Chhindo vs Madan Lal

A.L. Bahri, J.—This appeal has been filed by Chhindo, wife of Madan Lal respondent, challenging order dated May 24, 1989, passed by the Gurdian Judge, Jalandhar, directing handing over the custody of two minor children, namely Chandi Devi and Deepak Kumar to Madan Lal. The order was passed on the application of Madan Lal filed u/s 25 of the Guardian and Wards Act.

The marriage of the parties was solemmised in 1968 at Jalandhar. Out of the wedlock six children were born. Out of them two died. The elder children Gurdial Singh and Amrit Kaur, students of 10th and 7th class, respectively, are residing with Madan Lal, the father. The petition for custody of the other two children Chandi Devi and Deepak Kumar was filed, Chhindo left the matrimonial house in June, 1986. When the husband objected to the visit of strangers she reacted sharply that she was at liberty to spend her time with any body. On that account she and the strangers gave injuries to Madan Lal on August 13, 1987. He got himself medically examined and lodged the report at Police Station Sadar, Jalandhar. He further alleged that Chhindo, the wife, had no source of income and had filed a separate application for maintenance for herself and for the two children. He being the natural guardian of the minor children was, thus, entitled to their custody.

Chhindo contested the petition, inter alia, alleging that the same was filed as a counter blast to her application for the grant of maintenance. She denied the allegations levelled against her that she had relations with strangers. Those persons were stated to be her cousins. According to her the husband deserted her and left the matrimonial house along with the two children. It was denied that she or her cousions caused injuries to Madan Lal on August 13, 1986. She was maintaining the two children living with her. Her parents were providing food and other expenses for their education. She further alleged that Madan Lal after purchasing a plot had constructed the house about five years ago and had asked the wife to bring Rs. 10,000 from her parents. Since the amount was not paid he became angry and relation became strained. She approached Stree Sabha when she was given beating by him. He did not appear on the dates fixed by the Stree Sabha. She referred to the litigation pending between the parties i.e. application for maintenance and a petition for divorce filed by Madan Lal. In spite of the order of maintenance, no amount was paid by him for the maintenance of the children. It was further alleged that Madan Lal was working as a mason ; was expected to remain, out of house from 7.00 a.m. to 6.0.0 p.m. and it would be in the interest of the minor children that they should continue staying with the mother who can well look after them.

The Court framed the following issues: -

(1) Whether the petitioner is entitled to the custody of the minors? OPA.

(2) Relief.

Madan Lal appeared himself as his own witness and examined Charan Singh, Udho Ram and Gurdial Singh (son) and Karam Singh. Chhindo appeared as her own witness and produced Moti Ram, Shingara Ram and Smt. Chain. Under issue No. 1 the Guardian Judge held that it would be in the interest of the minors that they should live with the father who was their natural guardian and entitled to custody under Sections 5 and 6 of the Act.

I have heard the Counsel for the parties and have perused the evidence produced in the case.

On principle, there is no dispute that it is in the welfare of the minor/minors that should be kept in view while deciding the matter of their custody to be given either to the father or to the mother. The Supreme Court in Rosy Jacob v. Jacob A. Chakramakkal (1973) S C C 840, while interpreting Section 25 of the Act, observed as under :-

" The object and purpose of this provision being ex facie to ensure the welfare of the minor ward, which necessarily involves due protection of the right of his guardian to properly look after the ward''s health, maintenance and education, this Section demands reasonably liberal interpretation so as to effectuate that object. Hypertechnicalities should not be allowed to deprive the guardian, the necessary assistance fromt he Court in effectively discharging his duties and obligations towards his ward so as to promote the latter''s welfare.

xxx xxx xxx xxx The Court''s power u/s 25 of the Guardians and Wards Act is to be governed primarily by the consideration of the welfare of the minors concerned. The discretion vested in the Court is, as is the case with all judicial discretions to be exercised jadiciously in the background of all the relevant facts and circumstances. Each case has to be decided on its own facts and other cases can hardly serve as binding precedents, the facts of two cases in this respect being seldom if ever-identical.

"In considering the question of the welfare of the minors due regard has of course to be paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minor''s welfare. There is a presumption that a welfare of the minor''s parents would do their very best to promote their children''s welfare and, if necessary, would not grudge any sacrifice of their own personal interest and pleasure. This presumption arises because of the natural, selfless affection normally expected from the parents for their children."

