DR. SANGEETA VISHWAKARMA @ SANGEETA VISHWAKARMA vs RAHUL RANJAN
- Court
- Jharkhand High Court
2026:JHHC:26921-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 335 of 2026
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Dr. Sangeeta Vishwakarma @ Sangeeta Vishwakarma, aged about 50
years, D/o Late N.R. Vishwakarma, W/o Rahul Ranjan, R/o Flat No.201,
Soumya Apartment, Lake Road, Noora, Opp. D.C. Bungalow, P.O-
Hazaribagh, P.S-Lohsinghna, Dist.:Hazaribagh, 825 301.
.......… Petitioner/Appellant
Versus
Rahul Ranjan, aged about 44 years, S/o Ram Niwas Sharma, R/o 58, Manti
Niwas, Near Janaki Apartment, Matwari, Near Gandhi Maidan, P.O-
Hazaribagh, P.S-Sadar, Dist.-Hazaribagh-825301
.… … Respondent/Respondent
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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON’BLE MR. JUSTICE SANJAY PRASAD
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For the Appellant : Ms. Shreesha Sinha, Advocate
Mr. B.K. Prasad, Advocate
Mr. Adil Ali, Advocate
Mr. Niraj Kumar, Advocate
Mr. Vijay Shankar, Advocate
For the Respondent : Mr. Abhishek Kumar Dubey, Advocate
Ms. Akriti Aprajita, Advocate
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C.A.V on 01.09.2026 Pronounced on 07/09/2026
Per Sujit Narayan Prasad, J.
1 . The instant appeal, preferred under Section 19(1) of the Family
Courts Act, 1984, is directed against the order dated 27.11.2025 passed in
Original Suit No.68 of 2025 by the learned Principal Judge, Family Court,
Hazaribagh (hereinafter referred to as ‘the Family Judge’), whereby the
petition filed by the appellant-mother under Section 12 of the Guardians
and Wards Act, 1890, seeking interim custody of the minor female child,
namely, Miss Ekanshi Sharma, aged about four years, has been rejected,
and consequently, the prayer for grant of interim custody in favour of the
appellant-mother stood declined. Further the appellant/mother in the
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present appeal, has prayed for grant of interim custody of the minor female
child, Miss Ekanshi Sharma, in her favour.
2. The brief facts of the case as pleaded in the plaint needs to be
referred herein as:
(i) The marriage of Appellant and respondent was solemnized on
th
16 of May 2017 according to Hindu customs at Dhanbad in
presence of all the family members from both the sides. It is also
nd
pertinent to mention that it is the 2 marriage of both, the appellant
and respondent, and that the first marriage of the respondent ended
in divorce and his first wife took the custody of her child born from
the respondent. However, the appellant did not bear any child from
her first marriage.
(ii) Both the appellant and respondent are currently working as Asst.
Professor in Vinobha Bhave University, Hazaribagh.
(iii) It has been alleged that from the very beginning of her marriage,
the appellant was being subjected to ill-treatment and harassment
majorly due to demand of dowry. The respondent even forcibly took
away appellant's Bank's credit and ATM cards. The appellant even
endured physical and mental abuse for her looks and caste. Initially,
the appellant remained silent in order to give a chance to her new
marriage. However, tired of being tortured every day, the appellant
eventually filed a Police Complaint on 03/11/2020 against the
respondent, resulting into appellant being thrown away from her
Matrimonial house and, hence, she is forced to live separately in a
rented apartment in Hazaribagh.
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(iv) It is stated that by intervention of friends and family members,
the respondent made promise not to harass the appellant and agreed
to visit her place of stay.
(v) Both the appellant and respondent mutually agreed to extend
their family and resorted to the IVF procedure which led to
Appellant giving birth to a daughter, namely, Ekanshi Sharma on
08/03/2022.
(vi) It has been alleged that the appellant anticipated that the
respondent now would mend things and would take her to her
matrimonial house during this period. However, it was utter shock
that the respondent's family never visited to see the new born girl
child neither extended any physical, emotional or financial support
to the appellant in raising her new born girl child. The respondent
did not even take the appellant and their daughter to his residence
despite several requests.
(vii) It is stated that when the daughter turned 2 years 3 months old,
the respondent after abusing the petitioner, forcibly took away the
daughter with him. However, the respondent couldn't manage to
take care of their daughter, since, the daughter kept asking for her
mother (the appellant) therefore the respondent had to put forth a
condition before the appellant that if she wants to see her daughter,
she would have to come and live with him at his parent's home to
which the appellant agreed at once and moved to her in law's place
on 02/09/2024. However, the respondent and his family made her
nd
stay on the 2 floor with pathetic accommodation and kept the
st
daughter with themselves in the 1 floor.
