NAFR HIGH COURT OF CHHATTISGARH, BILASPUR FAM No. 197 of 2017 Reserved on 23-11-2022 Delivered on 15-12-2022 Sanjay son of Ran Sai, aged about 33 years, Caste Harijan, R/o.

Village Churcha Coliery, Distt. Korea (C.G.)

---- Appellant/(Applicant)

Versus Sukwariya wife of Sanjay, aged about 30 years, R/o. Village Dhodhibaraha, PS and Tahsil Baikunthpur, Distt. Korea (C.G.)

---- Respondent/(Non-applicant)

For Appellant : Mr. Syed Majid Ali, Adv.

For Respondent : Mr. Vaibhav A. Goverdhan, Adv.

Hon'ble Shri Justice Goutam Bhaduri Hon'ble Shri Justice N.K. Chandravanshi

CAV Judgment

Per N.K. Chandravanshi, J.

1. This appeal has been preferred by the appellant against order dated 24-7-2017 passed by the Family Court, Baikunthpur Distt. Korea (CG) in Misc. Criminal Case No. 13/2016 (CIS No. 6/2017) whereby application filed by the appellant/husband under Section 7 of the Guardianship and Wards Act, 1890 (hereinafter referred to as 'the Act, 1890') read with Section 6 of Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as 'the Act, 1956'), for grant of custody of his minor son, was dismissed.

2. Facts of the case, in brief, are that marriage of the appellant/ husband was solemnized with respondent/wife on 7-5-2009. They have been blessed with a son namely Ashish, who was aged about 6 years at the time of filing of the application. It is alleged that the respondent/wife lived with the appellant only for about 10 months, thereafter, she left company of appellant and efforts made by the appellant to bring her back went in vain and she is residing with her parents at their village. It has been further pleaded that on an application being filed by the respondent, earlier the husband was giving Rs. 1,500/- per month for her maintenance, which was subsequently increased to the tune of Rs. 1,700/- per month. Thus, she is not having source of income to maintain herself and their son, whereas the appellant is having government job and he is natural father of the child. Hence, he can take better care for welfare of their child in respect of his study, health and other needs of life, therefore, the appellant has requested to give custody of their minor child Ashish from respondent/wife.

3. In reply, the respondent/wife has accepted that she is residing along with her child in her parental home at village Dhodibahra, where she delivered their son Ashish, but she has been compelled by the appellant to part him, as she was subjected to cruelty on various counts by the appellant. After delivery of child, appellant has never come to meet them, divorce proceeding is also going on between them. Appellant has never taken care of them and when she filed maintenance application, only thereafter, he is giving amount of maintenance and only to escape from paying maintenance to them, he has filed aforesaid application. She has further pleaded that she is mother of the child, capable to maintain him and taking proper care of him, therefore, the application filed by the appellant is liable to be rejected.

4. In respect of his pleading, appellant examined himself as P.W. 1, and Secretary of their social forum Sanjay Kumar Kurre as P.W. 2. Respondent has examined herself as D.W. 1 and her father Pati Narayan as D.W. 2.

5. Learned Family Court, after appreciating and evaluating the evidence adduced by both the parties, dismissed the application filed by the appellant after holding that welfare and betterment of child is much more safe with his mother, as father was not found to be responsible towards their child.

6. Learned counsel for the appellant would submit that at the time of filing of application, age of child was about 6 years, thus he had become a school going boy, but he is residing along with her mother at village Dhodhibahra where school facility is not good and respondent is not only an illiterate house lady, but also she has no source of income to maintain her own and their son's livelihood, as she is maintaining herself and the child only from the