SHAGUFTA YASMIN vs MD. AMIR KHAN

2026:JHHC:26955-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No.290 of 2026
----- -
Shagufta Yasmin aged about 25 Years W/O Md. Amir Khan,
D/O Md. Zubair Khan, R/O - Millat Colony, Bahu Bazar,
Near Bishap School, P.O. & P.S. - Lower Bazar, District -
Ranchi (Jharkhand) … … Appellant
Versus
Md. Amir Khan aged about 31 Years S/O Irfan Khan, R/O -
Warsi Chowk, Manitola, Doranda, P.O. & P.S. - Doranda,
District - Ranchi (Jharkhand). … … Respondent

P R E S E N T
HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON’BLE MR. JUSTICE SANJAY PRASAD
…..
For the Appellant : Mr. Kripa Shankar Nanda, Advocate
For the Respondent : Mr. A.K.Sahani, Advocate
: Ms. Trishna Sagar, Advocate
…..
C.A.V. on 07.08.2026 Pronounced on 07/09/2026
Per Sujit Narayan Prasad, J.

Prayer:
1. The instant appeal, under Section 19(1) of the Family
Court Act, 1984, is directed against the judgment dated
19.05.2026 passed by learned Additional Principal Judge,
Additional Family Court-II, Ranchi in Original Suit
(Guardianship) No. 312 of 2025, whereby and whereunder
the petition filed by the respondent under Sections 7 and 25
of the Guardians and Wards Act, 1890 for custody of minor
children has been allowed ex parte and the appellant has
been directed to hand over the custody of the minor girl aged
about 4 years to the father, respondent herein within a week.

1

2026:JHHC:26955-DB
Factual Matrix
2. The case of the petitioner (respondent herein) as
narrated in the petition before the learned family court in
brief is that the petitioner Md. Amir Khan (respondent
herein) is father and the natural guardian of her daughter
namely Insha Amir.
It has been stated that marriage of the petitioner was
solemnized with respondent (appellant herein) on
06.09.2020 according to Muslim Rites and Customs at
Ranchi. Out of the wedlock one female child has been born
on 11.01.2022 namely Insha Amir. After the birth of female
child, the wife (appellant herein) of the petitioner, left the
matrimonial house on 02.03.2022 with her infant daughter.
It has further been stated petitioner’s daughter is
currently residing at her maternal Grandfather's house
without any proper care.
It has further been alleged that his daughter's eye was
injured as a result of being beaten by the opposing party,
and that the maternal uncle, Mahmood Alam Khan, who
had previously murdered his wife.
It has been stated that the petitioner several times
approached his wife and requested her to return to her
matrimonial house with his daughter but opposite party and
her maternal uncle refused to send her to sasural.
2

2026:JHHC:26955-DB
It has further been stated that the petitioner after being
fully harassed submitted a written report to the S.S.P.
Ranchi and stated apprehension of implication in false and
fabricated case punishable under Section 498 A of the I.P.C.
since the petitioner heard the conversation going on in
between the respondent and her family members mainly of
snatching the house of mother of the petitioner on the threat
of implicating his family in a dowry case.
It has been stated that petitioner lodged an informatory
petition and mentioned all the acts and behaviours of the
opposite party and her family members.
It has been alleged that opposite party/wife ran away
with a boy just one week of the marriage of the petitioner.
After leaving the house of the petitioner the respondent was
seen roaming with different boys all the times.
It has been stated that maternal uncle of the opposite
party is criminal type where the wife and daughter of the
petitioner is residing. The maternal uncle of the opposite
party runs a mobile repair shop and has income of
Rs.10,000/- to 12,000/- per month. A married sister of the
maternal uncle of the opposite party is also residing with
them.
In the given factual matrix, the petitioner (who is the
respondent herein) instituted Original Suit (Guardianship)
No. 312 of 2025, wherein a categorical prayer was advanced
3

2026:JHHC:26955-DB
that custody of the minor child, namely, Insha Amir, be
entrusted to him, being the natural father, on the premise
that such custody would best serve the welfare, care, and
future upbringing of the child.
3. Notice was issued to the respondent (appellant
herein) but she failed to appear and, therefore, the matter
was heard ex-parte.