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(viii) It is stated that during this period, the appellant was constantly
being obstructed in spending time with her daughter and was again
being subject to physical assault, verbal abuse, that too in front of
her daughter.
(ix) It has been alleged that the daughter was being taught by
respondent’s Family that the appellant is a " Bhootni " and that she
would kill her if she stays with her.
(x) It is stated that the daughter is at her primitive years being less
than 5 years old and the conduct of the respondent is against the
welfare of the child causing mental trauma not only to the appellant
but also to the child, who is deprived of the basic care required
specially in the case of a girl child.
(xi) The appellant could not see the child in such manner,
approached Mahila Thana, Sadar, Hazaribagh wherein a notice was
issued for Mahila Thana P.S Case No. 46/2025 dtd. 02/03/2025 for
appearance of both the parties on 17/03/2025 for mediation which
failed miserably.
(xii) The appellant even approached the Child Welfare Committee,
Hazaribagh, where a summon dtd.18/03/2025was issued to the
respondent to produce the child before the members of the
Committee at the earliest but the respondent dodged the appearance
on health grounds.
(xiii) The appellant even approached DSLA, Hazaribagh due to
excessive fights and violence by the respondent and not letting the
appellant meet her child.
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(xiv) The appellant was finally driven out of the matrimonial house
on 17/03/2025 and since then, the respondent individually has the
custody of the daughter, depriving the girl child of mother's care,
affection and bonding.
(xv) It is stated the respondent has absolutely no regard with the
sentiments or the welfare of the child. The respondent very often
used to exhibit aggressive and abusive behavior in front of the
daughter causing the minor child to be in constant fear and tears.
(xvi) It has been stated that the respondent remains out of the house
whole day leaving the child with old and ailing grandparents. The
respondent always refuses the request of video calls or making
proper visits of the appellant.
(xvii) It is stated that the appellant had no other remedy than to
approach the Hon'ble Family Court, Hazaribagh by filing the
Original Suit No. 68 of 2025 u/s 7 & 25 of Guardianship and Wards
Act 1980 r/w section 6 of the Hindu Minority and Guardianship Act,
1956 before Principal Judge, Family Court, Hazaribagh, on
22.03.2025, wherein the respondent has already appeared and filed
his written reply.
(xviii) The appellant also filed several petitions for minor child's
custody vide petitions dated 22.03.2025, 28.04.2025, and
19.05.2025. Petition dated 04.11.2025 has been filed for considering
the objection raised by the petitioner for meeting her daughter at the
residence of the respondent.
(xix) The appellant in her own right and in the interest of the child,
approached the court for interim custody, bringing on record facts
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relating to emotional alienation of the child, hostile environment,
and denial of her access to the minor girl child.
(xx) The respondent filed his reply to the above-mentioned petitions
vide reply dated 15/06/2025 and 11/11/2025 stating that the several
prayers of the appellant are not maintainable in the eyes of law and
the petitioner is not entitled of these reliefs.
(xxi) The respondent in his re-joinder denying all the allegations
levelled against him as pleaded in the plaint. It has been stated that
as soon as the mother/appellant knew that her husband filed
guardianship case she also filed this case on the basis of concocted
story. The respondent has denied that he ever tortured or abused the
petitioner/mother for her looks and caste. It is stated that after long
treatment when it came to knowledge of the respondent that the
petitioner is unable to conceive pregnancy and, hence, both the
parties decided to get the child from IVF and they contacted
INDIRA IVF Centre, Ranchi for the same. Thereafter, the petitioner
conceived through test tube process after preserving semen of the
respondent and one female child born on 08.03.2022. It is stated that
the baby child, namely, Ekanshi Sharma is residing with the
respondent and his parents since January 2023.
(xxii) It is alleged that from very beginning the petitioner/wife never
providing necessary care, love and guidance for development of
minor female child. He has totally denied the allegation of demand
of dowry from the petitioner and on non-fulfillment the same, he
tortured the petitioner on various ways. He has denied that it is not
fact that during pregnancy the petitioner remained alone, rather the
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fact is that the respondent and his parents always cared the petitioner
during her pregnancy. It is stated that due to her high temperament,
the petitioner is residing separately since September, 2024 till
nd
20.03.2025 in the 2 floor of his parental house.
(xxiii) The respondent has stated in his re-joinder that he and his
parents are very careful regarding physical and mental development
of minor child. They never trying to poison the mind of the minor
child, rather the respondent and their parents always love with minor
child. It is stated that though the petitioner and the respondent are
employees of Vinoba Bhave University, Hazaribagh in same faculty
but the economic condition of the respondent is very sound as
compared to the petitioner. It is stated that the respondent and his
parents are very careful regarding physical and mental development
of minor child and now the minor child is studying in nursery grade
of a reputed school at Hazaribagh and she has been promoted with
good grades from pre-nursery.
