Home > Judgement > Father lost custody in HC because is only X passed and he has also to lookafter a child born out of his second wife, maternal-grand-father gets custody

Father lost custody in HC because is only X passed and he has also to lookafter a child born out of his second wife, maternal-grand-father gets custody

Haresh vs Bhikhubhai on 18 October, 2011
Author: Jayant Patel, R.M.Chhaya,

Gujarat High Court Case Information System 



FA/2991/2011 4/ 4 ORDER




APPEAL No. 2991 of 2011







========================================================= Appearance :


HITESH S PADHYA for Appellant(s) : 1, MR ASHISH M DAGLI for Defendant(s) : 1,










: 18/10/2011






present appeal is directed against the order passed by the Family Court in Civil Misc. Application No.14/10, whereby the application of the applicant father to get the custody of the minor children has been rejected.


relevant facts are that the appellant had married with Anitaben and out of the wedlock, there were two children, one was minor son Sumit and the another was daughter Manisha. After marriage, on 19.08.2005, wife Anita committed suicide and against the appellant, criminal complaint was also filed under sections 498A, 306 and 114 of the IPC and when the matter was pending before the Sessions Court, there was some settlement and thereafter, the appellant has been acquitted. Some lumpsum amount for maintenance of the children was also deposited out of the settlement. It is thereafter, the present appellant preferred application under the Guardians and Wards Act and Minor Guardians Act for getting the custody of the minor children. The Family Court at the conclusion of the proceeding found that it would not be in the interest and welfare of the children to give the custody to the father and therefore, has declined the custody by rejecting the application.

Under these circumstances, the present appeal before this Court.

We have heard Mr.Padhya for the applicant and Mr.Viral Vyas for Mr.Dagli upon the advance copy.

The approach on the part of the Family Court to take into consideration the welfare of the children as of prime importance cannot be faulted with and the same is rather in consonance with the well settled principles of law. We may also record that at paragraph 19, the learned Judge observed thus –


After considering the rival submissions and considering the facts of the case, both minor children Sumit and Manisha were called before this Court and at that time, maternal-grand-father/opponent and both Ld.Advocates for the parties were present. It appears that both the children are intelligent children. They are more mature than their age. I talked to the children exclusively for about 15 to 20 minutes in the Court. It appears that they are happy with their maternal-grand-father and they have stated that they are lookafter very well. They have categorically stated that they are not willing to live with their father. I tried to pursue the children to go and live with their father, but they refused to do so. After talking with the children and assessing their mind, it would not be in the interest and welfare of the children to handover their custody to their father/applicant.”

Thereafter, the Court has recorded the finding at paras 21 to 23 as under:

“21. In the present case, factual aspect are different, both the children are in custody of maternal-grand-father/opponent since the year 2005. The opponent/maternal-grand-father is retired principal and he is keeping eyes in the education of minor children. As against this, the applicant is only X standard pass and he has also to lookafter a child born out of his second wife.

22. Under these circumstances, I am of the view that welfare of the child is paramount consideration for this Court. If the children are kept with the maternal-grand-father considering the wishes of the minor children and financial and education status of the maternal-grand-father/opponent, children would get bring future. Section-19 of the Guardians and Wards Act empowers Courts to make such order for the temporary custody and protection of the person or property of the minor as it thinks proper. In the matters of custody, as well settled by judicial precedents, welfare of the children is the sole and single yardstick by which the court shall assess the comparative merit of the parties contesting for custody.

23.Under the circumstances, bearing in mind the paramount consideration of the welfare of the children, I am of the view that interest and welfare would be served best if the children continue to be in the custody of maternal-grand-father. In my view, at present, it is not desirable to disturb the custody of the minor children and therefore, exclusively custody of both children i.e. Sumit and Manisha alias Mahek are required to be kept with the maternal-grand-father/opponent and the father/applicant is given visitation right to the children. …..”

We do not find any infirmity in the approach of the Family Court keeping in view the welfare of the children.

Under the circumstances, the appeal is meritless. Hence, dismissed.







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