BHARTI AGARWAL Vs. VIKAS AGARWAL

JUDGEMENT

(1.) This is an appeal under Section 28 of the Hindu Marriage Act 1955 read with Section 19 of the Family Courts Act 1984 against the judgment and order dated 11.5.2012 passed by Principal Judge, Family Court, Lucknow in Misc Case No.128 of 2010 whereby a suit filed by respondent Vikas Agarwal, the husband of appellant no.1 has been allowed directing the appellant to handover the custody of the child 'Master Pratham Agarwal' to the respondent plaintiff. It is not disputed that a regular suit no. 2252 of 2009 under Section 13 of the Hindu Marriage Act for divorce was filed by the respondent Vikas Agarwal. Suit was decreed by judgement and order dated 11.5.2012. An appeal preferred by the appellant no. 1 has also been dismissed as not pressed. Keeping in view the subsequent development, which has been brought to notice of the court is that appellant Bharti Agarwal married to another person namely Shri Rahul Kailash Gupta and shifted to Maharashtra. It is also not disputed that Master Pratham Agarwal is residing at Allahabad along with his maternal grandfather (Nana) and pursuing his studies.

(2.) The marriage was solemnized between the parties on 17.1.2000 in pursuance to Hindu rituals. On 20.7.2004 the birth of Pratham Agarwal took place during matrimonial life of the parties. It is brought on record that on account of sour relationship between the husband and wife numbers of cases were instituted in different courts including the application moved by the appellant no. 1 in Mahila Aayog. FIR's were also lodged by either side in different police station. Keeping in view the strained relationship it appears that both husband and wife started to live separately. Allegation has been raised by the plaintiff respondent while preferring the suit in question that defendant no. 1 is not in a position to shower the motherhood to the Pratham Agarwal and has got illicit relationship with other person. She is a lady of disturbed mind and easy virtue is not in a position to meet out the requirement excepted from a mother. Being mentally disturbed lady it shall not be proper to leave the child with her.

(3.) Principal Judge, Family Court after considering the evidence led by the parties' recorded a finding that the appellant no. 1 is residing at Pune and working as dietician whereas respondent Pratham Agarwal is residing at Allahabad in his maternal grandfather's house. Both are living separately. In case, Master Pratham Agarwal is permitted to live with her maternal grandfather he may suffer from adverse consequences with a dark future. A finding has been recorded that maternal grandfather has renounced the world and it is not expected that he will be able to bear the burden of Master Pratham Agarwal for whole of the life or up to the age of majority. Keeping in view the difference of age of maternal grandfather, who is aged about 66 years and subsequent development with regard to marriage of appellant no. 1 with a person residing at Pune, Maharashtra, it shall not be proper to leave the child with appellant no. 1. The appellant no. 1 as well as respondent plaintiff are residing separately since almost a decade and the appellant no. 1 is not in a position to bear the expenses of Master Pratham Agarwal.