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HC: Family court was wrong in giving custody of child to mother :)

Shesh Nath Rawat vs Smt. Mamta Rawat on 21 July, 2011



Appeal from Order No. 292 of 2010

Shesh Nath Rawat S/o Late Atuvaru Rawat R/o 49/ Type-4 Graham Marg, VG Colony, Alambag, Lucknow (U.P.) ………. Appellant


Smt. Mamta Rawat W/o Shesh Nath Rawat

D/o Sri Brizmohan, R/o Upper Bazar-Karanprayag District Chamoli (Uttarakhand) …….Respondent

Sri Vinod Tiwari, Advocate present for the appellant. Sri Lok Pal Singh, Advocate present for the respondent.

July 21, 2011

Coram : Hon’ble Prafulla C. Pant, J.

Hon’ble Servesh Kumar Gupta, J.

Prafulla C. Pant, J.(Oral)

This appeal, preferred under Section 19 of Family Courts Act, 1984, is directed against judgment and order dated 17.07.2010, passed by the Principal Judge, Family Court, Dehradun in Suit No. 15/2010, whereby said court has directed the father, under Section 26 of Hindu Marriage Act, 1955, to deliver the custody of the son Aryan be given to mother (respondent).

2. Heard learned Counsel for the parties and perused the papers on record.

3. Brief facts of the case are that the appellant Shesh Nath Rawat got married to respondent Smt. Mamta Rawat on 09.05.2002, following Hindu rites. Two sons, namely, Aryan and Ishan born out of the wedlock. Both the parties to matrimony are in Government Service. Appellant (husband) 2

is Entertainment Tax Inspector in District Mau (U.P.), and respondent (wife) is a Teacher in Government Primary School in District Chamoli (Uttarakhand). It appears that relations between the parties soured and respondent (wife) instituted the suit for divorce, under Section 13 of Hindu Marriage Act, 1955, before Principal Judge, Family Court, Dehradun.

4. During the pendency of the suit, respondent (Mamta Rawat) appears to have moved an application 7C before trial court for transfer of custody of Master Aryan, who was living with his father, to her, which was allowed by the said Court.

5. After admission of this appeal, this Court summoned the child (Master Aryan), who was in the custody of his father. On 23.09.2010, the boy was produced before this Court, and we heard learned Counsel for the parties and also interacted with the boy. The child opted to stay with his father. He further told that he is studying in City Montessori, School, Lucknow and does not want to get disturbed.

6. It has come on the record that one of the sons Ishan is living with his mother, and the another one Aryan is living with his father. Learned Counsel for the respondent pleaded before us that since father is posted in District Mau (U.P.), the child cannot be left with him. However, on close examination of facts, we find that father is giving education to Master Aryan in City Montessori School, Lucknow, which is a prestigious one.

7. It is settled principle of law that in the matter of the custody of child, paramount consideration is welfare of 3

the child. The mother, who is posted in a Primary School in a remote place in District Chamoli, cannot provide the education to Master Aryan, which his father is providing him at Lucknow.

8. Having heard learned Counsel for the parties and after going through the papers on record and considering the interest of the child, in the above circumstances of the case, we are of the view that the trial court has erred, in law, in directing the father to transfer the custody of Master Aryan to the mother. Therefore, we allow the appeal. Impugned order dated 17.07.2010, passed by Principal Judge, Family Court, Dehradun, on an application 7C, is hereby set aside.

(Servesh Kumar Gupta, J.) (Prafulla C. Pant, J.) 21.07.2011


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