Jharkhand High Court
Sakuntala Devi vs Rabindra Kumar Burnwal on 14 July, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
2026:JHHC:20888-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 153 of 2019
Sakuntala Devi, aged about 64 years, W/o Late
Lakshman Modi, resident of Village-Domchanch, in front
of Deepak Cement Centre, P.O. & P.S.-Domchanch,
District-Koderma.
Respondent No.3/Appellant
Versus
1.Rabindra Kumar Burnwal, aged about 36 years, son
of Indradeo Modi, resident of village-Chandwar, Station
Road Pipadih, P.O. & P.S. Chandwara, District-
Koderma. .... Petitioner/Respondent
2.Sunita Devi, aged about 30 years, W/o Rabindra
Kumar Burnwal at present W/o Dheeraj Kumar Jain,
D/o Late Lakshman Modi, R/o Ahirana, Ram Ghat,
Ayodhaya, P.O. & P.S. Kotwali Ayodhaya, District -
Faizabad (Uttar Pradesh.
...Opp.Party/Performa Respondent/Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Sahil, Advocate
For the Respondent : Mrs. Rashmi Kumar, Advocate
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CAV/Reserved on 03.07.2026 Pronounced on 14/07/2026
Per Sujit Narayan Prasad, J.
Prayer:
1. The instant appeal, under Section 19(1) of the Family
Court Act, 1984, is directed against the order/judgment
dated 18.02.2019, passed by the learned Principal Judge,
Family Court, Koderma in Original Suit No. 22 of 2018,
whereby and whereunder the petition filed by the
respondent no. 1 under Section 25 of the Guardian and
Wards Act, 1890 for custody of minor children has been
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guardian of minor Sarika Kumari is entitled for her
custody.
Brief facts of the case:
2. The brief facts of the case, as taken note in the impugned
order, needs to be referred herein as under:
3. The petitioner, respondent no. 1 herein, was married with
Sunita Devi [respondent no. 2 herein] in the month of
April 2008 as per Hindu rites and customs prevailing in
their caste. After the marriage they started living together
as husband and wife and from the wedlock a female child
was born on 30.05.2009 namely Sarika Kumari.
4. It is further stated that the respondent Sunita Devi while
living in the matrimonial home since beginning her
attitude was non-cooperative and sometimes, she also
quarrels with the petitioner. The respondent left the
company of the petitioner. The father of the respondent,
namely, Lakshman Modi was having business of stone
chips. He had proposed the petitioner for partnership
business and for that said Lakshman Modi taken Rs.
2,65,000/- from the petitioner.
5. It is alleged that the father of the respondent cheated the
petitioner and when the petitioner demanded money then
as per the petitioner, he was falsely implicated in a case by
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filing a complaint through the respondent-wife, Sunita
Devi vide complaint case No. 482/2010, in which, the
petitioner was found guilty and accordingly convicted and
released from custody on 06.05.2015.
6. It has been stated that the petitioner came to know from
the neighbour of Lakshman Modi when the petitioner was
in custody that his wife Sunita Devi has performed second
marriage with one Dheeraj Kumar Jain of village- Ahirana,
Ramghat, Ayodhaya, P.S.- Kotawali Ayodhaya, District-
Faizabad on 22.01.2014 as per Hindu rites and customs.
It has been also stated that the respondent-Sunita Devi
has blessed with a son from her second husband born on
22.11.2014.
7. The petitioner has stated that his wife Sunita Devi left her
daughter Sarika Kumari uncared just like orphan with her
father Lakshman Modi and mother Shakuntala Devi who
were respondent no-2 and 3 before the family court.
Lakshman Modi and Shakuntala Devi are parents of
Sunita Devi.
8. It is stated that the minor child of the petitioner is not
being properly taken cared in their house. The petitioner
being father and natural guardian of Sarika Kumari legally
entitled to take custody of minor. In the plaint, further
statement has been made that the mother of Sarika
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Kumari has already solemnized second marriage and the
minor child has been deserted by the respondent and said
Sarika Kumari is being treated as family servant in the
house of maternal grand-parents. On the aforesaid ground
prayer has been made that the minor child would be better
cared under the petitioner, so petitioner prayed for the
custody of the minor being natural guardian.
9. Notices were issued to the respondents. Although notice
was served upon respondent No.1, Sunita Kumari [wife]
through Speed-Post and publication in local newspaper
but she did not appear, therefore, the suit proceeded ex-
parte against her vide order dated 12.09.2018.
10. Respondent Nos. 2 and 3, the maternal grand-parents of
the minor and father and mother of Sunita Devi
respectively, appeared and filed their show-cause reply.
11. It has been replied that suit is not maintainable either in
law or facts as such same is fit to be dismissed. It has
been also stated that the petitioner [father of the ward] has
no valid cause of action to bring the suit. It has been
admitted that the respondent No.1 [Sunita Kumari] was
married with the petitioner in the month of April 2008. It
has been alleged that after few months of the marriage the
petitioner started demanding additional dowry from the
respondent No.1 and due to non-fulfillment of the demand
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of additional dowry tortured started on the respondent
No.1 in various ways.
12. The respondent no. 2 and 3 have also replied that from the
wedlock of the petitioner and respondent No.1 they
blessed with a female child on 30.05.2009. It has been
further replied that the petitioner never cared the newly
born child nor provided any expenses during the birth of
the child.
13. The entire expenses were born by the father of the
respondent No-1, Sunita Devi. It has been stated that the
respondent No-1 was ousted from the matrimonial home
along with the newly born baby born from the wedlock. It
has further been stated that the petitioner was convicted
on the complaint of the respondent No.1, Sunita devi, and
was in judicial custody.
14. It has been denied that the Sunita Devi had performed
second marriage with Dheeraj Kumar Jain. It has further
been submitted that even Sunita Devi is facing starvation
as she has no source of income. It has been admitted by
the respondents that they are the maternal grand-parents
of Sarika Kumari. It has been also replied that the
respondent No.2 and 3 have made entire expenses and
maintaining Sarika Kumari and Sarika Kumari is studying
in Central Convent Public School Domchanch in Class-IV.