4. The learned family court, on the basis of the claim of
the petitioner, framed the following issues: -
(i) Whether the petitioner has valid cause of action to file
this suit and is maintainable in its present form?

(ii) Whether the petitioner is entitled to be declared
guardian of the minor child?
(iii) Whether the petitioner is entitled to get the custody of
minor children as prayed for?
(iv) Whether the petitioner is entitled to get any other relief,
in fact and circumstances of the case?
5. In order to prove its case, the petitioner/respondent
herein has examined four witnesses including himself,
namely -
P.W. 1 Md. Amir Khan, the petitioner himself.
P.W. 2 Md. Irfan Khan.
P.W. 3 Kashish Khan.
P.W. 4 Sarwary Kausar
4

2026:JHHC:26955-DB
6. The learned family court, based upon consideration of
principle of handing over the children, and the evidence led
on behalf of petitioner, has allowed the suit directing the
respondent (appellant herein) to handover the custody of
minor girl to the petitioner-father (respondent herein) within
a week, against which the present appeal has been preferred
by the appellant - mother.
Submission of learned counsel for the appellant:
7. The learned counsel for the appellant has submitted
that the judgement passed by the learned Additional Principal
Judge, Additional Family Court-II, Ranchi, is perverse
without application of judicial mind and against the record of
the case and, therefore, fit to be set aside.
8. The learned counsel for the appellant has further
submitted that the judgement passed by the learned
Additional Principal Judge, Additional Family Court-II,
Ranchi, is based on conjecture and surmises and without any
legal evidence and, therefore, not sustainable in the eye of
law and fit to be set aside.
9. Learned counsel has submitted that the learned
Additional Principal Judge, Additional Family Court-II,
Ranchi, has failed to appreciate that no proper opportunity of
being heard has been given to her before declaring ex-parte.
10. It has been submitted that there is no evidence on
record to show that any notice has been served to the present
5

2026:JHHC:26955-DB
appellant in connection with Original Suit (Guardianship)
No.312/2025.
11. It has further been submitted that learned Additional
Principal Judge, Additional Family Court-II, Ranchi, has
further failed to appreciate that the appellant is regularly
appearing before Family Court for realisation of maintenance
amount as ordered in Original Maintenance Case
No.391/2023, which is evident from the order-sheet of
Original Maintenance Case No.391/2023.
12. Learned counsel for appellant has further contended
that the learned Additional Principal Judge, Additional Family
Court-II, Ranchi, has failed to appreciate that the appellant
was regularly appearing to collect some of the amount paid
by the respondent/hsband in his court but the petitioner
(respondent herein) has never informed with respect to the
pendency of present case though there are several
conciliations between the parties.
13. It has further been contended that learned Additional
Principal Judge, Additional Family Court-II, Ranchi, has
further failed to appreciate age of the victim girl which is
below 6 Years and, therefore, as settled position of law no
custody of child below 6 Years can be given to father.
14. It has been submitted that the learned Family Court
has further failed to consider the fact that no proper
opportunity has been given to appellant nor any service
6

2026:JHHC:26955-DB
report has been received by the court with respect to the
service of the notice.
15. It has also not been taken into consideration that the
appellant has ever received any notice and even there is no
proper order has been passed to declared him ex-party and
there is no evidence in which newspaper the notice was
published.
16. 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 of learned counsel for the respondent:
17. Per contra the learned counsel appearing for the
respondent-husband while defending the impugned judgment
has submitted that there is no perversity in the impugned
judgment 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.
18. It has further been contended that it is evident from
perusal of order-sheet, that despite service of notice through
post and paper publication, having full knowledge about the
pendency of the suit, the appellant did not choose to appear
and contest the petition, therefore the contention of the
appellant that she had not received any notice and that the
7

2026:JHHC:26955-DB
case was fixed ex-parte hurriedly, is apparently false and
baseless, as would be evident from the entire order sheet.
19. Further it has been contended that in spite of full
knowledge about the pendency of Original Suit (Guardian)
No. 312 of 2025, no step was taken by appellant and
therefore, the case was taken up for ex-parte hearing as such
the plea of appellant about non-adherence of the principle of
natural justice is not fit to be accepted.
20. 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.
21. Learned counsel has submitted that the learned Family
Judge on consideration of the aforesaid fact has allowed the
custody of the minor to be given in favour of the
petitioner/father (respondent herein), hence, the impugned
judgment needs no interference.
Analysis