(xxiv) It is stated that the respondent and his parents are taking all
care of the minor for her upbringing whereas the petitioner is never
taking any care to her and left the minor child on the mercy of
illiterate female servant. Hence, the respondent is fully entitled the
custody of the minor girl child.
(xxv) Thereafter, upon hearing both parties, the learned Principal
Judge, Family Court, Hazaribagh, proceeded to pass the impugned
order dated 27.11.2025, whereby the prayer of the appellant-mother
for interim custody of her minor female child, aged about four years,
has been declined and the learned Family Judge directed an
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arrangement of visitation rights, subject to certain conditions and
stipulations.
(xxvi) It is the case of the appellant that as per the settled position of
law it is amply clear that in relation to custody of "Female Hindu
Minor” who has not completed the age of 5 years, shall ordinarily
be with the mother but even the interim custody of daughter of the
petitioner/appellant has not been granted in her favour.
3. Being aggrieved and dissatisfied by the order dated 27.11.2025
passed by the learned Principal Judge, Family Court, Hazaribagh, the
instant appeal has been filed by the mother/petitioner/appellant.
Submission on behalf of the appellant:
4. Ms. Shreesha Sinha, the learned counsel appearing for the
appellant has taken the following grounds while challenging the impugned
judgment:
(i) It has been contended that the learned Family Judge has
not taken into consideration that the appellant is the mother and,
as such, she is having better claim over the minor who needs
guardianship/custody.
(ii) The learned trial Court has committed a gross error by not
taking into consideration the issue of welfare of the child who can
better be nourished by the mother and ignoring the said fact has
dismissed the petition filed under section 12 of the Guardian and
Wards Act, 1890 for interim custody which is not at all permissible
in law.
(iii) It has been contended that the learned Family Judge had
failed to consider that the minor child is of tender age, and as per
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the provisions of law, custody and care of a child of such age
ordinarily lies with the mother.
(iv) The learned Family Judge has overlooked several facts
pleaded to show that the welfare of the minor girl child is not
being taken care of by the respondent and thus, the learned
Family Court failed to give the interim custody of the minor girl
child aged about 3 years 9 months to the appellant.
(v) It has been contended that the learned Family Judge has
not taken into consideration that the appellant being the mother
of the minor girl child can take her care for her better upbringing
but the learned Family Court has failed to decide it and no finding
is given as to why the interim custody of the minor girl child
should be allowed to remain with the respondent, against the
mandate of the law.
(vi) It has been contended that the learned Family Judge has
failed to consider the allegations put forth by the appellant with
regard to parental alienation, hostile behaviour of the respondent,
and the emotional distress caused to the child due to prolonged
separation from the mother.
(vii) The learned Family Judge has committed grave error in
placing undue reliance on the fact that the minor girl child was
found comfortable in the lap of her father without appreciating
that such comfort is a result of prolonged deprivation of mother
access and cannot override long term welfare of the child which
is the intent of the legislature.
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(viii) The learned Family Judge has erred in ignoring the vital
fact that the minor child Ekanshi had been completely in the care
and custody of the appellant since her birth until the respondent
forcefully took her away when she was 2 years and 3 months old.
The appellant was solely responsible for the care and wellbeing
of the minor child for that duration of time.
(ix) It has been contended that the learned Family Judge has
passed the impugned order without appreciating the fact that the
respondent has time and again shown hostile behavior towards
the child and her daughter leading to filing of multiple cases by
the appellant against the respondent and that the respondent has
also evaded the verbal direction passed by the learned Family
Court.
(x) The learned Family Judge has failed to appreciate the fact
that the visitation right so granted, is granted in an intimidating
and hostile atmosphere and the same defeats the very purpose of
bonding and is contrary to child centric jurisprudence.
(xi) It has been contended that if the impugned order is allowed
to sustain it in all cause will hamper further trial of the
guardianship case as the minor child is constantly being
brainwashed without being allowed any proper interaction with
her mother.
(xii) The learned Family Court has failed to consider the fact
that in matters relating to interim custody and guardianship of the
minor the paramount consideration is of the welfare of the child
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which has not taken into consideration while passing the impugned
order.
(xiii) The learned Family Court has failed to take into
consideration that the appellant being the biological mother and
natural guardian has been completely denied access to her minor
child either physically or through any virtual mode of
communication which has resulted in immense mental agony and
emotional distress to the appellant.
5. The learned counsel based upon the aforesaid grounds has
submitted that the impugned order, therefore, is perverse and not
sustainable in the eyes of law which requires interference by this Court.
Submission on behalf of the respondent:
6. On the contrary, Mr. Abhishek Kumar Dubey, the learned
counsel appearing for the respondent-husband has taken the following
grounds to defend the impugned order:
(i) There is no error in the impugned order as the learned
Family Judge has rightly considered the entire issue for
better upbringings of the minor child and has passed the
order impugned and, as such, the same may not be
interfered with.
