child for paying maintenance even after the specific direction by the learned Family Court. Learned counsel further submits that it is well settled that in the matter of custody of child, the rights of the parents are not paramount consideration and it is the welfare of the child which would be the paramount consideration for grant of custody, but the learned Family Court has not considered the said aspects of the matter and even the visiting rights was not granted by the learned Family Court. Therefore, the appeal deserves to be allowed. Reliance has been placed on the judgment rendered by the Hon'ble Supreme Court in the matter of Shazia Aman Khan and another vs State of Orissa and others, reported in (2024) 7 SCC 564 and Gaytri Bajaj vs Jiten Bhalla, reported in (2012) 12 SCC 471.