22. We have heard the learned counsel appearing for the
parties, gone through the impugned judgment/order as well as
the Trial Court Records.
23. It is evident from factual aspect that the petitioner Md.
Amir Khan (respondent herein) asserted before the learned
Family Court that he is the father and natural guardian of his
minor daughter, Insha Amir, born on 11.01.2022 out of his
marriage solemnized with the appellant on 06.09.2020 at
8

2026:JHHC:26955-DB
Ranchi according to Muslim rites. He alleged that soon after
the child’s birth, on 02.03.2022, the appellant left the
matrimonial home with the infant and has since been
residing at her maternal grandfather’s house. The petitioner
claimed that the child is not receiving proper care there, and
further alleged that the child suffered an eye injury due to
being beaten by the opposite party. He also accused the
maternal uncle, Mahmood Alam Khan, of having a criminal
background, including the alleged murder of his own wife,
and expressed concern about the environment in which his
daughter is being raised.

24. The petitioner further stated that the maternal uncle,
who runs a mobile repair shop with modest income, is of
criminal disposition, and that the environment at the
maternal grandfather’s house is unsuitable for the welfare of
his daughter. On this basis, he instituted Original Suit
(Guardianship) No. 312 of 2025, praying for custody of Insha
Amir, contending that as her natural father, entrusting her to
him would best serve her welfare, care, and future
upbringing.
25. Pursuant to the institution of Original Suit
(Guardianship) No. 312 of 2025, since the appellant had not
entered appearance before the learned Family Court,
consequently, the matter proceeded ex parte and was heard
in the absence of the respondent.
9

2026:JHHC:26955-DB
26. The learned Family Court, upon consideration of the
evidence adduced by the petitioner, proceeded to allow the
guardianship suit. By the impugned order, the Court directed
the respondent (appellant herein) to hand over custody of the
minor female child Insha Amir, to the petitioner-father
(respondent herein) within a period of one week.
27. Aggrieved thereby, the present appeal has been
instituted by the appellant-mother assailing the said
judgment and direction.
28. The appellant’s counsel has assailed the impugned
judgment of the learned Additional Principal Judge, Family
Court-II, Ranchi, as being perverse, and was rendered
ex parte without affording proper opportunity of hearing. The
learned Counsel for the appellant has emphatically contended
that no proof of service of notice exists, nor any valid mode of
publication of notice has been established. It is contended
that the appellant was regularly appearing in Original
Maintenance Case No. 391/2023, as evident from the
order-sheet, and was attending conciliations, yet was never
informed of the pendency of the guardianship suit. The
appellant emphasizes that the minor girl, being below six
years of age, could not legally be entrusted to the father, as
settled law accords preferential custody to the mother in such
cases.
29. Per contra the learned counsel for respondent has
defended the impugned judgment by submitting that the
10

2026:JHHC:26955-DB
Family Court rightly considered the welfare and future
upbringing of the minor child and, therefore, no perversity
can be attributed to the order. It is urged that the order-sheet
clearly reflects service of notice upon the appellant both by
post and paper publication, and despite full knowledge of the
proceedings she chose not to contest, rendering her plea of
non-service and violation of natural justice baseless. Learned
Counsel further contends that the appellant deliberately
abstained from participating in the guardianship suit, and
hence the ex parte hearing was justified and the Family
Court’s direction to hand over custody to the petitioner-father
was proper and requires no interference .
30. In the backdrop of the aforesaid factual matrix, the
pivotal issue that now arises for determination before this
Court is whether the learned Family Court was justified in
proceeding ex parte against the appellant in a matter as
sensitive and delicate as the custody of a minor female child,
aged about four years, thereby depriving the appellant of an
effective opportunity of hearing.
31. The principal ground urged by the appellant-wife is
that the impugned judgment and decree have been rendered
ex parte, and accordingly this Court has refrained from
entering into the merits of the case. The focus of our scrutiny
is confined to the question whether, in a matter as sensitive
as the custody of a minor female child aged about four years,
wherein the welfare of the child is the paramount
11