(ii) It has been contended that the issue of welfare is well to be
looked into by the respondent, who is biological father of
the minor child and under his guardianship the minor child
is being looked after properly.
(iii) It has been contended that the mother has taken no care
rather she has left the house on her own and the minor is
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living with the respondent and his parents, hence, it is the
respondent and his parents to be more concerned with the
welfare of the minor.
(iv) It has been contended that the minor child is at present
residing with the respondent at Hazaribagh who is studying
in a reputed school and, as such, the learned Family Court
has rightly rejected the prayer for interim custody of the
minor and the petitioner/appellant who has no concern with
the proper upbringing and welfare of the minor as the minor
was to look after by an illiterate maid when she was with
the appellant.
7. Learned counsel has submitted that the learned Family Judge on
consideration of the aforesaid fact has denied the interim custody of the
minor to be given in favour of the appellant herein, hence, the impugned
order/judgment needs no interference.
Analysis:
8. We have heard the learned counsel appearing for the parties,
gone through the impugned judgment/order as well as the Trial Court
Records.
9. It is evident from the factual aspect that the instant appeal filed
against the order dated 27.11.2025 passed in Original Suit No.68 of 2025
by the Family Court, Hazaribagh, whereby the learned Family Court has
not allowed the appellant’s (wife) application filed under section 12 of the
Act 1890 seeking interim custody of her minor daughter, Ekanshi Sharma.
10. Petitioner/appellant is the mother of minor Ekanshi Sharma aged
about 3 years 9 months when the order impugned was passed. The
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appellant’s marriage with respondent was solemnized on 16.05.2017
though it was second marriage of both parties. The petitioner has alleged
physical and mental torture meted out at the hand of the respondent due to
non-fulfilment of demand of dowry and lastly driven her out of the
matrimonial house.
11. It has been alleged by the petitioner that respondent allegedly
denied access to minor child and kept her away from the appellant and
even did not allow her to meet the minor child. The petitioner asserts
child’s welfare is compromised without mother’s care and seeks custody
and guardianship and filed the suit before the learned Family Court,
Hazaribagh.
12. Respondent appeared on notice and filed written statement and
admits marriage and child but denied all the allegations alleged against
him by the appellant.
13. He had claimed that the petitioner voluntarily left matrimonial
home in the year 2025 after abandoning child. Respondent has denied
cruelty and alleged that petitioner’s violent behaviour and abusive
conduct. He had further asserted that petitioner lodged false criminal cases
for extortion.
14. The respondent had stated that he is employed in Vinoba Bhave
University and his family has stable income and provides proper care to
minor child. He had further stated that minor named “Ekanshi Sharma”
admitted in reputed school at Hazaribagh and thriving under respondent’s
custody. The respondent had contended that the custody change would
harm child’s psychological and physical development and respondent as
natural guardian ensures holistic growth of the minor.
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15. In the aforesaid factual background, the following issues have to
be decided by this Court:
(i) Whether the impugned order passed by the learned Family
Court suffers from element of perversity, warranting
interference by this Court
(ii) If the finding on Issue (i) is in the affirmative, what relief is
required to be granted to the Petitioner/Appellant in the
facts and circumstances of the case.”
16. At this juncture this Court needs to refer herein that the original
suit filed under Sections 7 and 25 of the Guardians and Wards Act, 1890
is pending and the same is being contested by the parties herein. This Court
being conscious with the fact that the suit is pending and as such, without
causing prejudice to the parties, is to deal with the issue of interim custody
which has been dealt with by the learned Family Judge by passing an order
dated 27.11.2025 as appended to the present memo of appeal.
17. This Court thinks it proper to refer the underlying provisions as
continued in Guardians and Wards Act, 1890 with its object and intent as
also the Hindu Minority and Guardianship Act, 1956.
18. The Guardians and Wards Act has been enacted being a pre-
independence law, i.e., way back in the year 1890 to consolidate and
amend the law relating to Guardian and Ward. The underlying object is to
consider the issue of the handing over the custody, the guardianship issue
and property related rights. Section 7 confers power upon the Court to
make order as to guardianship while Section 25 confers power upon the
Court to give a declaration regarding title of guardian to custody of ward.
For ready reference, Sections 7 and 25 are being referred as under:-
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“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 has not 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.
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
2Code of Criminal Procedure, 1882 (10 of 1882).
(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.”
19. The reference of Hindu Minority and Guardianship Act, 1956
(Act 1956) also needs to be made herein in view of the provision as
contained under Section 2 thereof wherein it has been provided that the
provisions of this Act (the Act of 1956) shall be in addition to, and not,
save as hereinafter expressly provided, in derogation of, the Guardians and
Wards Act, 1890 (Act 1890). The aforesaid provision, thus, stipulates that
the harmonious construction is to be taken in between the Guardians and
Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956 is not
in conflict with each other in achieving the object and intent for which
these Acts have been enacted.
