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FAM No.236 of 2018

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

FAM No. 236 of 2018

Nagendra Kumar Joshi son of Gulab Chandra Joshi, aged about 29

years, R/o. Quarter No. 02, Street No. 27, Nandani Mines Township,

Post and P.S. Nandani, Tahsil Dhamdha, District Durg (C.G.)

---- Appellant/(Applicant)

Versus

Suklal Bandhe son of late Bisahu Das Bandhe, R/o. Block 12-E,

Street No. 29, Zone-02, Khursipar, Bhilai, Tehsil and District Durg

(C.G.)

---- Respondent/(Non-applicant)

For Appellant

: Mr. Shikhar Sharma, Advocate.

For Respondent : Mr. Anand Shukla, Advocate.

Hon'ble Shri Justice Goutam Bhaduri

Hon'ble Shri Justice N.K. Chandravanshi

Judgment on Board

Per Goutam Bhaduri, J.

15-11-2022

1.

Heard.

2.

The present appeal is filed by the father/appellant against the

order dated 02.08.2018 passed by First Additional Principal

Judge, Family Court, Durg in MJC No. 12/2013, whereby

application under Section 25 of the Guardians and Wards Act,

1890 (henceforth “Act, 1890”) preferred by the father to get

custody of his minor child was dismissed.

3.

The facts of the case are that the appellant Nagendra Kumar

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FAM No.236 of 2018

Joshi was married to Anita, who is daughter of respondent, on

14.04.2007 and out of their wedlock a child - Tanishq was born

on 12.07.2008. According to appellant, since Anita was ailing,

as such, she left company of the husband without his

knowledge on the pretext of treatment and eventually on

25.06.2012, Anita, first wife of the appellant died. Thereafter,

the appellant went to get custody of the child from in-laws, but

it was refused. It is stated that father-in-law of the appellant is

not much educated, as such, development of the child may

not take place properly. It was stated that financially the

appellant is well off and he would be able to take care of the

child in most effective manner to his interest, therefore,

custody of the child may be handed over to the appellant.

4.

The respondent, who is father-in-law of the appellant, replied

to the averments made in the application and stated that his

daughter was being tortured for demand of dowry both

physically and mentally. Consequently, she was forced to stay

at her parental home. It was stated that birth of the child had

taken place at their place and after birth, the appellant, natural

father, never used to take care of his child and performed

second marriage immediately after death of Anita and out of

that, two female children are also born. It was stated that

appellant would not be able to take care of the child in proper

and effective manner, therefore, welfare of the child would be

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FAM No.236 of 2018

better in the hands of the maternal grandfather i.e. respondent

and sought for dismissal of the application.

5.

Appellant examined himself as PW-1, one Dinesh Kumar

Dhritlahre was examined as PW-2 and other witnesses though

were examined but not cross-examined whereas respondent

on his part examined himself as DW-1, one Suneeta Singh

was examined as DW-2 and child Tanishq Kumar was

examined as DW-3.

6.

Learned Family Court, after appreciating and evaluating the

evidence, dismissed the application filed by the father for

custody of his minor child. Hence, this appeal.

7.

Learned counsel appearing for the appellant/father would

submit that as per evidence, the respondent is not in hold of

sufficient means to take care of the child. He referred to the

statement of appellant (PW-1), as also the statement of Suklal

Bandhe (DW-1) to say that he was getting only a pension of

Rs.2,065/- per month whereas income of the appellant was

more than Rs.70,000/- - Rs.80,000/- per annum,

consequently, at the mere glance, it would reveal that who

would be in better position to take care of the minor child -

Tanishq. He would further submit that as and when father

wanted to visit, that to