Priti Sharma vs Praveen Prakash Sharma
- Court
- Allahabad High Court
Reserved on 09.10.2026
Delivered on 26.10.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
FIRST APPEAL No. - 895 of 2024
Priti Sharma
.....Appellant(s)
Versus
Praveen Prakash Sharma
.....Respondent(s)
Counsel for Appellant(s) : Adeeb Anwar, Anuj Laloriya, Gaurav
Tiwari, Pankaj Kumar Govil, Priyanka
Singh, Rahil Anwar, Sanjay
Chaturvedi, Santosh Kumar Tripathi
Counsel for Respondent(s) :
A.F.R.
Court No. - 40
HON'BLE SARAL SRIVASTAVA, J.
HON'BLE SUDHANSHU CHAUHAN, J.
(Delivered by Hon'ble Sudhanshu Chauhan, J.)
1. Heard Shri Pankaj Govil, Advocate appearing for the Appellant; and in
spite of sufficient notice, no one has appeared on behalf of the
Respondent.
2. The present First Appeal is preferred under Section 19 of the Family
Courts Act, read with Section 47 of the Guardians and Wards Act, 1890
(hereinafter referred to as the Act, 1890), against the judgment and order
dated 23.07.2024 passed by the Additional Principal Judge, Family Court
No. 1, Azamgarh in Case No. 44 of 2017 (Preeti Sharma Versus Praveen
Prakash Sharma) under Section 25 of the Act, 1890.
3. The admitted facts, as also evident from the records, giving rise to the
present appeal are that, the marriage between the appellant and the sole
respondent was solemnized on 19.02.2007 at Village Mohalla Nuaon
Tandiya, Post Dafee, Tehsil and Distt. Varanasi in accordance with Hindu
rituals and rites and after the marriage the parties resided at Sector-16-C,
Greater Noida, in a house which according to the respondent is owned by
his mother and out of wedlock of the parties, two sons were born, that is,
Yathartha Sharma (23.05.2011) and Aniket @ Samartha Sharma
(02.06.2013).
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4. However, it has been stated that on 03.04.2016, the respondent left the
appellant at her parental house at Varanasi and took away the elder son,
that is, Master Yathartha Sharma, with him and as such abandoned his
wife and the younger son.
5. It also transpired that within a short period, the respondent filed a
divorce petition being Case No. 246 of 2016 (Praveen Vs. Preeti) and
after getting the notice, it has been submitted that the appellant and her
family members tried their level best to reconcile; and even filed a suit for
restitution of conjugal rights; making every effort to bring the family back
together.
6. However, the respondent was not willing to reconcile the differences,
since he was avoiding the responsibility towards his wife and minor son;
and even after the divorce petition was rejected and the suit for restitution
was allowed on 15.12.2022, but the respondent did not take back his wife
to her matrimonial home and as a matter of fact, it has been submitted,
while placing reliance upon the identity card of Master Yathartha Sharma,
that without there being a divorce between the parties, the respondent has
entered into a marriage with one, Ms. Sumanlata Sharma which is not
only in violation of the decree of restitution of conjugal rights but also, as
a matter of fact, the said marriage is void in view of subsistence of the
marriage between the parties.
7. The aforesaid fact has been pressed by the learned counsel for the
appellant, to demonstrate that the respondent has no respect for law. It has
further been submitted that vide the impugned judgment dated
23.04.2024, visitation rights were given to the appellant, but till date, the
appellant, inspite of her best efforts, has not been permitted to meet her
son.
8. It has further been submitted that the appellant had tried to meet her
son at the school, and during the brief meeting, Master Yathartha Sharma
informed her that he is not being treated well by the woman with whom
the respondent has been living and she makes him run for daily chores
and is not treating him with dignity or by way of providing a conducive
environment; whereas he is staying at Gautam Budh Nagar while his
father is working at Bengaluru. He also told that appellant that whenever
his father-respondent comes during vacations, they regularly visit their
ancestral home at Azamgarh and at that time, Ms. Sumanlata Sharma does
not accompany them.