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It has been contended that Sarika Kumari is being cared
in better way under the guardianship of respondent Nos. 2
& 3 and the respondent have every apprehension that if
the custody of minor Sarika Kumari will be given to the
petitioner, then her life will be ruined. On the aforesaid
ground, contention was made in the written statement
that the petitioner is not entitled to get the custody of the
child.
15. The learned family court, on the basis of pleading available
on record, framed the issues, and evidences were led on
behalf of parties.
16. The learned Family Court, upon due consideration of the
settled principle governing custody that the welfare of the
minor child is the paramount consideration and upon
appreciation of the evidence adduced by both parties, was
pleased to allow the suit.
17. Aggrieved thereby, the present appeal has been preferred
by respondent no. 3, who is the appellant herein, being
the maternal grandmother of the minor female child.
Submission of learned counsel for the appellant:
18. The learned counsel for the appellant, who is maternal
grandmother of the child has contended that the learned
family court misconstrued the pleadings and evidences
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adduced by the parties resulting into perverse findings,
which vitiates the impugned judgment.
19. Further submission has been made that the learned family
court has failed to appreciate the evidences on record,
which fully supported the contention of the appellant with
respect to the fact that the respondent is a man of having
criminal background and is a convicted person, whose
conviction was even sustained up-to appellate court and
after serving the sentence, he has come out from the jail.
20. Further submission has been made that the learned
Family Court did not appreciate the fact that respondent-
father is a convicted person and had never taken care of
his minor female child, namely, Sarika Kumari, right from
her birth. Even the learned family court did not appreciate
the evidence by the minor female child [D.W. 4-Sarika
Kumari], who in her deposition has specifically deposed
that she had not seen her father till date and is residing in
her maternal grandmother’s house and is studying in a
Convent School.
21. Even the principal of the school, where the ward was
studying, who has been examined as court witness no. 1,
has deposed that the ward is topper in her class and is
regular student, which shows that she is being properly
cared at the house of the appellant and even the ward
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herself showed her willingness to stay with the appellant
and not with the respondent-father which fact ought to
have considered by the learned family court because of the
reason that right from the birth of Sarika Kumari, the
respondent no.1 never come in contact with her.
22. Submission has been made that admittedly the
respondent no. 1 is the biological father of said Sarika
Kumari, but he had never discharged the duty of father
rather he committed cruelty upon her being a criminal
minded person and had never taken care of her daughter
and if the custody of child is given to him, there is every
likelihood that her life would be ruined and no proper
education could be extended to her which she is getting in
her maternal grandmother’s house, but that aspect of the
matter has completely been lost sight of by the learned
family court while passing the impugned judgment.
23. Further submission has been made that the appellant had
sufficient mean to provide every sort of facilities for the
welfare of the minor female child [Sarika Kumari] and even
the appellant had discharged the above stated duties right
from her birth and the minor female child also desirous to
live with her maternal grandmother’s as she is emotionally
attached with her.
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24. Therefore, merely on the ground that the petitioner,
respondent no. 1 herein, did not perform second marriage
and is a natural father of the minor female child, Sarika
Kumari, the learned family court while granting custody of
the minor female child to the petitioner/respondent no. 1
herein, has completely ignored the evidences adduced on
behalf of appellant.
25. Further submission has been made that soon after
passing of the impugned judgment and decree, the
petitioner, the respondent no. 1 herein, performed second
marriage with one Kajal Kumari on 08.03.2019, which
shows the intention of the petitioner, and it is hard to
believe that a step-mother would take care of child other
than her own.
26. Learned counsel for the appellant has further submitted
that when the very basis of passing impugned judgment
that the petitioner-father had not performed second
marriage has now gone, the impugned judgment requires
interference by this Court.
27. The learned counsel for the appellant based upon the
aforesaid ground has submitted that since there is no
consideration of these facts by learned trial court, as such
the impugned judgment requires interference by this
Court.
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Submission of learned counsel for the respondent no. 1:
28. Per contra, learned counsel for the respondent no. 1, the
father of the ward, has taken the various grounds in
defending the order passed by the learned family court.
29. Submission has been made that the wife of respondent
no.1 namely Sunita Devi, was ill-behaviour lady and she
left the company of the petitioner (respondent no.1 herein).
It is stated that the father of the Sunita Devi, namely,
Lakshman Modi was having business of stone chips, in
which, he had proposed the petitioner/respondent no.1 for
partnership business and for that said Lakshman Modi
taken Rs. 2,65,000/- from the petitioner/respondent no.1.
30. But the father of the Sarita kumari cheated the
petitioner/respondent no.1. and when the petitioner
demanded money then he was falsely implicated in a case
by filing a complaint through the respondent-wife, Sunita
Devi vide complaint case No. 482/2010, in which, the
petitioner was convicted and released from custody on
06.05.2015.
31. It has been stated that when the respondent
no.1/petitioner was in custody that his wife Sunita Devi
performed second marriage with one Dheeraj Kumar Jain
on 22.01.2014 as per Hindu rites and customs, wherefrom
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she blessed with a son from her second husband born on
22.11.2014.
32. Further submission has been made that his wife Sunita
Devi left her daughter Sarika Kumari uncared just like
orphan with her father Lakshman Modi and mother
Shakuntala Devi who were respondent no-1 and 2 before
the family court.
33. Learned counsel for the respondent no. 1 has further
submitted that the minor child of the petitioner/
respondent, since was not being properly cared, as such,
the petitioner/respondent being the father and natural
guardian of Sarika Kumari is legally entitled to take
custody of minor female child, and the said fact has been
taken note of learned family court and accordingly custody
of minor female child has been handed over to the
petitioner/respondent i.e. father of female minor child.
