Smt. Madhu Rajput @ Janki v. Vishnu Rajput

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR FAM No. 68 of 2018 • Smt. Madhu Rajput @ Janki W/o Vishnu Rajput Aged About 28 Years R/o Krishna Nagar, Bajrang Chowk, Supela Bhilai, District Durg, Chhattisgarh, District : Durg, Chhattisgarh ---- Appellant

Versus

1. Vishnu Rajput S/o Late Purushottam Rajput Aged About 28 Years Occupation Laborer, R/o Tulsipur Kakhtawar Chal, Ward No.18, Rajnandgaon, District Rajnandgaon, Chhattisgarh (Applicant Before Family Court)

2. Jageshwar Singh Rajput R/o Krishna Nagar, Ganesh Chowk, Behind Maya Tailors, Supela Bhilai, District Durg, Chhattisgarh (Non-Applicant Before Family Court), District : Durg, Chhattisgarh ---- Respondents For Appellant :

Shri Rakesh Pandey and Shri Abhishek Pandey, Advocates For Respondent :

Shri Hemant Gupta, Advocate Hon'ble Shri Justice Manindra Mohan Shrivastava Hon'ble Shri Justice Gautam Chourdiya Order On Board 20/08/2018 This is an application filed by the mother of the child for grant of permission to file an appeal. By impugned order, the Family Court has granted custody of the child to her father.

2.

Learned counsel for the appellant argues that the appellant was the mother of the child and she ought to be impleaded as party as she was the necessary party in the proceedings but the respondent did not implead her as party and only by impleading appellant's father, claimed custody of the child which was eventually granted to him in the proceedings. On this count, the appellant seeks permission of

the Court to prefer appeal.

3.

We find that the application for custody of child was moved by none other than father of the child against maternal grand father of the child on the allegation that the father is entitled to the custody of child but at that time, the child was in the custody of his father-in-law (maternal grand father of the child). Records of proceedings have also been perused by us. It is wholly improbable that the appellant was not knowing about the pendency of the proceedings. Permission has been sought mainly on the ground that she should have been impleaded as party rather than seriously disputing the finding of the Trial Court that at the time of filing of application, child was in the custody of the maternal grand father.

In view of provisions contained in Section 6 of the Hindu Minority and Guardianship Act, 1956 also, though ordinarily, mother is the natural guardian of the girl child aged below five years, in the absence of any serious dispute with regard to the custody of the child with the maternal grand father at the time when the case was filed, we are not inclined to grant permission to the appellant to challenge the impugned judgment and decree to which, she was not a party. The appeal is accordingly dismissed. We, however, leave the appellant to work out her own remedy to seek custody of the child through separate and appropriate proceedings on assertion of her claim that she is entitled to custody of child under the applicable laws including visitation rights.

Sd/- Sd/- (Manindra Mohan Shrivastava) (Gautam Chourdiya) Judge Judge Deepti