9. It has also been pointed out from the records that delaying tactics are
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3
being adopted by the respondent, since the filing of Suit No. 44 of 2017
and eventually, when the Court had directed to proceed ex-parte on
19.01.2023, the respondent had moved a recall application and the said
application was allowed with a cost of Rs. 5,000/- on 22.01.2024. Even
thereafter, the respondent did not participate in the proceedings and the
opportunity of the respondent to adduce evidence was once again closed
vide the order dated 22.05.2024. The respodnent apart from the written
statement and his affidavit has not led any evidence and did not enter the
witness box for cross-examination. Hence, the impugned judgment has
been passed merely on the statement made on affidavit by the respondent
without there being evidence on record that the welfare of the minor was
well taken care of while deciding the custody of the minor child.
10. At this juncture we may also refer to the order sheet of the present
appeal, a perusal of which demonstrates that this Court, vide order dated
19.09.2024, had referred the matter to the Mediation Centre and the
Mediation Centre's report indicates that in spite of fixing various dates,
the husband did not appear before the Mediation Centre and in the said
circumstances, the Mediation Centre submitted it’s report on 08.11.2024
to the effect that the mediation has failed.
11. The appellant had even provided the alternative address, which this
Court permitted to be incorporated vide order dated 12.12.2024, but
subsequently the notices could not be delivered with the endorsement that
the addressee lives outside. This Court had also directed the C.J.M.,
Gautam Budh Nagar to effectuate service, however, the report dated
07.08.2026 was sent by the C.J.M., Gautam Budh Nagar indicating that
the respondent had lived at the address from 25.09.2022 to 24.12.2024 but
has now left, without leaving any further address.
12. This Court finds that when the matter was referred to the Mediation
Centre on 19.09.2024, the respondent was residing at the given address,
and accordingly, in spite of notice by the Mediation Centre, the
respondent had chosen not to appear and thereafter had left the address
without providing any forwarding address.
13. Further, on an application being made by the appellant, this Court
vide its order dated 07.09.2026 had also issued notice to be served
through C.J.M., Azamgarh at the permanent address of the respondent;
but however, a report was given by the C.J.M., Azamgarh dated
03.10.2026 wherein it was mentioned that even the father of the
respondent has refused to accept the notice. Under the circumstances, this
Court deemed service of notice on respondent sufficient.
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14. The learned counsel for the appellant categorically submits that the
appellant's father-in-law is in constant touch with the appellant and he has
told her on many previous occasions that his son, regularly visits his
parental house; but however, when notice was sought to be served, the
father of the respondent has incorrectly informed the C.J.M., Azamgarh
that he has no concern with his son.
15. It is surprising to note that the respondent as per his showing has been
residing in the house of his mother at Noida purchased since the year
2016, then it is difficult to understand as to what compelled the
respondent to change his address at Noida and after the service of notice
issued by the Mediation Centre, the respondent again changed his address.
Further the respondent originally belongs to District Azamgarh, and his
father continues to reside there, as would be evident from the notices
issued by this Court. The trial of the present case was conducted at Family
Court, Azamgarh in which the respondent had participated, under the
circumstances it is evident that the respodnent is intentionally avoiding to
appear in the present appeal despite having due knowledge of the same.
16. Before proceeding with the appeal, this Court deems it appropriate to
record the conduct of the respondent. The present proceedings were
initiated by way of filing Suit No. 44 of 2017 and when the Trial Court
could not secure his presence even after six years of filing of the aforesaid
suit, had passed an order to proceed ex-parte on 19.01.2023, the
respondent immediately moved an application for the recall of the said
order, which was also allowed on 22.01.2023; after imposing a cost of
Rs.5,000/-. Even thereafter the respondent did not enter the witness box to
be cross-examined.
17. The order sheet also indicates that apart from his own statement, no
other document/evidence that was produced by the respondent except for
the judgment passed in Matrimonial Case No. 246/2016 filed by
respondent for dissolution of marriage, the same being ultimately
dismissed. Besides no evidence whatsoever was adduced by the
respondent to demonstrate that the paramount interest and welfare of the
child was well taken care of by the respondent. The opportunity of cross-
examination of the respondent and to produce evidence was also closed
by the learned Trial Court solely on account of lapses on the part of the
respondent. Even though this appeal was filed in the year 2024, the
respondent has managed to evade service, though this Court had made
efforts to effect service upon the respondent, through C.J.M., Gautam
Budh Nagar and C.J.M., Azamgarh.