34. The learned family court based upon the aforesaid ground
and on consideration of the aforesaid fact has passed the
impugned judgment which requires no interference by this
Court.
Analysis
35. We have heard learned counsel for the parties and gone
through pleading available on record as also the finding
recorded by learned family court.
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36. This Court, before going to examine as to whether the
finding recorded by learned family court allowing the
custody of the minor daughter to the father, the
respondent no. 1 herein, requires interference needs to
refer herein the provision of law as provided under the
Hindu Minority and Guardianship Act, 1956 and as also
the Guardians and Wards Act, 1890.
37. Section 6 of the Hindu Minority and Guardianship Act,
1956 deals with natural guardian of a Hindu minor,
Section 9 thereof deals with the testamentary guardians
and their powers and Section 13 deals with the provision
of welfare of the minor to be paramount consideration. For
ready reference, these provisions are quoted as under:
“6. Natural guardians of a Hindu minor.–The natural
guardians of a Hindu minor; in respect of the minor’s
person as well as in respect of the minor‟s property
(excluding his or her undivided interest in joint family
property), are–
(a) in the case of a boy or an unmarried girl–the
father, and after him, the mother: provided that the
custody of a minor who has not completed the age of
five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate
unmarried girl–the mother, and after her, the father;
(c) in the case of a married girl–the husband: Provided that
no person shall be entitled to act as the natural guardian of
a minor under the provisions of this section–
(a) if he has ceased to be a Hindu, or
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(b) if he has completely and finally renounced the
world by becoming a hermit (vanaprastha) or an
ascetic (yati or sanyasi).
Explanation.–In this section, the expressions “father”
and “mother” do not include a step-father and a step-
mother.
9. Testamentary guardians and their powers.–(1) A
Hindu father entitled to act as the natural guardian
of his minor legitimate children may, by will appoint a
guardian for any of them in respect of the minor‟s person or
in respect of the minor‟s property (other than the undivided
interest referred to in section 12) or in respect of both. (
2) An appointment made under sub-section (1) shall have no
effect if the father predeceases the mother, but shall revive
if the mother dies without appointing, by will, any person
as guardian.
(3) A Hindu widow entitled to act as the natural guardian of
her minor legitimate children, and a Hindu mother entitled
to act as the natural guardian of her minor legitimate
children by reason of the fact that the father has become
disentitled to act as such, may, by will, appoint a guardian
for any of them in respect of the minor‟s person or in respect
of the minor‟s property (other than the undivided interest
referred to in section 12) or in respect of both.
(4) A Hindu mother entitled to act as the natural guardian of
her minor illegitimate children may; by will, appoint a
guardian for any of them in respect of the minor‟s person or
in respect of the minor’s property or in respect of both.
(5) The guardian so appointed by will has the right to act as
the minor‟s guardian after the death of the minor‟s father or
mother, as the case may be, and to exercise all the rights of
a natural guardian under this Act to such extent and
subject to such restrictions, if any, as are specified in this
Act and in the will.
(6) The right of the guardian so appointed by will shall,
where the minor is a girl, cease on her marriage.
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13. Welfare of minor to be paramount
consideration.–(1) In the appointment of declaration
of any person as guardian of a Hindu minor by a
court, the welfare of the minor shall be the
paramount consideration.
(2) No person shall be entitled to the guardianship by
virtue of the provisions of this Act or of any law
relating to guardianship in marriage among Hindus,
if the court is of opinion that his or her guardianship
will not be for the welfare of the minor.”
38. It needs to refer herein that under Section 6 of the Hindu
Minority and Guardianship Act, 1956, it has specifically
been mentioned, as per the relevancy of the case herein
that the natural guardians of a Hindu minor; in the case
of an unmarried girl is –the father, and after him, the
mother, provided that the custody of a minor who has not
completed the age of five years shall ordinarily be with the
mother. But, herein, the female child was 9 years at the
time of filing of the suit.
39. Now, coming to Section 9 wherein also, which speaks
about testamentary guardians and their powers, which
also provided that a Hindu father shall be entitled to act
as the natural guardian of his minor legitimate children.
40. However, Section 13 of the Act speaks about welfare of
minor is of paramount consideration and it has been
specifically mentioned that in case of appointment of
declaration of any person as guardian of a Hindu minor by
a court, the welfare of the minor shall be the paramount
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consideration. Further, it has in unequivocal term has
mentioned that no person shall be entitled to the
guardianship by virtue of the provisions of this Act or of
any law relating to guardianship in marriage among
Hindus, if the court is of opinion that his or her
guardianship will not be for the welfare of the minor.
Meaning thereby, it is the bounden duty of the Court to
ascertain of whose custody the welfare of the minor would
be and then only, the custody of the minor child is to be
given.
41. In this regard, it further requires refer herein the
provisions of Guardians and Wards Act, 1890, wherein the
word ‗minor‟, ‗guardian‟ and also the „the power of the court
to make order as to guardianship’ has been mentioned. For
ready reference, the relevant provision of the Act, 1890 is
quoted as under:
“4. (1) “minor” means a person who, under the provisions
of the Indian Majority Act, 1875, (9 of 1875) is to be deemed
not to have attained his majority:
(2) “guardian” mean‟s a person having the care of the
person of a minor or of his property, or of both is person and
property:
7. Power of the Court to make order as to
guardianship. –(1) where the Court is satisfied that it is
for the welfare of a minor that an order should be made–
(a) appointing a guardian of his person or property, or both,
or (b) declaring a person to be such a guardian, the Court
may make an order accordingly. (2) An order under this
section shall imply the removal of any guardian who has15
2026:JHHC:20888-DBnot been appointed by will or other instrument or appointed
or declared by the Court. (3) Where a guardian has been
appointed by will or other instrument or appointed or
declared by the Court, an order under this section
appointing or declaring another person to be guardian in his
stead shall not be made until the powers of the guardian
appointed or declared as aforesaid have ceased under the
provisions of this Act.
