IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK RUSIA &

HON'BLE SHRI JUSTICE PRADEEP MITTAL

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ON THE 9 OF DECEMBER, 2025 MISC. APPEAL No. 9665 of 2025 MOHD. JAVED KHAN Versus SMT. SHAHNAZ BEGAUM AND OTHERS Appearance:

Mr. Riyaz Mohammad - Advocate for the appellant.

ORDER Per: Justice Pradeep Mittal This appeal is filed by the appellant against the judgment and decree dated 11.11.2025 passed by the learned Principal Judge, Family Court, Tikamgarh in MJC No. GW/11/2024 whereby the petition under Section 25 of the Guardian and Wards Act, 1890 filed by the appellant for custody of her daughter has been dismissed.

2. The facts of the case is that the marriage of appellant and respondent No. 1, Smt. Shahnaz Begum was performed on 19.04.2015 according to Mohammadan law at Sagar and out of their wedlock, one child baby girl namely Ku. Aasna @ Zara was born, who is presently about 8 years old.

3. That, the appellant had filed an application for restitution of conjugal right but she did not turn up and she flatly refused to live with the appellant and she has filed an application U/s.125 Cr.P.C. before the Family Court, Tikamgarh for maintenance since she was not able to prove her case that she is living separately with any sound reason, hence the application u/s.125 has been rejected.

4. That, the appellant had also filed an application for divorce in Family Court Sagar which is pending for consideration for final disposal.

5. That, since the appellant has love and affection for her daughter, namely Aasna @ Zara, and as the non-applicant No. 1 has no sufficient source of income, as stated by her in the application filed before the Family Court under Section 125 of the Cr.P.C., the future of the daughter appears bleak. She will not be able to receive better education if she remains with respondent No. 1. The appellant is in a position to provide better education and care for Aasna @ Zara.

6. It is submitted by the learned counsel for the appellant that Issue No. 1 as to whether the appellant, being the natural father, is entitled to the custody of his child, as decided by the Family Court, is neither just nor proper, as the learned Court failed to consider that the future prospects of the child are always a paramount consideration, which ought to have been taken into account by the trial Court. The other reasons recorded by the Family Court were not examined from a wider perspective, nor did the Court consider the paramount importance of the child’s custody. The learned trial Court also failed to consider the financial stability required to properly nurture the child and support her education. Therefore, the order passed by the Family Court is not just and proper.

7. That the learned court below did not take into account that the appellant is financially capable and willing to provide better education, care, and upbringing to the minor, and that no evidence exists to show that the child’s welfare would be better protected under the current arrangement. The findings of the learned court below with respect to the issues are factually incorrect; therefore, the impugned judgment is liable to be set aside.

8. We have heard the learned counsel for appellant and perused the record.

9. From a perusal of the impugned order, it is clear that the appellant, in his cross-examination, admitted that respondent No. 1, along with respondent No. 2, has been living separately since 20.09.2020, and that since then, the appellant has not initiated any proceedings for the custody of his child. It has also been admitted by the appellant that the Court has ordered him to pay Rs. 1500/- per month as maintenance to respondent No.2(minor).

10. A perusal of paragraph 29 clearly indicates that respondent No.

2, who is about 8 years of age, has been living with her mother and is studying in an English Medium School at Tikamgarh. The source of income of respondent No. 1 is from giving tuitions. In addition, an amount of Rs.

1500/- has been order