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18. Another aspect of the matter is that in the present proceeding,
visitation rights were given to the appellant by means of the impugned
judgment but till date she has not been permitted even a single visit to her
son and the respondent has left the address as long back as in December,
2024 without disclosing his present address, which otherwise the
respondent was required to provide, so that the condition in respect of the
visitation rights of the respondent in the impugned judgment dated
23.07.2024 could be complied with in letter and spirit.
19. This Court finds that immediately after passing of the order dated
23.07.2024, the conduct of the respondent to leave his address without
providing his present address was nothing but an effort to circumvent the
condition giving visitation rights to the appellant, and depriving the
appellant from meeting her son. This Court also finds that after the
dismissal of the divorce petition and grant of decree for restitution of
conjugal rights, the respondent is also guilty of not complying with the
decree of the Court. Hence, it is beyond doubt that the respondent is
intentionally and wilfully flouting directions of the learned Courts below.
20. Though in the impugned order, the learned Trial Court had noted that
Case No. 246 of 2016 filed under Section 13 of the Hindu Marriage Act,
1955 was dismissed vide order dated 15.12.2022 and the suit filed by the
appellant under Section 9 was decreed, and the respondent has not
adhered to or complied with the said decree, but still the learned Trial
Court had not returned any finding on the issue of the respondent not
having complied with the directions of the Court in proceedings under
Section 9, which would have been a necessary consideration to examine
the welfare of the child vis-a-vis the conduct of his father.
21. It has also been vehemently argued by Shri Pankaj Govil, Advocate
appearing on behalf of the appellant, that till date not even a single penny
has been given by the respondent towards the maintenance of the wife and
the second son, who is living with the appellant, and in the opinion of the
Court, this also demonstrates a circumstance which ought to have been
considered by the learned Trial Court while determining the welfare of
the child.
22. It is no doubt that this Court has time and again emphasized that
proceedings under Section 25 of the Act is not per se about the physical
custody of the minor, but it is about the protection of the right of the
ward's health, maintenance and education, but at the same time, when the
contentious issues are there between both the parents themselves, the
conduct of the parties and their behaviour assumes importance, when the
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ward is a minor, with an impressionable mind.
23. For ready reference, Section 25 is reproduced below:
“ 25. Title of guardian to custody of ward:
(1) If a ward leaves or is removed from the custody of a guardian of his
person, the Court, if it is of opinion that it will be for the welfare of the ward to
return to the custody of his guardian, may make an order for his return, and
for the purpose of enforcing the order, may cause the ward to be arrested and
to be delivered into the custody of the guardian.
(2) For the purpose of arresting the ward, the Court may exercise the power
conferred on a Magistrate of the first class by section 100 of the [Code of
Criminal Procedure, 1882 (10 of 1882)] [Now see Section 97, Criminal
Procedure Code, 1973 (2 of 1974).].
(3) The residence of a ward against the will of his guardian with a person who
is not his guardian does not of itself terminate the guardianship.”
24. The very words in which the aforesaid Section is couched with the
"welfare of the ward", which indicates the intent that the sine qua non for
determination of the custody is the "welfare of the child"; and not rights
of the parents, under the statute for the time being in force.
25. It is not only a holistic view which is required to be taken by the Cou
rts but a mature thinking is necessary in a situation as to what will ensure
the welfare of the child; and simply because either of the parents love his
child and the other is not able to demonstrate the same, on account of a
protracted custody with one of the parents, the said situation must yield to
the consideration primarily of the welfare of the child, as to whether in
whose custody the child may grow in a normal balanced manner. The
dispute between the parents may not affect his immediate environmental
growth, which is conducive for minor children with an impressionable
mind.
26. The Apex Court in Mausami Moitra Ganguli v. Jayant Ganguli
(2008) 7 SCC 673 held that no statute, in case of custody of minor child,
can ignore, eschew or obliterate the vital factor of the welfare of the
minor. The Court considered the Principles as to custody and upbringing
of minors as per the Halsbury's Laws of England (4th Edn., Vol. 13),
which states that the welfare of the minor is the first and paramount
consideration, and must not take into consideration either parents claim or
dwell into the question as to whether the father’s claim or upbringing is
superior to that of the mother , or the claim of the mother is superior to
that of the father. For ready reference paragraph no. 19, 20, 21 and 22 of
the judgment is quoted below:-
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“ 19. The principles of law in relation to the custody of a minor child are well
settled. It is trite that while determining the question as to which parent the
care and control of a child should be committed, the first and the paramount
consideration is the welfare and interest of the child and not the rights of the
parents under a statute. Indubitably, the provisions of law pertaining to the
custody of a child contained in either the Guardians and Wards Act, 1890
(Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13)
also hold out the welfare of the child as a predominant consideration. In fact,
no statute, on the subject, can ignore, eschew or obliterate the vital factor of
the welfare of the minor.