17. Matters to be considered by the Court in appointing
guardian. –(1) In appointing or declaring the guardian of a
minor, the Court shall, subject to the provisions of this
section, be guided by what, consistently with the law to
which the minor is subject, appears in the circumstances to
be for the welfare of the minor. (2) In considering what will
be for the welfare of the minor, the Court shall have regard
to the age, sex and religion of the minor, the character and
capacity of the proposed guardian and his nearness of kin
to the minor, the wishes, if any, of a deceased parent, and
any existing or previous relations of the proposed guardian
with the minor or his property. (3) If the minor is old enough
to form an intelligent preference, the Court may consider
that preference. 1 * * * * * (5) The Court shall not appoint or
declare any person to be a guardian against his will.”
42. The law, therefore, is well settled that even though the
father is the natural guardian as stipulated in the statute
but the paramount consideration in the matter of handing
over the custody of the child is welfare of the child.
43. The law relating to custody of minors has received an
exhaustive consideration by the Hon’ble Apex Court in a
series of pronouncements. In the case of Gaurav
Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 the
principles of English and American law in this regard were
considered by Hon’ble Apex Court to hold that the legal
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position in India is not in any way different. Noticing the
judgment of the Bombay High Court in Saraswatibai
Shripad Ved v. Shripad Vasanji Ved [AIR 1941 Bom
103] , Rosy Jacob v. Jacob A. Chakramakkal (1973) 1
SCC 840 and Thrity Hoshie Dolikuka v. Hoshiam
Shavaksha Dolikuka (1982) 2 SCC 544, the Hon’ble
Apex eventually concluded in paras 50 and 51 which
reads as under:
“50.That when the court is confronted with conflicting
demands made by the parents, each time it has to justify the
demands. The court has not only to look at the issue on
legalistic basis, in such matters human angles are relevant
for deciding those issues. The court then does not give
emphasis on what the parties say, it has to exercise a
jurisdiction which is aimed at the welfare of the minor. As
observed recently in Mausami Moitra Ganguli
case [Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7
SCC 673] , the court has to give due weightage to the child’s
ordinary contentment, health, education, intellectual
development and favourable surroundings but over and
above physical comforts, the moral and ethical values have
also to be noted. They are equal if not more important than
the others.
51. The word „welfare‟ used in Section 13 of the Act has to
be construed literally and must be taken in its widest sense.
The moral and ethical welfare of the child must also weigh
with the court as well as its physical well-being. Though the
provisions of the special statutes which govern the rights of
the parents and guardians may be taken into consideration,
there is nothing which can stand in the way of the court
exercising its parens patriae jurisdiction arising in such
cases.”
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44. Thus, the Hon’ble Apex Court has categorically held that
while considering the issue of custody of the minor child
the court has not only to look at the issue on legalistic
basis, in such matters human angles are relevant for
deciding those issues. Further it has been held that the
Court should not emphasis only on what the parties say
rather the welfare of the minor should be paramount
consideration. Further the Hon’ble Apex Court has opined
that the Court has to give due weightage to the child’s
ordinary contentment, health, education, intellectual
development and favourable surroundings but over and
above physical comforts, the moral and ethical values have
also to be noted.
45. The Hon’ble Apex Court in the aforesaid Judgment
interpreted the word ‗welfare’ used in Section 13 of the Act
and has observed that it must be taken in its widest
sense, though the provisions of the special statutes which
govern the rights of the parents and guardians may be
taken into consideration, there is nothing which can stand
in the way of the court exercising its ―parens patriae
jurisdiction‖ arising in such cases.
46. It needs to refer herein that in child custody matters, the
court’s “parens patriae” jurisdiction empowers the Court to
act as a guardian for the child, prioritizing their best
interests above all else. This principle, allows the court to
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intervene and make decisions that protect the child’s
welfare, even if it means overriding the wishes of the
parents or guardians.
47. In the case of Nil Ratan Kundu v Abhijit Kundu, 2008
(9) SCC 413 the Hon’ble Apex Court has held that in
deciding a difficult and complex question as to the custody
of a minor, a court of law should keep in mind the relevant
statutes and the rights flowing therefrom. But such cases
cannot be decided solely by interpreting legal provisions. It
is a human problem and is required to be solved with
human touch. A court while dealing with custody cases, is
neither bound by statutes nor by strict rules of evidence or
procedure nor by precedents. In selecting proper guardian
of a minor, the paramount consideration should be the
welfare and well-being of the child. In selecting a guardian,
the court is exercising ―parens patriae jurisdiction‖ and is
expected, nay bound, to give due weight to a child’s
ordinary comfort, contentment, health, education,
intellectual development and favourable surroundings.
But over and above physical comforts, moral and ethical
values cannot be ignored. They are equally, or we may say,
even more important, essential and indispensable
considerations. If the minor is old enough to form an
intelligent preference or judgment, the court must
consider such preference as well, though the final decision
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should rest with the court as to what is conducive to the
welfare of the minor.