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20. As per Section 13 of the Hindu Minority and Guardianship Act,
1956, the welfare of the minor shall be the paramount consideration. The
statutory command thus makes it clear that in matters relating to custody
and guardianship, the determinative factor is not the legal right of the
parties but the welfare and best interest of the child, which must override
all other considerations, for ready reference Section 13 of the Act 1956 is
being quoted herein which reads as under:
“13. Welfare of minor to be paramount consideration. —
(1)In the appointment or 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”
21. Further, Section 12 of the Guardian and Wards Act, 1890 confers
power upon the learned Family Judge to pass an order for production of
minor and interim protection of person and property. It has been provided
therein that the Court may direct that the person, if any, having the custody
of the minor shall produce him or cause him to be produced at such place
and time and before such person as it appoints, and may make such order
for the temporary custody and protection of the person or property 13 of
the minor as it thinks proper. Sub-Section (2) thereof provides that if the
minor is a female who ought not to be compelled to appear in public, the
direction under sub section (1) for her production shall require her to be
produced in accordance with the customs and manners of the country. For
ready reference, Section 12 is being referred here as under:-
“12. Power to make interlocutory order for production of minor and
interim protection of person and property.—
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(1) The Court may direct that the person, if any, having the custody of
the minor shall produce him or cause him to be produced at such place
and time and before such person as it appoints, and may make such
order for the temporary custody and protection of the person or
property of the minor as it thinks proper.
(2) If the minor is a female who ought not to be compelled to appear in
public, the direction under sub-section (1) for her production shall
require her to be produced in accordance with the customs and
manners of the country.
(3) Nothing in this section shall authorise— (a) the Court to place a
female minor in the temporary custody of a person claiming to be her
guardian on the ground of his being her husband, unless she is already
in his custody with the consent of her parents, if any, or (b) any person
to whom the temporary custody and protection of the property of a
minor is entrusted to dispossess otherwise than by due course of law
any person in possession of any of the property.”
22. It is thus, evident from bare reading of the provision of Section
12 that the Court has power to make order for production of minor and
interim protection of person and property only in proceeding for
appointing or declaring him guardian. The Court has also been conferred
with the power that the Court may direct the person, if any, having the
custody of the minor shall produce him and may make such order for the
temporary custody and protection of the person or property of the minor
as it thinks proper. The wider amplitude has also been asserted in the said
provision that depending upon the situation the learned Court may pass an
order for the temporary custody and protection of the person or property
of the minor as it thinks proper. Meaning thereby, Section 12 is having
wider power being conferred upon the learned Family Judge to be looked
into at the ad-interim stage, i.e., for production of the minor or depending
upon the situation the temporary custody of the minor.
23. Further, the law is well settled that even though the father is the
natural guardian as stipulated in the statute but the paramount
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consideration in the matter of handing over the custody of the child is
welfare of the child.
24. 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 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, 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."
25. 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
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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.
26. The Hon’ble Apex Court in the aforesaid Judgment interpreted
the word “welfare” used in Section 13 of the Act 1956 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.
27. 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 intervene and make decisions that protect the child's
welfare, even if it means overriding the wishes of the parents or guardians.
28. 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
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rules of evidence or procedure nor by precedents. In selecting proper
guardian of a minor, the paramount consideration should be the welfare
and wellbeing 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 should rest with the court as to what is conducive to the
welfare of the minor.
29. 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
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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.’
30. In the case of Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471,
the Hon’ble Apex Court has observed that it is the 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.”
31. 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 Hon’ble Apex Court in the case of Gautam Kumar Das v.
State (NCT of Delhi), (2024) 10 SCC 588.
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32. 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,
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 for the
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parents. 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 for 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 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 Gowda v. State can of be made to Rohith Thammana
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.”
33. 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 and not the rights of the parties. Further, the welfare of child is
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determined neither by economic affluence nor a deep mental or emotional
concern for the wellbeing of the child. The answer depends on the
balancing of all these factors and determining what is best for child's total
wellbeing.
Re: issue No.(i)
34. In the backdrop of the aforesaid settled position of law and the
factual aspects of the case, this Court now re-adverts to the impugned order
to examine whether the same suffers from the element of perversity,
warranting interference in appellate jurisdiction.
35. From perusal of impugned order, it is manifest that there has been
no proper consideration whatsoever on the issue of interim custody in
favour of the appellant-mother. The minor female child, namely, Miss
Ekanshi Sharma, was aged about three years and nine months on the date
when the order impugned came to be passed, yet the claim of the
appellant-mother for interim custody has not been addressed in the manner
required under law.