20. The question of welfare of the minor child has again to be considered in
the background of the relevant facts and circumstances. Each case has to be
decided on its own facts and other decided cases can hardly serve as binding
precedents insofar as the factual aspects of the case are concerned. It is, no
doubt, true that father is presumed by the statutes to be better suited to look
after the welfare of the child, being normally the working member and head of
the family, yet in each case the court has to see primarily to the welfare of the
child in determining the question of his or her custody. Better financial
resources of either of the parents or their love for the child may be one of the
relevant considerations but cannot be the sole determining factor for the
custody of the child. It is here that a heavy duty is cast on the court to exercise
its judicial discretion judiciously in the background of all the relevant facts
and circumstances, bearing in mind the welfare of the child as the paramount
consideration.
21 . In Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1 SCC 840] a three-
Judge Bench of this Court in a rather curt language had observed that: (SCC
p. 855, para 15)
“ 15. … The children are not mere chattels: nor are they mere playthings
for their parents. Absolute right of parents over the destinies and the lives of
their children has, in the modern changed social conditions, yielded to the
considerations of their welfare as human beings so that they may grow up in a
normal balanced manner to be useful members of the society and the guardian
court in case of a dispute between the mother and the father, is expected to
strike a just and proper balance between the requirements of welfare of the
minor children and the rights of their respective parents over them.”
22 . In Halsbury's Laws of England (4th Edn., Vol. 13), the law pertaining to
the custody and maintenance of children has been succinctly stated in the
following terms:
“ 809. Principles as to custody and upbringing of minors.—Where in any
proceedings before any court, the custody or upbringing of a minor is in
question, the court, in deciding that question, must regard the welfare of the
minor as the first and paramount consideration, and must not take into
consideration whether from any other point of view the claim of the father in
respect of such custody or upbringing is superior to that of the mother, or the
claim of the mother is superior to that of the father. In relation to the custody
or upbringing of a minor, a mother has the same rights and authority as the
law allows to a father, and the rights and authority of mother and father are
equal and are exercisable by either without the other.”
27. The Court has to give due weightage to the child ordinarily continuing
health, education, intellectual, favorable surroundings as well as physical
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comforts, the moral and physical values, so that he can grow in an
environment which is conducive to a normal balanced human growth.
28. The Apex Court in
Sheoli Hati v. Somnath Das (2019) 7 SCC 490
while considering a plethora of judgments reiterated the settled
proposition that “welfare of the child” is of paramount consideration
while taking a decision regarding custody or other issues pertaining to a
child. Every child has a right to proper health and education; and it is the
primary duty of the parents to ensure that child gets proper education. The
courts in exercise of parens patriae jurisdiction have to decide such
delicate question. For ready reference paragraph no. 17 and 18 of the
judgment is quoted below:-
“ 17. It is well settled that while taking a decision regarding custody or other
issues pertaining to a child, welfare of the child is of paramount consideration.
This Court in Gaurav Nagpal v. Sumedha Nagpal [Gaurav Nagpal v. Sumedha
Nagpal, (2009) 1 SCC 42: (2009) 1 SCC (Civ) 1], had the occasion to consider
the parameters while determining the issues of child custody and visitation
rights, entire law on the subject was reviewed. This Court referred to English
Law, American Law, the statutory provisions of the Guardians and Wards Act,
1890 and provisions of the Hindu Minority and Guardianship Act, 1956, this
Court laid down following in paras 43, 44, 45, 46 and 51: (SCC pp. 55-57)
43. The principles in relation to the custody of a minor child are well
“
settled. In determining the question as to who should be given custody of a
minor child, the paramount consideration is the “welfare of the child” and not
rights of the parents under a statute for the time being in force.