2026:JHHC:26955-DB
consideration the passing of an ex-parte judgment can be
said to advance the cause of substantial justice.
32. It is admitted fact that the aforesaid Original Suit
(Guardianship) No.312/2025, was filed on 19/04/2025,
under Section 7 and 25 of Guardian and Wards Act, 1890 for
custody of minor girl child Insha Amir aged about 4 years.
From order sheet it is evident that thereafter the said suit
was admitted on 22/04/2025, by the learned Principal Judge
Family Court Ranchi and, thereafter, same was transferred to
the Additional Principal Judge, Additional Family Court-II,
Ranchi vide an order 22/04/2025, and, thereafter, the
direction was passed to filed requisite of notice and office was
directed to issue the notice.
33. The notices were filed on 29/04/2025 and, thereafter,
case was fixed on 05/05/2025 and, thereafter, the petitioner
(respondent herein) has filed a track report on 05/05/2025,
informing that the notices were served and filed postal receipt
however the court has directed to issue notice through court
and case was fixed on 09/06/2025, for service report and
next date was 09/06/2025, and, thereafter, an application
was filed on 09/07/2025, for paper publication and case was
fixed on 11/08/2025 and on 11.09.2025 copy of publication
of notice was filed and thereafter, case was fixed for ex-parte
on 13/10/2025.
12

2026:JHHC:26955-DB
34. From the aforesaid factual aspect, it appears that in a
hurried manner the case was declared Ex-parte without
following the mandate of Civil Procedure Code 1908.
35. In the aforesaid context it needs to refer herein that the
fact remains that the court of law can proceed by setting the
proceeding ex parte but before doing that the effective steps
to secure the appearance of the contesting party (s) is
mandatorily to be taken which is lacking in the present case
which is to be based upon the procedure as laid down in the
Code of Civil Procedure. But without following the mandate of
the procedure as laid down in the Code of Civil Procedure in
entirety, the proceeding has been set ex parte vide order
dated 13.10.2025 and thereafter the impugned judgment has
been passed on 19.05.2026.
36. Further, it needs to refer herein that the present
appellant has filed Original Maintenance Case No.391/2023,
in which the final order of the maintenance was passed on
23rd April, 2025 and during the pendency of the Original
Maintenance Case No.391/2023, the Original Suit
(Guardianship) No.312/2025 was filed by
petitioner/respondent, even then she had not been informed
with respect to the pendency of said suit i.e. the Original Suit
(Guardianship) No.312/2025 though she was regularly
attending the court along with her child.
37. It is pertinent to record that the petitioner/respondent
has not been making regular payment of the maintenance
13

2026:JHHC:26955-DB
amount awarded in favour of the appellant, which compelled
her to file an application dated 28.07.2025 for realization of
the arrears. In that proceeding, notices were duly issued and
the appellant has been regularly attending the court, even
collecting certain sums tendered in cash by the
petitioner/respondent. It is the case of the appellant that
despite such regular attendance; she was never informed
about the pendency of the guardianship suit which reflects
the ulterior motive of the petitioner/respondent.
38. Thus, from perusal of entire factual aspect, it is
apparent that no adequate and proper opportunity was
afforded to the appellant to appear, in such a sensitive issue
of custody of minor girl child aged about 4 years.
39. It needs to refer herein that Procedural and technical
hurdles shall not be allowed to come in the way of the court
while doing substantial justice. If the procedural violation
does not seriously cause prejudice to the adversary party,
courts must lean towards doing substantial justice rather
than relying upon procedural and technical violation,
reference in this regard be made to the judgment rendered by
the Hon’ble Apex Court in the case of Sugandhi v. P.
Rajkumar, (2020) 10 SCC 706.
40. In the case of Jasraj Inder Singh v. Hemraj
Multanchand, (1977) 2 SCC 155 the Hon’ble Apex court
has observed that “Justice is truth, is beauty and the strategy
of healing injustice is discovery of the whole truth and
14