36. Further, from a perusal of the impugned order/judgment, it
appears that the learned Family Judge has swayed away on an erroneous
consideration, inasmuch as the issue under Section 12 of the Guardians
and Wards Act, 1890, relating to the handing over of interim custody, has
not been adjudicated. Instead, the learned Court has concluded by granting
visitation rights to the appellant-mother, on the reasoning that the minor
child is in need of the love and affection of both parents.
37. While arriving at the aforesaid conclusion, the learned Family
Judge has failed to advert to the mandate of Section 12 of the Act of 1890,
which confers power upon the Family Court to hand over interim custody
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in favour of either parent, i.e., mother or father, by passing an order based
upon the evidence adduced during trial.
38. The learned Family Judge has not disputed the plea advanced on
behalf of the appellant-mother, premised upon Section 12 of the Act of
1890, which squarely applies to the facts of the present case. The minor
child was aged about three years and nine months on the date of the
impugned order, and in such circumstances, the prevailing preferential
right would ordinarily vest in the mother. However, there has been no
consideration of the aforesaid statutory provision while deciding the
application filed under Section 12 of the Act of 1890.
39. The learned Family Judge has further failed to take into account
the vital consideration that a minor child, particularly a female child of
tender age, stands in greater need of the affection, care, and nurturing of
the mother. This aspect, which bears directly upon the welfare of the child,
has not been adverted to in the impugned order.
40. It is not in dispute that the minor child stands in need of the
affection of both parents, mother as well as father. However, merely on the
basis of such consideration, as has been adverted to by the learned Family
Judge, the adjudication cannot be said to be just and proper. The statutory
mandate is required to be taken into account in exercise of the power
conferred under Section 12 of the Guardians and Wards Act, 1890. In the
present case, as per the pleadings and as intimated by learned counsel
appearing for the respondent, this Court finds that a specific prayer had
been made for interim custody of the minor child, and not merely for
visitation rights
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41. The learned Family Judge ought to have adjudicated the issue on
the basis of the pleadings advanced on behalf of the appellant-mother.
However, the learned Court has wholly deviated from the pleadings and
has instead proceeded to consider the question of visitation rights, thereby
failing to address the specific prayer for interim custody under Section 12
of the Act of 1890.
42. This Court, during the course of hearing, posed a specific query
to learned counsel for the respondent to point out from the impugned
judgment/order whether the issue of interim custody, as exercisable under
the conferment of power under Section 12 of the Act of 1890, had been
adjudicated by the learned Family Judge. In all fairness, learned counsel
for the respondent submitted that there is no finding to that effect in the
impugned order/judgment.
43. On the basis of the discussion made hereinabove and upon due
consideration of the settled position of law as adverted to in the preceding
paragraphs, this Court is of the view that it was not open to the learned
Family Judge, being the trial Court, to deviate from the pleadings while
adjudicating the issue of custody. Rather, it was the bounden duty of the
adjudicator, namely, the learned Family Judge, to decide the issue
primarily on the basis of the pleadings advanced either way. The Family
Court is being not permitted in law to travel beyond or deviate therefrom.
44. It is settled position of law that if there is deviation from the
pleadings or law, any finding so recorded by way of order/judgment would
fall within the fold of perversity. It is well-settled in law that a perverse
order or judgment cannot be sustained in the eyes of law. In this regard,
reference may be made to the pronouncement of the Hon’ble Supreme
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Court in Arulvelu and Another v. State, represented by the Public
Prosecutor, and Another , (2009) 10 SCC 206 , wherein the Hon’ble Apex
Court has categorically held that it is, no doubt, true that if a finding of fact
is arrived at by ignoring or excluding relevant material or by taking into
consideration irrelevant material or if the finding so outrageously defies
logic as so to suffer from the vice of irrationality incurring the blame of
being perverse, then, the finding is rendered infirm in law. Relevant
paragraphs, i.e., paras-24, 25, 26 and 27 of the said judgment reads as
under:
“24. The expression “perverse” has been dealt with in a number of
cases. In Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501] this Court
observed that the expression “perverse” means that the findings of the
subordinate authority are not supported by the evidence brought on
record or they are against the law or suffer from the vice of procedural
irregularity.
25. In Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd. [AIR
1966 Cal 31] the Court observed that “perverse finding” means a
finding which is not only against the weight of evidence but is altogether
against the evidence itself. In Triveni Rubber & Plastics v. CCE [1994
Supp (3) SCC 665 : AIR 1994 SC 1341] the Court observed that this is
not a case where it can be said that the findings of the authorities are
based on no evidence or that they are so perverse that no reasonable
person would have arrived at those findings.
26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58] the
Court observed that any order made in conscious violation of pleading
and law is a perverse order. In Moffett v. Gough [(1878) 1 LR 1r 331]
the Court observed that a “perverse verdict” may probably be defined
as one that is not only against the weight of evidence but is altogether
against the evidence. In Godfrey v. Godfrey [106 NW 814] the Court
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defined “perverse” as turned the wrong way, not right; distorted from
the right; turned away or deviating from what is right, proper, correct,
etc.
