Avinash Chander vs Smt. Anita Kumari

V.S. Aggarwal, J.—This is an appeal filed by Avinash Chander (hereinafter described as ''the appellant'') directed against the judgment pronounced by the Guardian Judge, Gurdaspur, dated 17.2.1997. By virtue of the impugned judgment, the learned Trial Court had dismissed the application filed by the appellant for custody of his son Sunny.

The relevant facts which are not controverted are that appellant was married to respondent No. 1 on 18.10.1985. They were blessed with a child on 2.11.1986. Appellant and respondent No. 1 started living separately though it is contended that there was desertion since 1988. A decree for divorce by mutual consent was granted on 8.6.1990. There was no application made for claiming the custody of the child and he remained with respondent No. 1. The appellant remarried on 29.8.1992. Respondent No. 1 also remarried on 12.8.1993 with respondent No. 2. Respondent No. 2 has already two children from his previous wife.

Appellant contends that he should be given the custody of minor child Sunny who is about 11 years of age. Presently, the child is living with his maternal grand-mother. The learned Guardian Judge framed the issue as to whether welfare of the child lies with the appellant or not, on consideration of the evidence, it was held that the child has been living away from the appellant for many years and further that the application was barred u/s 26 of the Hindu Marriage Act. The application as such was dismissed holding that welfare of the child does not lie to live with the appellant.

It was not being disputed at the time of arguments that welfare of the minor child is paramount consideration. It is unfortunate that despite the aforesaid the appellant who is the father of the minor child and respondent No. 1 could not live together. As mentioned above there was a decree for divorce by mutual consent. The natural father and mother of the minor child have remarried. The child is living with the maternal grand-mother.

It appears that reason for filing the present application and the appeal is that despite the re-marriage of the appellant, he has not been blessed .with any other child. Irrespective of the said reason, the welfare of child Sunny has to be considered. After the decree for divorce was granted, for 8 years no attempt had been made by the appellant to get the custody of the child. The child kept on living with his maternal grand-mother. The interest of the child obviously lies where he is presently living. He is studying in a school and the Court was informed that the said school is upto Class 10 + 2.1 had talked to the child in Court in presence of his natural mother and the father. He was not willing to go and live with the appellant. The agony of the child could not be increased particularly when he has reached an age when he can decide as to where he would be more comfortable. In the peculiar facts of this case, there is no ground to interfere in the impugned judgment of the learned Guardian Judge. The appeal being without merit must fail and is dismissed.