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Child cries in court: Father denied custody:High Court

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST APPEAL NO. 86 OF 2010

Popendra Datt Painuly,

S/o Sri Purshottam Datt Painuly,

R/o Tehri Visthapit Basti, Village Pathri, Near Pathri Railway Station, Tehsil and District Haridwar. .Appellant.

Versus

1. Smt. Sunita,

D/o Sri Shyam Lal Ratudi,

C/o Shanti Prasad Kotiyal,

R/o Gali No. 6, Haridwar Road, I.D.P.L. Durga Mandir Rishikesh, P.S. Rishikesh, District Dehradun.

2. Km. Ritu, D/o Popendra Datt Painuly, Through her guardian Mother Smt. Sunita, D/o Sri Shyam Lal Ratudi, C/o Shanti Prasad Kotiyal, I.D.P.L. Durga Mandir, Rishikesh, P.S. Rishikesh, District Dehradun. ..Respondents.

Present:- Sri Vivek Shukla, Advocate for the appellant.

Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhulia, J.

Prafulla C. Pant, J. (Oral)

1. This is Delay Condonation Application No. 10753 of 2010 for condonation of delay in filing the appeal against order dated 29.3.2010, passed by Additional Judge, Family Court, Rishikesh in Misc. Case No. 4 of 2008 (G & W).

2. Heard.

3. There is delay of 232 days, which is sufficiently explained in the affidavit filed by the appellant. The Delay Condonation Application No. 10753 of 2010 is allowed, and delay is condoned.

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4. Also heard on admission, and perused the order dated 29.3.2010 passed by trial court, whereby the application for custody of female child to the appellant (father) is declined.

5. Brief facts of the case are that appellant Popendra Dutt Painuly got a decree of divorce against his wife Smt. Sunita (respondent no. 1) vide judgment and order dated 3.7.2007 passed by Judge, Family Court, Haridwar in Original Suit No. 33 of 2007. It appears that two children (both female) had born out of the wedlock, and they were living with their mother. An application was moved before the Additional Judge, Family Court, Haridwar for custody of child Kumari Ritu, aged 6 years, by the father (present appellant).

6. The impugned order shows that respondent Smt. Sunita brought Kumari Ritu to give the custody of the child to the present appellant in the court. But the child started crying and insisted that she would not leave company of her maternal grand-father, with whom her mother is living. Keeping in mind the interest of the child, the trial court rejected the application for custody of child, moved by the father.

7. It is a settled principle of law that in the matters of custody of children, the paramount consideration is the interest of the child. It is a case of custody of a minor female child, aged 6 years, who expressed before the court that she is not inclined to go to with her father, and insisted that she would live with her maternal grand- father, where she is living with her mother. Considering the facts and circumstances of the case, this court does 3

not find any illegality in the order dated 29.3.2010 passed by the trial court on the application, moved by the divorcee husband (father of the child).

8. Therefore, the appeal is dismissed summarily with the observation that the appellant is not barred from moving fresh application in the changed circumstances of the case, for the custody of the child.

(Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) 23.12.2010

Rathour

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