27. The expression “perverse” has been defined by various dictionaries
in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English, 6th Edn.
“Perverse.—Showing deliberate determination to behave in a way that
most people think is wrong, unacceptable or unreasonable.”
2. Longman Dictionary of Contemporary English, International Edn.
Perverse.—Deliberately departing from what is normal and
reasonable.
3. The New Oxford Dictionary of English, 1998 Edn. Perverse.—Law
(of a verdict) against the weight of evidence or the direction of the judge
on a point of law.
4. The New Lexicon Webster's Dictionary of the English Language
(Deluxe Encyclopedic Edn.) Perverse.—Purposely deviating from
accepted or expected behavior or opinion; wicked or wayward;
stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, 4th Edn.
“Perverse.—A perverse verdict may probably be defined as one that is
not only against the weight of evidence but is altogether against the
evidence .”
45. Thus, from the aforesaid it is evident that if any order made in
conscious violation of pleading and law then it will come under the
purview of perverse order. Further, “perverse verdict" may probably be
defined as one that is not only against the weight of evidence but is
altogether against the evidence.
46. Thus, “perversity” refers to a finding or decision so unreasonable
or irrational that no reasonable person acting judicially could have reached
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it. It signifies a gross and unreasonable assessment of evidence or law by
a court.
47. Further, perversity is a high threshold for intervention,
distinguishing it from a mere error of fact or law. The "safest approach on
perversity is the classic approach on the reasonable man's inference on the
facts but inadequacy of evidence or a different reading of evidence is not
perversity, reference in this regard be made to the judgment rendered by
the Hon’ble Apex Court in the case of Damodar Lal v. Sohan Devi, (2016)
14 SCC 197.
48. This Court, upon due consideration of the legal connotation of
the term “perversity” and in light of the foregoing discussion, is of the
considered view that the impugned order/judgment fall squarely within
the ambit of perversity.
49. Issue no (i) answered accordingly.
Re: issue no. (ii)
50. Since, upon a comprehensive appraisal of the discussion
hereinabove, this Court has observed that the learned Family Judge, while
declining the prayer for interim custody in favour of the appellant-mother,
notwithstanding the fact that the minor female child was aged about three
years and nine months at the time of passing of the impugned order, failed
to adhere to the settled position of law, the order so passed stands vitiated
by perversity. The question, therefore, that arises for consideration is as to
what relief the petitioner/appellant is entitled to in the facts and
circumstances of the case.
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51. As discussed hereinabove, the governing consideration in
matters of custody of minor child is the welfare of the child, and not the
competing rights of the parties. The welfare of the child is determined
neither solely by economic affluence nor merely by emotional concern,
but by a balancing of all relevant factors to secure the child’s total
well-being.
52. While considering custody, the Court cannot adopt a purely
legalistic approach; human angles are of paramount relevance. The
expression ‘welfare’ in Section 13 of the Hindu Minority and
Guardianship Act, 1956 must be construed in its widest sense. Though
statutory provisions governing parental rights may be taken into account,
they cannot fetter the Court’s exercise of its parens patriae jurisdiction. In
custody matters, the Court’s parens patriae jurisdiction empowers it to act
as guardian of the child, prioritizing the child’s best interests above all else.
53. In Nil Ratan Kundu v. Abhijit Kundu (supra) , the Hon’ble
Supreme Court emphasized that custody cases are not to be decided solely
by interpreting legal provisions but require a humane approach. The Court,
while exercising its parens patriae jurisdiction, must consider the child’s
ordinary comfort, contentment, health, education, intellectual
development, and favorable surroundings, together with moral and ethical
values.
54. In the case Gaytri Bajaj v. Jiten Bhalla (supra), the Hon’ble
Apex Court reiterated that it is the welfare and interest of the child, and
not the rights of the parents, which is the determinative factor. The welfare
of the child must be assessed in the context of the facts of each case, and
decided cases may not serve as binding precedents in custody disputes.
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55. Further, it needs to refer herein that Section 6(a) of the Hindu
Minority and Guardianship Act, 1956 provides that the custody of a minor
who has not completed the age of five years shall ordinarily be with the
mother.
56. In the instant case, the minor female child is aged about four
years and six months. At such tender age, she is in dire need of motherly
affection and love, and is not in a position to form an intelligent preference.
It is an admitted fact that the child was born through IVF and the
petitioner/appellant has endured the pain and sacrifice associated
therewith.
57. In view of the statutory provisions, particularly upon a conjoint
reading of Sections 6(a) and 13 of the Hindu Minority and Guardianship
Act, 1956 with Section 12 of the Guardians and Wards Act, 1890, and
considering the factual matrix of the case, this Court is of the considered
view that, until disposal of the suit, the interim custody of the minor child
shall be handed over to the petitioner/appellant-mother.