44. The aforesaid statutory provisions came up for consideration before
courts in India in several cases. Let us deal with few decisions wherein the
courts have applied the principles relating to grant of custody of minor
children by taking into account their interest and well-being as paramount
consideration.
45. In Saraswatibai Shripad Vad v. Shripad Vasanji Vad [Saraswatibai
Shripad Vad v. Shripad Vasanji Vad, 1940 SCC OnLine Bom 77 : ILR 1941
Bom 455 : AIR 1941 Bom 103] the High Court of Bombay stated: (SCC
OnLine Bom)
‘… It is not the welfare of the father, nor the welfare of the mother, that is
the paramount consideration for the court. It is the welfare of the minor and of
the minor alone which is the paramount consideration …’
46. In Rosy Jacob v. Jacob A. Chakramakkal [Rosy Jacob v. Jacob A.
Chakramakkal, (1973) 1 SCC 840] , this Court held that object and purpose of
the 1890 Act is not merely physical custody of the minor but due protection of
the rights of ward's health, maintenance and education. The power and duty of
the court under the Act is the welfare of minor. In considering the question of
welfare of minor, due regard has of course to be given to the right of the father
as natural guardian but if the custody of the father cannot promote the welfare
of the children, he may be refused such guardianship.
*
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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 or 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.”
(emphasis in original)
18. Every child has right to proper health and education and it is the primary
duty of the parents to ensure that child gets proper education. The courts in
exercise of parens patriae jurisdiction have to decide such delicate question. It
has to consider the welfare of the child as of paramount importance taking into
consideration other aspects of the matter including the rights of parents also.
In reference to custody of a minor, this Court had elaborated certain principles
in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka [Thrity Hoshie
Dolikuka v. Hoshiam Shavaksha Dolikuka, (1982) 2 SCC 544 : 1982 SCC
(Cri) 505] , wherein this Court again reiterated that the welfare of the child is
of paramount importance. In para 17, following was laid down: (SCC p. 565)
“ 17. The principles of law in relation to the custody of a minor
appear to be well-established. It is well-settled that any matter
concerning a minor, has to be considered and decided only from the
point of view of the welfare and interest of the minor. In dealing with a
matter concerning a minor, the court has a special responsibility and it
is the duty of the court to consider the welfare of the minor and to
protect the minor's interest. In considering the question of custody of a
minor, the court has to be guided by the only consideration of the
welfare of the minor.”
29. It is also not res integra that the Court can order the return of the child
if it feels that the welfare lies with the guardian; but however, only if the
Court is of the opinion that such a return is in the welfare of the ward.
This Court in the case of
Mohammad Khalid versus Zeenat Praveen,
has held that though the father as a natural guardian
AIR 1988 All 252
has a prima facie right to minor's custody, this may be negated if welfare
lies in keeping him in his mother's or grandparents' custody because the
children cannot be treated as chattel or property. In
Rosy Jacob v. Jacob
the Apex Court held that the
A. Chakramakkal, (1973) 1 SCC 840
power and duty of the court under the Act, 1890 is towards the welfare of
the minor. In considering the question of welfare of minor, due regard has
of course to be given to the right of the father as natural guardian but if
the custody of the father cannot promote the welfare of the children, he
may be refused such guardianship. It also held that 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.
30. In the present case, we find that the respondent has not only, not
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adhered to the various orders or judgments of competent Courts of law,
but there is also evidence on record that he has remarried without
obtaining a decree of divorce in his favour, which can be construed to be
not in the best welfare of the minor.
31. Not only in the present appeal, but while the matter was going on
before the Trial Court, there is enough evidence by way of the order-sheet
of the Trial Court as well as that of the present appeal, that the respondent
has taken all recourse to delay the present proceeding and not submit
himself to the jurisdiction of the Court, so that no adjudication could
reach.
32. In view of above, if we advert to the impugned judgment, the learned
Trial Court in this regard although took cognizance of the fact that despite
the petition under Section 9 of the Hindu Marriage Act, 1955 for
restitution of conjugal rights having been decreed and the respondent not
having complied with the directions, the learned Court did not deem it fit
to take the aforesaid fact into consideration while deciding the question of
custody. The learned Trial Court also overlooked the fact that the
respondent was intentionally delaying the proceedings of the case.
