Anil Kumar Mehta vs Mrs. Anshu Bala

Sarojnei Saksena, J.—Father appellant has assailed Trial Court''s order dated 27.9.1994 whereby his petition filed u/s 25 of the Guardians and Wards Act was dismissed.

Admittedly appellant was married to respondent on 18.11.1987. In this nuptial union she gave birth to a son Pukhraj Mehta @ Vicky on 23.3.1989. This minor child is living with the respondent since his birth except for four days from 15.11.1991 to 19.11.1991 when the respondent and the minor resided with the appellant.

In a nutshell the appellant-petitioner''s contention is that he and the respondent could not live in harmony for long. Estrangement between the two commenced even before the birth of the son. Vicky was born at respondent''s parental home. He filed a petition u/s 9 of the Hindu Marriage Act in July, 1989 but was withdrawn as the respondent agreed to join the matrimonial home. At that time for four days she lived with him but she left the nupital home on 19.11.1991 on a false pretext. Thereafter she never came back. On 24.5.1989 she filed a petition u/s 125 Cr.P.C. which was decided on 10.4.1992 as he agreed to pay Rs. 225/-per month for the maintenance of the child. On 23.4.1992 she filed another petition u/s 125 Cr.P.C. which was decided on 25.7.1992 as again he agreed to pay Rs. 325/- per month as maintenance to her also. In the petition filed u/s 9 of the Hindu Marriage Act also till the decision of that case he was paying her Rs. 600/- per month as maintenance. In all these proceedings she contended that she is unable to maintain herself, hence maintenance was claimed and allowed. This shows that she is not in sound financial position to maintain the child. Conversely he is earning handsomely and can very well maintain the child. He intends to get his child admitted in some good English Medium School. For that purpose he arranged for his admission in Dagshai Public School, Dagshi Cantt, Shimla Hills. The respondent is not in a position to provide good education and nutritive diet which is essential for the welfare of the minor child. Thus he prayed that custody of Vicky be given to him.

The respondent in her reply admitted the aforesaid legal proceedings but according to her in November, 1991 she was turned out of the matrimonial home by her father-in-law alongwith the child. According to her, Vicky is studying in a school and is doing well. Just to harass her, he wants to admit the child in some English medium institution though the child is less than five years. She and her parents are looking to the welfare of the minor with utmost care, love and affection. Petitioner is employed at a far off place from Hoshiarpur. He cannot pay personal attention to the child. Hence dismissal of the petition was prayed.

Parties adduced evidence. The Trial Court came to the conclusion that the child is aged only about 5 1/2 years. He is living with his mother who is looking after him with all love and affection. She is well educated. The petitioner- appellant''s family is also residing at Hoshiarpur. No doubt u/s 6 of the Hindu Minority and Guardianship Act, 1956, the appellant is natural guardian of the minor but considering the paramount welfare of the child, the lower Court thought it proper that the custody be with the mother at the present moment. The Trial Court further expressed that in future the father may seek the custody of the child if he thinks that overall development of the child or his study is being affected adversely because of his being in the custody of the mother. Hence the petition was dismisses.

During arguments the appellant pressed strongly that when he filed the petition u/s 9 of the Hindu Marriage Act, she came round but in that proceedings also she claimed maintenance for herself alleging that she has no independent source of income. She filed two petitions u/s 125, Cr.P.C. again alleging that she is not earning and is unable to maintain herself and the child. In all these proceedings he agreed to pay maintenance to her as well as to the child. She was teaching in one school but she submitted a false affidavit that she is not earning. Even her father submitted a false affidavit to that effect. The child is studying in Vidya Mandir School, Hoshiarpur. Though he wanted him to admitted in Dagshai Public School and spent Rs. 1,000/- for that purpose but his attempt was frusted as the custody of the child is with his wife. He is earning about Rs. 5,000/-. It is in the welfare of the child that he is given in his custody.

The respondent''s learned Counsel contended that the child is studying in Vidya Mandir School, Hoshiarpur and is doing very well, he is securing 95 per cent marks in the school examination. The respondent is M.A. She is living with her parents, brother and sister. Her brother is an engineer and sister is a teacher in Vidya Mandir School, Hoshiarpur. So far as the financial status is concerned even the appellant has admitted that she has taken Kisan Vikas Pattaras of Rs. 30,000/- and also obtained F.D.R. of Rs. 30,000/- in 1994. The appellant is also paying maintenance to both of them. Hence the Trial Court has rightly held that it is in the welfare of the child that he should be allowed to live with the mother.

He further submitted that if the appellant wants to meet the child he can go to his school for that purpose as already ordered by the Trial Court.

From the appellant''s own statement it is clear that he is not employed in Hoshiarpur. He is stated that his father has an ancestral house in Hoshiarpur where his father, mother and elder sister are residing. Her elder sister is also employed, her daughter is aged about 9 years. In her absence she is looked after by his mother. He has categorically stated that Vicky will reside with his parents in Hoshiarpur. This further shows that if the custody of child is given to the appellant, the child will be deprived of the parental love because the appellant will not be residing with him. So far as family background is concerned, his mother is aged 62 years, and father is aged about 63/64 years. His elder brother''s wife is also not residing with them. He is hiding certain facts. He does not know educational qualifications of his mother and father. He does not know whether his brother''s wife is not residing with him for the last 4/5 years. So far as the financial capabilities of the respondent are concerned during arguments the appellant admitted that she is having Kisan Vikas Pattaras worth Rs. 30,000/- and F.D.R. of Rs. 30,000/-. Further he is paying maintenance to both of them. The respondent is a Post-Graduate. She is also a teacher. She is looking after the child with love and affection. The child has lived with him only for four days. He intends to keep the child with his parents at Hoshiarpur thereby he will be depriving the child of the care, love and affection of both the parents.

No doubt u/s 6 of the Hindu Minority and Guardianship Act, 1956 father is the legal guardian of a minor son. The natural and legal guardian of children have duty of looking after, upbringing, making proper arrangement and providing maintenance to them. Now appellant has filed a divorce petition against the respondent. Thus it is evident that it is a breaking marriage. The appellant has no permanent abode. Uptil now he has resided at various places in various States in connection with his service.

In such matters welfare of the child is of paramount consideration. The right of the natural and legal guardian of the minor to have its custody is not the only consideration. This right recedes back. If in future he obtains a divorce decree against the respondent then the child will be in a precarious psychological trauma. Even today since the child has lived with the father only for four days he will not be comfortable in his company. While considering the point of custody not only the financial status of the parties is to be taken care of but this aspect is more significant whether the child will get an atmosphere of care, love and affection to grow in a healthy manner. The cultural and social background of the family also plays an important role. Appellant is having a broken home.

Under the above circumstances the Trial Court has rightly dismissed the appellant''s petition. I find no reason to disagree with the findings of the Trial Court. There is no merit in appeal Dismissed. No order as to costs.