48. In the case of Yashita Sahu v State of Rajasthan,
(2020) 3 SCC 67, the Hon’ble Apex Court has propounded
that the welfare of the child is paramount in matters
relating to custody. In this context, we may refer to Para
22 thereof, which reads as follows:
22. A child, especially a child of tender years requires the
love, affection, company, protection of both parents. This is
not only the requirement of the child but is his/her basic
human right. Just because the parents are at war with
each other, does not mean that the child should be denied
the care, affection, love or protection of any one of the two
parents. A child is not an inanimate object which can be
tossed from one parent to the other. Every separation, every
reunion may have a traumatic and psychosomatic impact
on the child. Therefore, it is to be ensured that the court
weighs each and every circumstance very carefully before
deciding how and in what matter the custody of the child
should be shared between both the parents. Even if the
custody is given to one parent the other parent must have
sufficient visitation rights to ensure that the child keeps in
touch with the other parent and does not lose social,
physical and psychological contact with any one of the two
parents. It is only in extreme circumstances that one parent
should be denied contact with the child. Reasons must be
assigned if one parent is to be denied any visitation rights
or contact with the child. Courts dealing with the custody
matters must while deciding issues of custody clearly
define the nature, manner and specifics of the visitation
rights.‟
49. In the case of Gaytri Bajaj v. Jiten Bhalla, (2012) 12
SCC 471, the Hon’ble Apex Court has observed that it is
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2026:JHHC:20888-DBthe welfare and interest of the child and not the rights of
the parents which is the determining factor for deciding
the question of custody and the question of welfare of the
child has to be considered in the context of the facts of
each case and decided cases on the issue may not be
appropriate to be considered as binding precedents. For
ready reference the relevant paragraph of the aforesaid
judgment is being quoted as under:
14. From the above it follows that an order of custody of
minor children either under the provisions of the
Guardians and Wards Act, 1890 or the Hindu
Minority and Guardianship Act, 1956 is required to
be made by the court treating the interest and
welfare of the minor to be of paramount importance.
It is not the better right of either parent that would require
adjudication while deciding their entitlement to custody.
The desire of the child coupled with the availability of a
conducive and appropriate environment for proper
upbringing together with the ability and means of the
parent concerned to take care of the child are some of the
relevant factors that have to be taken into account by the
court while deciding the issue of custody of a minor. What
must be emphasised is that while all other factors are
undoubtedly relevant, it is the desire, interest and welfare
of the minor which is the crucial and ultimate consideration
that must guide the determination required to be made by
the court.
50. It is settled position of law that there cannot be any
straitjacket formula in the matters of custody. „Welfare of
the child‟ is of paramount importance, reference in this
regard may be taken from the judgment rendered by the
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Hon’ble Apex Court in the case of Gautam Kumar
Das v. State (NCT of Delhi), (2024) 10 SCC 588.
51. In the case of Shazia Aman Khan v. State of Orissa,
(2024) 7 SCC 564 the Hon’ble Apex Court while referring
the ratio of Nil Ratan Kundu v. Abhijit Kundu, (2008) 9
SCC 413 has observed that welfare of the children is to be
seen and not the rights of the parties, the relevant
paragraph of the aforesaid judgment is being quoted as
under:
“19. In Nil Ratan Kundu v. Abhijit Kundu [Nil Ratan
Kundu v. Abhijit Kundu, (2008) 9 SCC 413] , this Court
laid down the principles governing custody of minor
children and held that welfare of the children is to be seen
and not the rights of the parties by observing as under :
(SCC pp. 428-29, paras 52 & 55)
―Principles governing custody of minor children
52. In our judgment, the law relating to custody of a child
is fairly well-settled and it is this. In deciding a difficult
and complex question as to the custody of minor, a court
of law should keep in mind relevant statutes and the
rights flowing therefrom. But such cases cannot be
decided solely by interpreting legal provisions. It is a
human problem and is required to be solved with human
touch. A court while dealing with custody cases, is neither
bound by statutes nor by strict rules of evidence or
procedure nor by precedents. In selecting proper guardian
of a minor, the paramount consideration should be the
welfare and well-being of the child. In selecting a
guardian, the court is exercising parens
patriae jurisdiction and is expected, nay bound, to give
due weight to a child’s ordinary comfort, contentment,
health, education, intellectual development and favourable
surroundings. But over and above physical comforts,
22
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moral and ethical values cannot be ignored. They are
equally, or we may say, even more important, essential
and indispensable considerations. If the minor is old
enough to form an intelligent preference or judgment, the
court must consider such preference as well, though the
final decision should rest with the court as to what is
conducive to the welfare of the minor.
***
55. We are unable to appreciate the approach of the courts
below. This Court in a catena of decisions has held that the
controlling consideration governing the custody of children
is the welfare of children and not the right of their parents.‖
(emphasis supplied)
21. This Court in Roxann Sharma v. Arun Sharma [Roxann
Sharma v. Arun Sharma, (2015) 8 SCC 318 : (2015) 4 SCC
(Civ) 87] , opined that the child is not a chattel or ball that
it is bounced to and fro. Welfare of the child is the focal
point. Relevant lines from para 18 are reproduced
hereunder : (SCC p. 328)
―18. … There can be no cavil that when a court is
confronted by conflicting claims of custody there are no
rights of the parents which have to be enforced; the
child is not a chattel or a ball that is bounced to and
fro the parents. It is only the child’s welfare which is
the focal point for consideration. Parliament rightly
thinks that the custody of a child less than five years
of age should ordinarily be with the mother and this
expectation can be deviated from only for strong
reasons.‖
20. This Court has consistently held that welfare of the
child is of paramount consideration and not personal law
and statute. In Ashish Ranjan v. Anupma Tandon [Ashish
Ranjan v. Anupma Tandon, (2010) 14 SCC 274 : (2011) 4
SCC (Civ) 948] , this Court held as under : (SCC p. 282,
para 19)
―19. The statutory provisions dealing with the custody
of the child under any personal law cannot and must
not supersede the paramount consideration as to what
is conducive to the welfare of the minor. In fact, no
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statute on the subject, can ignore, eschew or obliterate
the vital factor of the welfare of the minor.‖
22. Another principle of law which is settled with
reference to custody of the child is the wish of the child, if
she is capable of. Reference can be made to Rohith
Thammana Gowda v. State of Karnataka [Rohith
Thammana Gowda v. State of Karnataka, (2022) 20 SCC
550 : 2022 SCC OnLine SC 937] case. It was held as
under : (SCC para 18)
“18. We have stated earlier that the question „what is
the wish/desire of the child‟ can be ascertained through
interaction, but then, the question as to „what would be
the best interest of the child‟ is a matter to be decided
by the court taking into account all the relevant
circumstances. A careful scrutiny of the impugned
judgment would, however, reveal that even after
identifying the said question rightly the High Court had
swayed away from the said point and entered into
consideration of certain aspects not relevant for the said
purpose. We will explain the raison d’etre for the said
remark.”