33. Further as already held above the respondent who has kept evading
the service of notice in the present appeal has also violated the impugned
judgment dated 23.07.2024 by means of which full visitation right were
given to the appellant, and it is amply clear from the record that the
appellant has not been permitted to meet her son for the past about 10
years, as the appellant during her cross-examination in the year 2019 had
admitted that she had not been permitted to meet her son after April, 2016
despite having made efforts to meet him and a complaint had also been
lodged before the competent police authorities in that regard. Thus, it is
beyond doubt that the respondent while violating the directions giving full
visitation rights to the appellant had openly flouted judicial orders.
34. Further the finding of the learned trial court in this regard that the
appellant in her cross-examination had accepted that she had not met her
son for the past three and half year, and as such making it the ground for
grant of custody of the minor to the respondent is not acceptable, as we
are of the view that the finding is erroneous and perverse, in view of the
fact that the appellant did not meet her son, not out of her own sweet will
but was intentionally had wilfully prevented from doing so at the behest
of the respondent.
35. The fact that the respondent openly flouted directions of the Court and
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evaded due process of law even at the stage of trial was completely
overlooked by the learned trial court while passing the impugned
judgment. In this regard, the Apex Court in the case of Gaurav Nagpal
Vs. Sumedha Nagpal, 2009 (1) SCC 42 had held as under :-
“ 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 or 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.
52. The trump card in appellants' argument is that the child is living since long
with the father. The argument is attractive. But the same overlooks a very
significant factor. By flouting various orders, leading even to initiation of
contempt proceedings, the appellant has managed to keep custody of the child.
He can not be a beneficiary of his own wrongs. The High Court has referred to
these aspects in detail in the impugned judgments.
53. The conclusions arrived at and reasons indicated by the High Court to
grant custody to the mother do not in our view suffer from any infirmity. It is
true that taking the child out of the father's custody may cause some problems,
but that is bound to be neutralized.
54. Learned counsel for the appellant submitted that the child's education is of
paramount importance and the father is spending good amount of money for
providing him excellent education, and the mother does not have the financial
affluence as the appellant claims to have. But that can be taken care of if
father is asked to pay the educational expenses of the child in addition to the
maintenance being paid to the respondent. But at the same time it cannot be
overlooked that the father needs to have visitation rights of the child. “
36. The main ground on the basis of which the learned Trial Court had
refused the custody of the minor to the appellant-mother was that the
mother was having no independent income of her own and was dependent
upon her father, who had already retired from service. The learned Trial
Court while acknowledging the fact that the suit for maintenance filed by
the appellant was pending before the Family Court, Azamgarh also
overlooked the fact that it is bounden duty of the husband to maintain his
wife and the children.
37. The Apex Court in the case of Gaurav Nagpal (supra) has held that the
fact that father is spending good amount of money for providing him
excellent education, and the mother does not have financial affluence as
the appellant claims to have, but that can be taken care if father is asked to
pay the educational expenses of the child in addition to the maintenance
being paid to the respondent. Similarly, the Apex Court in the case of
Mausami Moitra Ganguli (supra) had held that it is no doubt, true that
father is presumed by the statutes to be better suited to look after the
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welfare of the child, being normally the working member and head of the
family, yet in each case, the Court has to see primarily to the welfare of
the child in determining the question of his or her custody. Better
financial resources either of the parents or their love for the child may be
one of the relevant considerations but cannot be the sole determining
factor for the custody of the child. Hence, it can be very well be
concluded that the learned Trial Court could not have refused the custody
of the minor to the appellant solely on account of her financial status.
38. In this regard the Apex Court in the case of Shamima Farooqui vs.
Shahid Khan, (2015) 5 SCC 705 in respect of the responsibility and duty
of a husband and a father towards the welfare of his wife and children had
held as under :-
“ 16. Grant of maintenance to wife has been perceived as a measure of
social justice by this Court. In Chaturbhuj v. Sita Bai, it has been ruled
that:-
"Section 125 CrPC is a measure of social justice and is
specially enacted to protect women and children and as noted
by this Court in Captain Ramesh Chander Kaushal v. Veena
Kaushal falls within constitutional sweep of Article 15(3)
reinforced by Article 39 of the Constitution of India. It is meant
to achieve a social purpose. The object is to prevent vagrancy
and destitution. It provides a speedy remedy for the supply of
food, clothing and shelter to the deserted wife. It gives effect to
fundamental rights and natural duties of a man to maintain his
wife, children and parents when they are unable to maintain
themselves. The aforesaid position was highlighted in
Savitaben Somabhai Bhatiya v. State of Gujarat."