58. Accordingly, issue no.(ii) answered.
59. So far, the contention of the learned counsel appearing for the
respondent, is concerned that the main lis being Original Suit No.68 of
2025 filed by the appellant is pending for the purpose of deciding the issue
of custody and, as such, the order passed by the learned Family Court
under section 12 of the Act of 1890, impugned herein, may not be quashed
and set aside.
60. This Court is of the considered view that the argument advanced
by learned counsel for the respondent carries no force. The issue of custody
is indeed one to be adjudicated under the conferment of powers contained
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in Sections 7 and 25 of the Guardians and Wards Act, 1890. However,
when the mandate of Section 12 has also been expressly incorporated in
the statute, its basic purpose is to enable the Court to decide the issue of
interim custody. It is not open to either party to contend that merely
because the lis for permanent custody is pending, no order may be passed
on the issue of interim custody.
61. Once the statutory mandate confers power upon the adjudicator
to decide the issue, it is impermissible for any party to urge that, merely
because the main lis relating to custody is pending, the concerned Court is
absolved from passing an order on interim custody. The conferment of
jurisdiction under Section 12 is distinct and independent, and must be
exercised when invoked.
62. In the present case, the factual position is otherwise, inasmuch as
the learned Family Judge has entertained the petition filed under Section
12 of the Act of 1890, evidence has been laid, and thereafter the impugned
order has been passed. Thus, the issue of interim custody stood squarely
before the Court for adjudication.
63. The instant appeal has been preferred against the aforesaid
order/judgment, it is the statutory duty of this Court, exercising appellate
jurisdiction, to examine the legality and propriety of the findings recorded
by the Family Court. In the event this Court finds infirmities in the
impugned order or judgment, it is incumbent upon the appellate Court to
set the judgment right and to restore the position in accordance with law.
64. In view of the foregoing discussion and upon a conjoint reading
of Sections 6(a) and 13 of the Hindu Minority and Guardianship Act, 1956
together with Section 12 of the Guardians and Wards Act, 1890, and
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considering the factual matrix of the case, this Court finds that the
impugned order of the learned Family Court declining interim custody in
favour of the appellant-mother suffers from perversity and cannot be
sustained.
65. On the basis of discussion made hereinabove, the order
impugned dated 27.11.2025 passed in Original Suit No.68 of 2025 by the
learned Principal Judge, Family Court, Hazaribagh is hereby quashed and
set-aside.
66. In consequence thereof, the interim custody of the minor female
child, aged about four years and six months, shall be handed over to the
petitioner/appellant-mother, until the disposal of the main
guardianship/custody proceedings pending before the Family Court.
67. The respondent-father shall, however, be entitled to visitation
rights. He may meet the child on weekends between 10:00 AM and 5:00
PM at a place mutually agreed upon by the parties, or as directed by the
learned Family Court. It is further directed that such visitation shall be
arranged in a manner ensuring that the studies of the minor child are not
hampered.
68. The Family Court shall remain at liberty to regulate, modify, or
vary the terms of visitation, if circumstances so warrant, keeping in view
the paramount consideration of the welfare of the child.
69. The instant appeal is accordingly allowed to the extent indicated
above.
70. Being the appellate Court, this Court has only gone into the
material as available on record as well as the trial Court records and the
impugned order so as to assess as to whether the finding recorded by the
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learned trial Court suffers from an error being apparent on the order,
nothing more nothing less.
71. Since the suit remains pending, this Court directs the learned
Principal Judge, Family Court, Hazaribagh, to decide the same
expeditiously and without granting any unnecessary adjournments.
72. It is made clear that the learned Principal Judge, Family Court,
Hazaribagh while adjudicating the issue of custody will not be prejudiced
by any observation contained in this order, which is confined to the
question of interim custody alone.
73. The learned Family Court is hereby directed to take all effective
steps, in accordance with law, to ensure compliance of the order/direction
passed by this Court as above during pendency of the suit, so as to maintain
the statutory mandate of Section 12 of the Guardians and Wards Act, 1890,
by handing over the interim custody of minor female child, namely, Miss
Ekanshi Sharma in favour of the appellant/mother namely Dr. Sangeeta
Vishwakarma @ Sangeeta Vishwakarma within a week.
74. With the aforesaid direction and observation, the instant appeal
stand disposed of.
75. Pending I. A(s), if any, stand disposed of.
(Sujit Narayan Prasad, J.)
I Agree.
(Sanjay Prasad, J.)
(Sanjay Prasad, J.)
Sudhir
Dated:07/09/2026
Jharkhand High Court, Ranchi
AFR
Uploaded on 08/09/2026.
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