52. Thus, from the aforesaid settled position of law it is
evident that the consideration governing the custody of
children is the ―welfare of the children‖. Further, the
welfare of child is determined neither by economic
affluence nor a deep mental or emotional concern for the
well-being of the child. The answer depends on the
balancing of all these factors and determining what is best
for child’s total well-being.
53. In the backdrop of the provisions of law and judicial
pronouncements, in order to assess the welfare of the
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minor child, we have gone through the oral evidence
adduced by the parties.
54. PW-1, Sanjeev Kumar, in his testimony has stated that he
is engaged in teaching profession for the last 15 years. He
knows Rabindra Kumar Burnwal; Sunita Devi; Laxman
Modi and Shakuntala Devi. Sunita Devi is the wife of
Rabindra Kumar Burnwal and Shakuntala Devi and
Laxman Modi is the father-in-law and mother-in-law of
Rabindra Kumar Burnwal. The marriage of Sunita Devi
and Rabindra Kumar Burnwal was solemnized in the year
2008 and after one year of marriage they were blessed
with one daughter. He further deposed that father of
Sunita Devi, namely, Laxman Modi was engaged in
business of Crusher and Rabindra Kumar Burnwal gave
Rs. 2,65,000/- for making partner of business but
Laxman Modi did not make him partner. He further
deposed that when Rabindra Kumar Burnwal demanded
his money back, Laxman Modi made a case lodged under
Section 498A by her daughter Sunita Devi, in which
Rabindra had to go to Jail. After that Sunita Devi
solemnized second marriage with one Dhiraj Kumar Jain.
He has further deposed that daughter of the petitioner
[Rabindra Kumar Burnwal], namely, Sarika Kumari was
kept by Laxman Modi and her mother Sunita Devi left her
daughter Sarika Devi after solemnizing second marriage.
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He has further submitted that the Rabindra Kumar
Burnwal has sufficient means to take care of his daughter
and he has paternal property also.
55. In cross-examination, though he has stated that Sunita
Devi has solemnized second marriage but he did not go
there.
56. P.W. 2-Indradeo Modi, is the father of the petitioner. He
has also fully supported the case of the petitioner and
nothing comes in his cross-examination.
57. P.W.-2 has deposed that petitioner is his son whereas the
respondent No.2 & 3 are his Samdhi. The witness has
deposed that Sunita Devi, the respondent No.1 was the
wife of the petitioner. It has been also stated that
Lakshman Modi, the respondent No.2 died during the
proceeding of the case. The marriage between petitioner
and the respondent No.1 was solemnized in the year 2008
and from the wedlock Sarika Kumari was born who is
presently aged about nine and half years old. It has been
deposed that the petitioner and the father of the Sunita
Devi were partners in business of crusher mill, when the
petitioner wanted to withdraw from partnership and
demanded his share of money from the respondent No.2,
then in connivance with his daughter, the petitioner was
falsely implicated in dowry case. It has been also deposed
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that when the petitioner was in custody, the said
Lakshman Modi solemnized the second marriage of Sunita
Devi with one Dhiraj Kumar Jain without seeking divorce
from the petitioner and presently the said Sunita Devi is
residing in Ramghat Ayodhya in village Ahirana. It is also
deposed that from the wedlock of second marriage there is
a son born to respondent no-1. The witness has deposed
that the maternal grandparents of the Sarika Kumar are
old aged, so respondent no-3 is not able to properly care
the minor Sarika Kumari. There is nothing relevant has
come in his cross-examination of this witness to discuss
here.
58. P.W. 3-Rabindra Kumar Burnwal is the petitioner himself,
who has deposed that he was married with Sunita Devi in
the year 2008 as per Hindu rites and customs and from
the wedlock he was blessed with a daughter who is
presently aged about nine and half years old. The witness
has deposed that respondents No. 2 and 3 are father-in-
law and mother-in-law of the witness. The father-in-law
the respondent no-2 has already died during the pendency
of the case. The witness has also stated that the dispute
arose between him and the said Lakshman Modi as
because they were partners in a crusher mill business and
when the petitioner demanded money of his share to
withdraw from partnership business then the witness
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(Petitioner) was falsely implicated in a dowry case by his
wife on the instruction of her father. The petitioner was
convicted U/s 498A of IPC and now released from custody
after serving the sentence. It has been also deposed that
the respondent No.1 was married with one Dhiraj Kumar
Jain resident of Ahirana Ramghat Ayodhya on 22.01.2014
and from the second marriage, the wife of the witness has
blessed with a son.
59. The witness has deposed that after the marriage his wife,
the respondent No.1 left the daughter born from the
wedlock namely Sarika Kumari with her parents and went
to her matrimonial home at Ayodhya. The witness has
further deposed that he has sufficient money to maintain
his daughter. It has been deposed that Shakuntala Devi is
not able to properly take care of his daughter. The witness
is not even allowed to meet his daughter when he had
gone to visit on 06.05.2015.
60. In his cross-examination, he has deposed that since
August 2009, he is living separately from the respondent
no-1 and he is not in contact. The witness has stated that
he has made entire expenses in the birth of his daughter
Sarika Kumari. The witness has denied the suggestion
that he has deposed falsely in the affidavit.
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61. P.W.- 4 Sushila Devi, is the mother of the petitioner. She
has deposed identical facts in her affidavit as stated by the
P.W.-2 and P.W.-3. So, the same is not being reproduced
for the sake of brevity.
62. The other side has also adduced their evidence on
affidavit.