17. This being the position in law, it is the obligation of the husband to
maintain his wife. He cannot be permitted to plead that he is unable to
maintain the wife due to financial constraints as long as he is capable of
earning.
18. In this context, we may profitably quote a passage from the judgment
rendered by the High Court of Delhi in Chander Prakash Bodhraj v. Shila
Rani Chander Prakash wherein it has been opined thus:-
"An able-bodied young man has to be presumed to be capable of
earning sufficient money so as to be able reasonably to maintain
his wife and child and he cannot be heard to say that he is not in a
position to earn enough to be able to maintain them according to
the family standard. It is for such able-bodies person to show to the
Court cogent grounds for holding that he is unable to reasons
beyond his control, to earn enough to discharge his legal
obligation of maintaining his wife and child. When the husband
does not disclose to the Court the exact amount of his income, the
presumption will be easily permissible against him."
19. From the aforesaid enunciation of law it is limpid that the obligation
of the husband is on a higher pedestal when the question of maintenance
of wife and children arises. When the woman leaves the matrimonial
home, the situation is quite different. She is deprived of many a comfort.
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Sometimes the faith in life reduces. Sometimes, she feels she has lost the
tenderest friend. There may be a feeling that her fearless courage has
brought her the misfortune. At this stage, the only comfort that the law can
impose is that the husband is bound to give monetary comfort. That is the
only soothing legal balm, for she cannot be allowed to resign to destiny.
Therefore, the lawful imposition for grant of maintenance allowance.”
39. The perusal of the record further reveals that there is noting on record
other than the affidavit of the respondent to demonstrate that the welfare
of the minor son was well taken care of, however, the learned Trial Court
had blindly relied upon the affidavit. Further there was no evidence on
record in respect of the income of the respondent nor was there any
evidence regarding the quality of education of the minor son and his
performance in school. However, the learned Trial Court completely
overlooked the aforesaid vital aspects of the matter while dismissing the
suit. Thus, the learned Trial Court had arrived at findings regarding better
welfare of minor in the hands of the father-respondent with no evidence to
support the same.
40. Moreso, as is evident from the record and as held in paragraphs above
no opportunity was afforded to the appellant to cross-examine the
respondent. Under these circumstances, the approach of the learned Trial
Court in accepting the statements made on the affidavit by the respondent
as gospel truth without affording any opportunity for cross-examination to
the respondent, is not only erroneous but suffers from patent illegality.
41. It is true that the strict rules of evidence are not applicable to Family
Courts by virtue of Section 14 of the Family Courts Act, 1984 as the
freedom of partial departure from the Evidence Act, helps the Family
Court to reconsider valuable information and materials necessary for
effective adjudication of disputes. However, the same would not absolve
the Family Court from observing ordinary principles of proof and rule of
natural justice, even in situations where the Family Court is not bound
and governed by the Evidence Act. Section 14 of the Act, 1984 is only
aimed at mitigating, under certain circumstances, the rigours of
sophisticated rules of relevancy and admissibility of the Evidence Act
rather than annihilating the very fundamental rules of proof and natural
justice inherent in an ideal legal system. We are therefore, of the view that
the Family Courts, may have been absolved from observing the stringent
rules of relevancy and admissibility of evidence envisaged by the
Evidence Act, are nonetheless bound to adhere to the fundamental rules of
evidence based on logic, fairness and expedency and also principles of
natural justice.
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42. However, in the present case as would be evident from above the
findings arrived at by the learned Trial Court are based on no evidence
and as such are perverse and are liable to be set aside, moreso in respect
of the welfare of the minor. It is also settled that denial of the right to
cross-examination is a violation of rule of natural justice. Further the
examination in chief of a party cannot be relied upon in the absence of the
party not presenting himself/herslf for cross-examination before the
Court, as has happened in the present case. The right to cross-examination
being one of the principles of natural justice, the learned Trial Court could
not have relied upon the affidavit of the respondent in the absence of any
opportunity being afforded to the appellant to cross-examine the
respondent.
43. The Apex Court in the case of
Ayaaubkhan Noorkhan Pathan vs.
