Jamshed vs Smt. Gulista

In the present Appeal from Order, the appellant (husband) challenges the order dated 26.08.2015, passed by Additional Judge, Family Court, Roorkee, District-Haridwar, whereby, his Misc. Case No.22 of 2012, preferred under Section 10 r/w Section 25 of Guardian of Ward Act, for seeking custody of the minor child Rehan, has been rejected.

Heard Mr. Mohd. Safdar, Advocate learned counsel for the appellant and Mr. Raj Kumar Singh, Advocate learned counsel for the respondent.

According to the appellant his marriage with respondent was solemnized on 27.03.2008, out of marriage son Rehan was born on 30.11.2009, at the time when the

miscellaneous case was filed Master Rehan was only three years of age.

For procuring the custody of Rehan, the appellant had filed an application before the Family Court under Section 25 on 26.04.2014, on the ground that there had been earlier litigations between the husband and wife registered as Suit No.108 of 2009, "Jamshed vs. Smt. Gulista," for restitution of conjugal rights and there had been other proceedings wherein a claim has been raised by respondent for the payment of an amount for maintaining the child.

Another ground which was taken was that since, the respondent (wife) is residing in her parent''s house and is not willing to reside with the husband and discharge her matrimonial obligation, the future of Rehan would be rendered in dark, if he is permitted to continue to live with her at her parents place.

The appellant also stated that there is certain misunderstanding between the husband and wife and on account of the aforesaid misunderstanding, she has left the in-laws house and is residing with her parents, he contended that all his efforts to bring her back was of no avail on account of the arrogant attitude of hers.

It is an admitted case of the appellant that the proceedings registered as Suit No.108 of 2009, for restitution of conjugal rights "Jamshed vs. Gulista", was decreed, but still the wife has declined to discharge her matrimonial obligations. The

appellant (husband) has also placed reliance in the proceedings of Case No.180 of 2009, wherein she has claimed maintenance for maintaining her son, which was too dismissed on 09.10.2012.

The learned Family Court after considering the rival contentions and the wellbeing of the minor child Rehan, which is supreme to be attained as intended under Guardian and Wards Act, in particular under Section 25, the Court by the impugned order dated 26.08.2015, rejected the application of the appellant and custody of minor Rehan continued to be with Gulista (mother).

According to the findings recorded, the Court on the basis of the evidence brought on record has come to a conclusion that it would not be in the interest of child to give the custody to the appellant, because it has been established that he has company of females whose characters are deceptive, apart from it according to the applicant himself that he is uneducated and is having an income of Rs.800 to 900 per month only. The case of the appellant developed before the Court below was that he would be the most suited person to maintained his son Rehan, because according to the wife''s case as she pleaded in Case No.145 of 2011, preferred under Section 125 of the Cr.P.C., she has contended that the appellant is earning a sum of Rs. 30,000/- per month, on the basis of the said premise, the husband stated that his income is on the higher side and he would be in a better position to maintain his son Rehan.

The learned Family Court rejected the application rightly, so taking into consideration the fact that the statement of the respondent pertaining to the income of the appellant in 125 Cr.P.C . proceedings is irrelevant, more particularly when it is an admitted case of the appellant that he is having an earning of Rs.800 to 900, only which is too meager to maintain Rehan. The parties before the Court below had agreed to the submissions that Rehan is residing with the respondent, who is taking care of Rehan by imparting good education and is taking care of his wellbeing. Nothing was brought on record to this affect.

The learned Trial Court also took note of the fact after the birth of Rehan on 30.11.2009, the applicant under Section 25 had never made any effort to show his affinity and shower his affection towards Rehan which more important and even so much so, he has not made any efforts to meet his son to shower his affection on him nor made any responsibility which a father has to discharge. Nothing was brought on record to this affect.

The stand taken by the appellant before the Court below that since in the proceedings for restitution of conjugal rights, and against the orders passed in the same, since the writ petition is pending consideration in which the notices have been issued, the order of restitution of conjugal right will become ineffective, and hence according to the appellant, the issue of custody cannot be considered is a misconception, the proceedings under Section 10 r/w Section 25 of Guardianship and Ward Act, has got no nexus with the proceedings for restitution of conjugal rights and thus, merely because of the

pendency of a writ petition against an order of restitution of conjugal rights will in no manner adversely affect the proceedings of Guards and Wards Act, which is independent to one and another, in which the prime consideration is the welfare of the child without being swade by any other consideration.

According to respondent, the minor Rehan when he was in the womb of his mother, her care was being taken by her parents and during the said period she resided with a parents who have taken the utmost care and during the said period since, the appellant has not shown any concern or his willingness to discharge his responsibilities towards his pregnant wife when she was in the family way which shows the bend of mind, as such the custody by the impugned order has given to the mother has rightly been given to her because of insensitivity of the appellant towards his wife and his son. It is highly unexpected that a father would not make any efforts to meet his son and to discharge his responsibilities as a father, in such a situation, the learned Family Court has rightly granted the custody of the child to his mother. On perusal of the oral evidence adduced by way of paper no.19a of the appellant along with the affidavit as submitted by the respondent (wife) shows that it was a specific case of the respondent that the in-laws of her too more interested in their procurement of booty from the respondent''s parents home instead of showing their concern and attachment to the respondent and her son Rehan.

According to the oral and documentary evidence it stands established that Rehan ever since his birth is residing with

his mother Gulista and is a student of second standard and is being reared by the respondent (wife), mother who would be best person to take care of his wellbeing.

Keeping the aforesaid issues and taking into consideration the fact that the provisions of Section 25 intends to secure welfare of the child, and to determine the safest place ensuring future is to be settled by the Court and thus, the Family Court by the impugned order dated 26.08.2015, rightly rejected the application of the appellant, considering the fact that he is illiterate, having limited source of earning and the environment with the appellant is not supporting the up-liftment of the child and its future. Thus, the appeal fails and is dismissed.