2026:JHHC:26955-DB
harmonising human relations. Law's finest hour is not in
meditating on abstractions but in being the delivery agent of
full fairness. This divagation is justified by the need to remind
ourselves that the grammar of justice according to law is not
little litigative solution”.
41. Justice is nothing but a manifestation of the truth. It
is truth which transcends every other action and when
procedural law stands in the way of the truth, the Court must
find a way to circumvent it. Similarly, when substantive law,
as it appears, does not facilitate the emergence of the truth, it
is the paramount duty of the Court to interpret the law in
light of its teleos. Such an exercise is warranted in a higher
degree, particularly while considering a social welfare
legislation, reference in this regard be made to the judgment
passed by the Hon’ble Apex Court in the case of Om Prakash
@ Israel @ Raju @ Raju das Vs. Union of India & Anr.
2025 INSC 43.
42. At this juncture it needs to refer herein that the word
‘perverse’ has been interpreted by the Hon'ble Apex Court
which means that there is no evidence or erroneous
consideration of the evidence. The Hon'ble Apex Court in
Arulvelu and Anr. vs. State [Represented by the Public
Prosecutor] and Anr., (2009) 10 SCC 206 while elaborately
discussing the word perverse has 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
15

2026:JHHC:26955-DB
irrelevant material or if the finding so outrageously defies logic
as 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 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.
16

2026:JHHC:26955-DB
“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.””
43. 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.
44. Thus, “perversity” refers to a finding or decision so
unreasonable or irrational that no reasonable person acting
judicially could have reached it. It signifies a gross and
unreasonable assessment of evidence or law by a court.
17

2026:JHHC:26955-DB
45. 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.
46. 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 judgment fall squarely within the ambit of
perversity.
47. The learned counsel for the appellant has further
contended that the learned Family Judge has deviated from
the settled position of law which unequivocally provides that
custody of a child below six years of age ordinarily cannot be
entrusted to the father. It is urged that even on this
fundamental ground, the impugned judgment suffers from a
patent error, rendering it perverse and unsustainable in the
eye of law.
48. Since this Court has consciously restrained itself from
delving into the merits of the controversy and has confined its
scrutiny to the propriety of the impugned judgment having
been passed ex parte, yet, inasmuch as the plea of perversity
has been raised on the ground of deviation from the settled
18

2026:JHHC:26955-DB
legal position, this Court deems it fit and proper to advert, by
way of passing remarks, to certain authoritative
pronouncements and established principles of law governing
custody of minor children.
49. In the Modern Text Books on the Muslim law, such as
Mulla's principles of Mahomedan Law, Chapter 18, headed as
Guardianship of Person and Property is divided into three
parts: A.—Appointment of Guardians: B.— Guardians of the
Person of a Minor : and C.— Guardian of the Property of a minor .
50. Part B is sub-divided into three parts 8(i) Custody of
boys under seven and of girls under the age of puberty ,
(ii) Custody of boys over seven and of girls who have attained
puberty and (iii) Custody of illegitimate Children .
51. Under the first of these, paragraph 352 defines and
describes the mother's right to custody of infant children,
called Hizanat . Thus, the entire chapter relating to
guardianship of person of a minor speaks of Hizanat .
52. The term “Guardianship” (Wilayat) connotes the
guardianship of a minor. Guardianship of a minor person
means an overall supervision of the minor's personality. It
means care and welfare of the child including the liability to
maintain it. It is more than simply custody of the child upon a
certain age. Under Muslim law, it is called HIZANAT. Although
mother is not the natural guardian of the child but she is
entitled (1) in Hanafi law to the custody (hizanat) of her male
child until he has completed the age of seven years and of her
19