State of Maharashtra, (2013) 4 SCC 465 while considering the right to
cross-examination had held as under :-
“ Cross-examination is one part of the principles of natural justice:
24. A Constitution Bench of this Court in State of M.P. v. Chintaman
Sadashiva Vaishampayan held that the rules of natural justice, require that a
party must be given the opportunity to adduce all relevant evidence upon
which he relies, and further that, the evidence of the opposite party should be
taken in his presence, and that he should be given the opportunity of cross-
examining the witnesses examined by that party. Not providing the said
opportunity to cross-examine witnesses, would violate the principles of natural
justice. (See also: Union of India v.T.R. Varma, Meenglas Tea Estate v.
Workmen, Kesoram Cotton Mills Ltd. v. Gangadhar & Ors., New India
Assurance Company Ltd . v . Nusli Neville Wadia and Anr., Rachpal Singh &
Ors. v. Gurmit Kaur & Ors., Biecco Lawrie & Anr. v. State of West Bengal &
Anr., and State of Uttar Pradesh v. Saroj Kumar Sinha.)
,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
30. The aforesaid discussion makes it evident that, not only should the
opportunity of cross-examination be made available, but it should be one of
effective cross-examination, so as to meet the requirement of the principles of
natural justice. In the absence of such an opportunity, it cannot be held that
the matter has been decided in accordance with law, as cross-examination is
an integral part and parcel of the principles of natural justice. “
44. Besides this Court cannot be oblivious of the fact that the respondent
has entered into a second marriage, while the marriage between the
parties continues to subsist, hence in future there is no certainty that the
child will get better love and affection as well as the conducive
environment from his step-mother in comparison to what would be
offered by his real mother-appellant. Hence, it is on this account as well
that this Court is of the view that the welfare of the minor would be better
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15
taken care by the appellant vis-a-vis the respondent.
45 . The Supreme Court in the matter of Athar Hussain v. Syed Siraj
Ahmed and Others has considered second marriage of father qua interim
custody and held that second marriage of father is an important factor for
consideration while granting custody of the child and denied the custody
to the father where he has already entered into second marriage. It has
been observed in paragraph 44 as under :-
"44. The second marriage of the appellant, though a factor that cannot
disentitle him to the custody of the children, yet is an important factor to
be taken into account. It may not be appropriate on our part to place the
children in a predicament where they have to adjust with their
stepmother, with whom admittedly they had not spent much time as the
marriage took place only in March, 2007, when the ultimate outcome of
the guardianship proceedings is still uncertain."
46. Thus in view of the above, the question that remains is as to whether
the father-respondent, who from the record has openly been flouting the
orders passed by the learned Courts below, evading the due process of
law and is in a relationship and living with another women, despite being
refused divorce and no proof of income of the respondent and well being
of the minor being on record, would be a suitable parent to take care of
the welfare of the minor, or the mother-appellant, where the minor would
grow up with his mother, younger brother and maternal grandparents,
may be with lesser physical comforts but definitely better moral and
ethical values. The welfare of the minor being of paramount importance
while deciding the question of custody.
47. Under the circumstances, we are of the view that the welfare of the
minor would be better taken care of, if his custody is granted to his
mother-appellant.
48. Accordingly, the present appeal stands and the judgment and
allowed
order dated 23.07.2024 passed in Case No. 44 of 2017 (Preeti Sharma Vs.
Praveen Prakash Sharma) passed by Additional Principal Judge, Family
Court No. 1, Azamgarh is set aside. Further the respondent is directed to
handover the custody of the minor child, Master Yathartha Sharma, to the
appellant within a period of one month from this judgment.
49. However considering the fact that the respondent is father of the
minor and his presence is essential for the proper growth and
development of the minor, hence, the respondent would have the right to
visit and meet the minor, Master Yathartha Sharma every Saturday
between 3:00 P.M. to 5:00 P.M. in the premises of District Legal Services
Authority (DLSA), Varanasi. Further, it shall be open for the parties to
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approach the learned Trial Court in case they want any change in the
visitation rights so given to the respondent.
(Sudhanshu Chauhan,J.) (Saral Srivastava,J.)
October 26, 2026
Gaurav
Digitally signed by :-
GAURAV PATEL
High Court of Judicature at Allahabad