63. Out of that the most important witnesses is the mother-in-
law of the petitioner-respondent, [the appellant herein]
who has been examined as DW-3 Shakuntala Devi, has
also admitted the marriage of Sunita Devi with Ravindra
Kumar Burnwal, the petitioner-appellant herein in the
year 2008 and also admitted that a female child namely
Sarika Kumari born out of their wedlock who was aged
about nine years at the time of deposition. She (DW-3) has
deposed that due to the dispute between the petitioner
and his wife (Respondent no-1) was brought to the
parental house where she was blessed with a female child
and the entire expenses during delivery was born by the
respondents. She also deposed that after the death of her
husband she is looking after the child and bearing entire
expenses of her study and other needs.
64. She further deposed that there is no danger to the life of
said Sarika Kumari. In her cross-examination, the witness
has disclosed that the admission of Sarika Kumar was
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done by the husband of the witness. She admitted the
name of father of Sarika Kumari is Ravindra Prasad
Burnwal. It is also admitted by the witness that this case
has been filed by the petitioner after release from judicial
custody. The petitioner was convicted in case No.
440/2015.
65. DW-4- Sarika Kumari, is the minor daughter of petitioner
respondent (herein) who has deposed that she has come to
the court from her maternal grand-parents house. She
stated that till date she has not seen her father. It is also
stated that she is studying in class-IV in Central Convent
Public School, Giridih road, Domchanch. The school fee is
Rs. 500/-, the fee is paid by the maternal grand-mother of
the witness.
66. In her cross-examination, she has stated that her mother
is not staying with her. In paragraph-7 of her cross-
examination, the witness has admitted that she has
occasionally seen her mother. It is also admitted by the
witness that she has never seen her mother staying with
her. It is also admitted that her maternal grand-mother is
not doing anything. The witness deposed that she has two
maternal uncle who are looking after the petitioner. The
children of maternal uncle are not studying in the school
in which the witness is studying. The sons of the maternal
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uncle are studying in GS Public School and Lakshya
Convent School.
67. The other two witnesses examined as DW-1 Manohar
Pandey and DW- 2 Mathura Modi have also stated almost
same facts which are mentioned in the show-cause and
deposed before the learned Family court by the DW-3 and
DW-4. Therefore, their version is not repeated herein for
the sake for convenience.
68. The learned family Court has examined the headmaster of
the Central Public School as Court witness to know about
the study of the child. As per the headmaster the said
Sarika Kumari attend the class regularly, her performance
in the school is also average.
69. From the pleadings available on record, it is evident that
admittedly the suit was filed by the father for custody of
the minor female child aged about 9 years at the time of
filing of the suit.
70. It is a settled position of law as discussed and referred
hereinabove that in all matters of custody irrespective of
the law under which the same is sought, the welfare of the
child is of paramount-importance.
71. The Court has not only to look at the issue on legalistic
basis but has to take into consideration the human angles
as well.
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72. From the testimonies of the witnesses and pleadings
available on record, it is admitted fact that the petitioner,
the respondent no. 1 herein, was married with Sunita Devi
[respondent no. 2/performa respondent herein] in the
month of April 2008 as per Hindu rites and customs
prevailing in their caste. After the marriage they started
living together as husband and wife and from the wedlock
a female child was born on 30.05.2009 namely Sarika
Kumari, for whose custody, the proceeding is before this
Court.
73. It is the case of the petitioner-respondent no. 1 herein that
respondent Sunita Devi-wife while living in the
matrimonial home since beginning her attitude was non-
cooperative and sometimes, she also quarrels with the
petitioner and she left the company of the petitioner.
74. It is alleged that the father of the respondent/performa
respondent cheated the petitioner/respondent and when
the petitioner/respondent demanded money then as per
the petitioner/respondent he was falsely implicated in a
case by filing a complaint through the respondent-wife,
Sunita Devi vide complaint case No. 482/2010, in which,
the petitioner/respondent was found guilty and
accordingly convicted and released from custody on
06.05.2015.
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75. It is further the case of the petitioner, who is respondent
no. 1 herein, that during the period of his custody he came
to know that his wife, Sunita Devi, had contracted a
second marriage with one Dheeraj Kumar Jain on
22.01.2014, and that from the said wedlock a male child
was born on 22.11.2014.
76. It is the case of the petitioner/respondent that his wife
Sunita Devi left her daughter Sarika Kumari uncared just
like orphan and further the father of Sunita Devi namely
Lakshman Modi, died during pendency of the suit. Under
the aforesaid background, the petitioner being father and
natural guardian of Sarika Kumari filed the suit being
stating that he is legally entitled to take custody of minor.
77. Here, it would be mention that in spite of notices being
issued to the respondent-wife [Sunita Devi], and all efforts
to secure her appearance even by way of paper
publication, she did not appear, therefore, the suit
proceeded ex-parte by the learned family court against her
vide order dated 12.09.2018.
78. It further needs to mention herein that from the pleadings
available on record, it further appears that no efforts have
been taken by the respondent-wife [Sunita Devi] for
custody of the minor child rather the appeal has been filed
by the maternal grandmother, who is aged about 71 years
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as of now admittedly having no independent source of
income.
79. Before the learned family court, the respondent Nos. 2 and
3, the maternal grand-parents of the minor and father of
Sunita Devi respectively, appeared before the learned
family court and filed their show-cause.
80. It has been admitted that the respondent No.1 [Sunita
Kumari] was married with the petitioner in the month of
April 2008. It has further been stated that the petitioner
was convicted on the complaint of Sunita Devi, and was in
judicial custody. However, it has been denied that the
Sunita Devi had performed second marriage with Dheeraj
Kumar Jain.
81. Before the learned family Court, the witnesses produced
on behalf of petitioner/respondent Rabindra Kumar
Burnwal fully support the case of the petitioner. They all
in one voice has deposed that Rabindra Kumar Burnwal
(respondent/petitioner) invested some money in the Stone
Chip business of his father-in-law and when Rabindra
Kumar Burnwal demanded his money back, his father-in-
law, namely, Laxman Modi made a case lodged under
Section 498A by her daughter Sunita Devi, in which
Rabindra had to go to Jail. After that the wife of the
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petitioner, Sunita Devi solemnized second marriage with
one Dhiraj Kumar Jain.
