SARJU THAKUR Vs. RANJEET KUMAR PRAMANIK

JUDGEMENT

(1.) The present appeal has been preferred, under Section 19(1) of the Family Court Act, 1984, against the order dated 19.07.2011 passed in Civil Misc. No.18 of 2005 whereby the learned Principal Judge, Family Court, Dhanbad, allowed the petition under Section 26 of the Hindu Marriage Act, filed by the respondent-plaintiff for custody of his minor daughter, Khushbu Kumari.

(2.) Learned counsel for the appellant has assailed the impugned order inter-alia on the ground that the court below has failed to appreciate that the minor child has been residing with the appellant - defendant, who is the maternal grandfather. The respondent-plaintiff had driven out his wife, late Gita Devi, from the matrimonial home since she could not bear any male child. That late Gita Devi was murdered by the respondent-plaintiff and his relatives, for which, a case under Sections 302/ 211 of the Indian Penal Code was lodged with the police. It is argued that the respondent-plaintiff has remarried and is not interested in the welfare of the child which is reflected from his conduct as he had abandoned Khushbu Kumari after the death of her mother lat Gita Devi and he is least concerned about the welfare of Khushbu Kumari and has not provided for the maintenance of Khushbu Kumari who has been residing with the appellant who has been looking after and taking care of her since her birth and providing for her education. It is contended that it was the last wish of late Gita Devi that Khushbu Kumari should reside under the guardianship of her nana (maternal grandfather), i.e., the appellant. It is argued that the petition for custody of Khushbu Kumari has been filed by the respondent to pressurize the appellant to withdraw or to compromise the murder case filed against the respondent. It is submitted that welfare of other four daughters of late Gita Devi is at stake, as they are not being given proper love, care and affection by the respondent and their step-mother. It is argued that the court below has failed to appreciate and consider that the welfare of the child would be jeopardized if she was given in the custody of the respondent-plaintiff, accordingly it is argued that the impugned order is fit to be set aside.

(3.) Per contra, learned counsel, for the respondent-plaintiff, has submitted that it would be evident from the impugned order that the appellant-defendant after filing his reply to the petition under Section 26 of the Hindu Marriage Act, did not lead any evidence to substantiate the allegations that the other four daughters of the respondent, begotten out of the wedlock with Gita Devi, are not being looked after properly by the respondent-plaintiff or their stepmother. That Gita Devi had died due to a disease. That the court below has applied its judicial mind to the available evidence on record and has rightly passed the order, allowing the petition under Section 26 of the Hindu Marriage Act, for giving the custody of the child in the guardianship of the respondent-plaintiff.