IMPORTANT POINT
Custody of children – Claim seeking custody of children is not akin to property right as various factors would be necessary to evaluate to decide the question.

JUDGMENT ON BOARD

Goutam Bhaduri J.—This appeal is against the order dated 12.04.2022 passed by the Judge, Family Court, Mahasamund in Misc. Civil Suit No.14/2021, whereby the application filed by the appellant under Section 25 of the Guardians and Wards Act, 1890 for custody of 3 children from respondent No.1 - Dhaniram Nishad was dismissed.

2. The mother of the children being appellant is in the appeal. The admitted facts of the case are that the appellant was married to Dhaniram Nishad who works as a labour and out of their wedlock, 3 children who are arrayed as respondents No.2, 3 & 4, were born. According to the appellant/mother, in the year 2014, she got separated from respondent No.1. Thereafter, she performed second marriage with one Narendra Singh and started residing with him. It was stated that the second husband has sufficient means to look-after the children as he is working as a driver, whereby, he earns Rs.12,000/- per month and he is also having 7 acres of land, therefore, they are more capable in financial terms to look-after the children as compared to respondent No.1 who works as a labour and is getting Rs.150/- per day and he is not able to look-after the welfare of the children and their education is also getting affected. Therefore, she wants the children back in her custody.

3. Respondent No.1 filed his reply and stated that the appellant deserted the husband and 3 children in the year 2014 and thereafter she performed second marriage. It is further stated that after the year 2014, she never tried to contact the children till the petition was filed. The non-applicant (respondent No.1) is residing in the joint family along with his mother and brother who is issueless and he takes care of the children. It is also stated that the children are studying well. On such grounds, the application was registered.

4. The Family Court after evaluating the evidence of the appellant (AW-1) and her second husband Narendra Singh (AW-2) as also by taking into account the statement of the biological father Dhaniram Nishad (NAW-1) and the grand-mother Sukwaro Bai (NAW-2) found that welfare of the children would be better in the hands of father and thereby, dismissed the application for custody. Hence this appeal.

5. Learned counsel for the appellant would submit that the appellant being biological mother and her second husband can take better care of the children. It is further submitted that her second husband has affluent means to take care of the children as compared to the father of the children. It is further submitted that in view of the fact that the second husband of the appellant is also issueless is agreed to take care of the children therefore, betterment of the children would be in the custody of appellant. Learned counsel submits that dismissal of the application by the learned Family Court is required to be interfered and prays to allow the present appeal.

6. On the other hand, learned counsel for the respondents would submit that the appellant after deserting the husband and children in the year 2014, the appellant never turned back to take care of the children and such conduct itself would show that she was not willing to take care of the children. It is further submitted that once the desertion is made voluntarily, it would not be proper for the appellant to ask for custody of the children and prays to dismiss the appeal.

7. We have heard learned counsel for the parties and perused the record.

8. It is settled proposition that upon an application for custody of the minor, the Court should be very careful and should anxiously weigh the evidence led before it which would include the various considerations so as to promote the welfare of the minor. In deciding the question of custody, the welfare of minor is the paramount consideration. Claim seeking custody of the children is not akin to the property right as various factors would be necessary to evaluate to decide the question. Keeping such object in our min