82. They have further deposed that daughter of the petitioner
[Rabindra Kumar Burnwal], namely, Sarika Kumari was
kept by Laxman Modi and her mother Sunita Devi left her
daughter Sarika Kumari after solemnizing second
marriage.
83. They have further submitted that the Rabindra Kumar
Burnwal has sufficient means to take care of his daughter
and he has paternal property also.
84. Whereas, the other side witness, in particular, the
appellant, who is DW-3 Shakuntala Devi, has deposed
that the petitioner tortured her daughter and ousted her
daughter and her grand-daughter [Sarika Kumari] from
his house and since then they are living with them. She
has denied that Sunita Devi has solemnized second
marriage. But admittedly, even after being noticed she did
not appear to prove the factum of second marriage.
85. The most important witness herein is the child, who was
examined as DW-4- Sarika Kumari, who is the minor
daughter of petitioner and respondent No.1 before the
Original Suit [Sunita Devi], who in her cross-examination,
has stated that her mother is not staying with her. In
paragraph-7 of her cross-examination, the witness has
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admitted that she has occasionally seen her mother. It is
also admitted by the witness that she has never seen her
mother staying with her. It is also admitted that her
maternal grand-mother is not doing anything. The
children of maternal uncle are not studying in the school
in which the witness is studying. The sons of the maternal
uncle are studying in GS Public School and Lakshya
Convent School.
86. The learned family Court has examined the headmaster of
the Central Public School as Court witness to know about
the study of the child. As per the headmaster the said
Sarika Kumari attend the class regularly, her performance
in the school is also average.
87. Here, it would be mention that document was filed by the
petitioner/respondent which has been marked as Ext/-1
to Ext.-4 which reveals that the respondent No.2 [Sunita
Devi] solemnized the second marriage with Dhiraj Kumar
Jain.
88. It needs to refer herein that in the case at hand, at the
relevant time the minor female was aged about nine
years. At this age the minor cannot exercise her discretion
intelligently. She lives under the influence of a person with
whom she is living and exercises the discretion as
suggested by that person. The court should be very
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cautious in the said circumstances to see the future and
interest of the minor while deciding the custody. The
welfare of the minor should the prime consideration before
the court for considering the custody of the child. The
court must take into consideration as to what should be
the welfare of the child. In the present case the child is a
female child. Apart from her education it is also relevant to
see the future requirements of the minor female child.
89. The learned family court considering the fact that the
respondent No. 3, the appellant herein is an old lady and
the sons of the respondent No.3 have their own family and
they have to look after their children also and further the
fact that the petitioner/respondent no. 1 has not
solemnized second marriage as also the parents of the
petitioner/respondent no. 1 are alive, has come to the
conclusion that the minor will be cared in a better way in
her parental family. He (father) is the next best person to
look after and care the child after mother. Furthermore,
the father has earning sufficient to maintain his daughter,
being a natural guardian the petitioner have right to get
custody of the child. Accordingly, the suit was decreed in
favour of petitioner/respondent no. 1 holding that the
petitioner/respondent no.1 has been able to make out a
case that being natural guardian of minor Sarika Kumari
can care in better way.
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90. The law has been propounded by Hon’ble Apex Court, as
taken note of above, that the welfare of the child is
paramount consideration while handing over the custody
of the minor.
91. It needs to refer herein that the under Section 6 of the
Hindu Minority and Guardianship Act, 1956, it has
specifically been mentioned, as per the relevancy of the
case herein that the natural guardians of a Hindu minor;
in the case of an unmarried girl is –the father, and after
him, the mother, provided that the custody of a minor who
has not completed the age of five years shall ordinarily be
with the mother. But, herein, the female child was 9 years
at the time of filing of the suit.
92. Now, coming to Section 9 wherein also, which speaks
about testamentary guardians and their powers, which
also provided that a Hindu father shall be entitled to act
as the natural guardian of his minor legitimate children.
93. Furthermore, Section 13 of the Act which says that welfare
of minor is of paramount consideration and it says that no
person shall be entitled to the guardianship by virtue of
the provisions of this Act or of any law relating to
guardianship in marriage among Hindus, if the court is of
opinion that his or her guardianship will not be for the
welfare of the minor.
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94. In the case at hand, mother, who may have been best
suited if otherwise have sufficient means to take care of
minor daughter, has solemenized second marriage and in
proof thereof, the petitioner, the respondent no. 1 has
exhibited the documents. Further, before the learned
family court in spite of notice being served upon the
respondent wife [Sunita Devi] before the family court, she
did not appear and more particularly, the minor child [DW
4] in cross-examination has stated that her mother is not
staying with her.
95. It is also admitted by the witness(P.W.4) that she has
never seen her mother staying with her. It is also admitted
that her maternal grand-mother is not doing anything.
This witness has further stated that the children of
maternal uncle are not studying in the school in which the
witness is studying. The sons of the maternal uncle are
studying in GS Public School and Lakshya Convent
School.
96. In view of the aforesaid facts, the discussion undertaken,
and the judicial pronouncements relied upon, this Court is
of the considered opinion that, if the learned Family Court
has granted custody of the minor female to the father, no
error can be said to have been committed and as such the
judgment rendered by the learned Family Court does not
39
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fall within the ambit of perversity and, therefore, warrants
no interference.
97. This Court, therefore, is of the view that the
order/judgment dated 18.02.2019, passed by the learned
Principal Judge, Family Court, Koderma in Original Suit
No. 22 of 2018 requires no interference.
98. Accordingly, the instant appeal stands dismissed.
99. Pending interlocutory application(s), if any, also stands
disposed of.
I agree (Sujit Narayan Prasad, J.)
(Pradeep Kumar Srivastava, J.) (Pradeep Kumar Srivastava, J.)
14th July, 2026
Alankar/ A.F.R.
Uploaded on 15th July, 2026
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