2026:JHHC:26955-DB
female child until she has attained puberty and (2) According
to Shiah Ithna Ashari Law, the mother has the right to the
custody of a male child until he attain the age of two years
and of a female child until she attains the age of seven years.
In Shiah Ithna Ashari law after the child attains the age, as
stated above, the father has the right to the custody of the
child.
53. The mother has a preferential right to the custody of
her children, known as Hizanat. For a male child, the
mother's right to custody extends until the child completes
seven years of age. For a female child, the mother's right
continues until the daughter attains puberty. This right is not
absolute and is subject to the paramount consideration of
welfare of the child.
54. It is settled position of law mother can exercise
guardianship of the person of a minor daughter (Hizanat) till
the girl attains puberty after which the guardianship of the
person is that of the father if the girl is unmarried and that of
the husband if she is married’ and has gone to her husband,
reference in this regard be made to the judgment rendered by
the Hon’ble Apex Court in the case of Valia Peedikakkandi
Kutheessa Ummaand Others Vs. Pathakkalan
Naravanath Kumhamuand Others 1964 SCR (4) 549.
55. But this right is not absolute and is subject to the
paramount consideration of welfare of the child as per the
mandate of Section 17 of the Guardians and Wards Act,
20

2026:JHHC:26955-DB
1890. In matters of custody, the welfare of the children is the
sole and single yardstick by which the court shall assess the
comparative merit of the parties contesting for custody.
Stability and consistency in the affairs and routines of
children is also an important consideration for the courts
while deciding the custody of the child.
56. On the basis of the discussion made hereinabove, this
Court is of the considered view that the issue of custody of a
minor child cannot be adjudicated in the absence of
participation by both parties. In matters where the
paramount consideration is the welfare of the child,
determination cannot be undertaken ex parte, for without
hearing one of the stakeholders, the Court concerned is
deprived of the necessary perspective to render a just and
equitable decision.
57. Since this Court has already recorded in the preceding
paragraphs, the impugned judgment, having been passed ex
parte, suffers from perversity owing to non-adherence to the
mandate of the Code of Civil Procedure, particularly Order V,
inasmuch as the proper course was not followed to secure the
appearance of the appellant-mother, therefore this Court is of
the view that such a decree cannot be permitted to stand
and exercising appellate jurisdiction, and having found
sufficient cause to interfere, this Court deems it just and
proper to set aside the impugned judgment.
21

2026:JHHC:26955-DB
58. Accordingly, the judgment dated 19.05.2026 passed by
learned Additional Principal Judge, Additional Family Court-
II, Ranchi in Original Suit (Guardianship) No. 312 of 2025 is
hereby quashed and set aside.
59. Consequently, the Original Suit (Guardianship) No. 312
of 2025 decided by the learned Additional Principal Judge,
Additional Family Court-II, Ranchi is hereby revived from the
stage of notice, so that the dispute may be adjudicated afresh
on its own merits in accordance with law.
60. The appellant is present being represented through her
counsel has undertaken before this Court that she will put
her appearance before the learned Family Judge within 4
weeks.
61. The learned Family Judge is to issue notice upon the
respondent herein, who was petitioner to the original suit and
thereafter proceed to decide the matter on merit in
accordance with law, as expeditiously as possible.
62. It is made clear that the learned Additional Principal
Judge, Additional Family Court-II, Ranchi, while adjudicating
the issue will not be prejudiced by any observation contained
in this order.
63. Before parting with this order, it is necessary to
reiterate that it is the statutory duty of this Court, while
exercising appellate jurisdiction, to scrutinize the legality and
propriety of the findings recorded by the Family Court. Where
infirmities are found in the impugned judgment, it becomes
22

2026:JHHC:26955-DB
incumbent upon the appellate Court to correct the same and
to restore the position of the parties in accordance with law,
thereby ensuring that justice is duly served.
64. It is hereby directed that, in the event the
appellant-wife has already handed over custody of the minor
child to the respondent-father in compliance with the
directions contained in the impugned judgment of the learned
Family Court, such custody shall forthwith stand restored to
the appellant-wife. This direction is necessitated to ensure
that the appellant is not prejudiced by compliance with an
order which now stands set aside, and further, to safeguard
the paramount consideration of the welfare of the minor child
pending fresh adjudication.
65. Accordingly, the instant appeal is hereby disposed of
with aforesaid direction and observation
66. Pending I. A(s), if any, stand disposed of.


(Sujit Narayan Prasad, J.)
I agree.

(Sanjay Prasad, J.) (Sanjay Prasad, J.)

Dated : 07/09/2026

Birendra /
A.F.R.

Uploaded on 07/09/2026
23