It is not necessary to refer to other judicial decisions on the subject laying down same principle. It may further be emphasised that no doubt in view of Sections 5 and 6 of the Act, father and mother are the natural guardians in order i.e. out of the two it is the father who is the natural guardian of the minor children entitled to custody. However, this provision has to be so interpreted that the paramount consideration that it is the interest or welfare of the minors which is to prevail. In this context reference may be made to decision of the Bombay High Court in Sau Anasuyabai v. Trymbak Balwant Rakshe 1985(2) HLR 294. In para 8 of the judgment it was observed as under :-

"The trial Judge seems to have been impressed by the fact that the father is the natural guardian and normally custody of a minor child above the age of five years should be with the father. The assumption of the trial Judge is wholly unwarranted and misconceived. There is no rule of law that a child above five years should always be given in the custody of the father, but on the other hand, the Court must consider on the facts and circumstances of each case whether it is in the interest of the child to hand over custody to the father. Especially, in the case of a female child the Court must bear in mind that it is desirable that the female child is normally kept in the custody of the mother irrespective of her age. The assumption that a child above the age of five years should normally be handed over in the custody of the father is entirely misconceived."

In that case the High Court allowed the custody of Rajashri, a femal child aged about 12 years and Kaluram, another minor, to the mother. The Guardian Judge relied upon a decision of the Kerala High Court in P.N. Ramachandra Iyer Vs. S.V. Annapurni Ammal Iyer, . In that case the mother had applied for the custody of 7 years old child against the father. Her application was declined holding that she was not the natural guardian in presence of the father. The rule of law as laid down in this case cannot be followed in view of the decision of the Supreme Court referred to above as paramount consideration in such like cases has to be welfare of the minor.

Learned Counsel for the appellant has argued that the respondent inspite of order of maintenance passed u/s 125 of the Code of Criminal Procedure did not care to comply with the same and did not pay any maintenance. In this manner, he is debarred from seeking costody of the minor children. There is force in this contention. When wife is not an earning hand and her husband has neglected to maintain her and the minor children living with her, she could approach the Court u/s 125 of the Code of Criminal Procedure for her own maintenance as well as for the maintenance of minor children living with her and in the present case Chhindo applied for the grant of maintenance in September, 1986 and Judicial Magistrate 1st Class, Jalandhar allowed the application on April 21, 1987 fixing Rs. 250 per mensem as maintenance for the wife and the children i.e. Rs. 150 for the wife and Rs. 50 to each of the minor children namely Chandi Devi and Deepak with effect from January 19, 1987. The present petition u/s 125 of the Act for custody of the minor children was filed by Madan Lal on February 2, 1987. As per statement of Smt. Chhindo, no maintenance was paid by Madan Lal after passing of the said order of maintenance. This would indicate that Madan Lal never intended to look after the minor children and the present petition was probably filed to forestall the order of maintenance to be passed by the Court. On that ground alone, custody of the minor children could not be given to the father Madan Lal. Similar matter came before this Court in Mohinder Kaur v. Jit Singh. 1976 Hindu Law Reporter 91, decided by B.S. Dhillon, J. The father had not paid the maintenance for the minor children to the wife and custody of the minor daughter was not given to him. The lower Court took into consideration the fact that the appellant Chhindo had no source of income and thus applied for the grant of maintenance. In suth circumstances, according to the lower Court, the welfare of the minor children could be there if the custody is given to the father Madan Lal. This is also wrong approach. As a matter of fact, such a question is to be decided on the facts and circumstances of the case. Merely because the mother was not having any source of income of her own per se could not be a ground to take away the custody of the minor children from her. The paramount consideration has to be to see the welfare of the minor children. The Delhi High Court in Narinder Kaur v. Parshotam Singh 1988(1) C L J 234, observed that where mother was not having an income of her own, this itself was no ground to deprive her of the custody of the minor child. It was further observed that no amount of wealth could be a substitute for the love, affoction and care which a mother could bestow on her infant child. In the present case, Chhindo R.W. deposed that her parents were providing for the food and expenditure of the two minor children living with her. Both the children are school going meaning thereby that their education is not suffering even if Madan Lal respondent had not looked after the maintenance of the minor children. The two minors with the mother are the younger ones whereas elder two children are with Madan Lal. When the mother is looking after the welfere and interest of the minor children with her, who are properly being educated, merely because Madan Lal being the father would be natural guardian as provided under Sections 5 and 6 of the Act is no ground to deprive the mother of the custody of the minor children.

The parties lived together of about 16/17 years. During this period of married life, in all there were six children born. Their relations remained cordial throughout except that in the year 1985, when Madan Lal constructed a house and demanded money from his wife to be brought from her parents that the relations became strained. Chhindo approached the Istri Sabha ahd P.W. 3 Smt. Sheela has further deposed to corroborate that Chhindo had injuries on her person and she was admitted in the hospital. After notices being issued, Madan Lal did not care to appear before the said Sabha. The story put forth by Chhindo appears to be correct that it was Madan Lal who left the matrimonial home along with two elder children whereas Chhindo continued living in his house with the remaining two children. Although initially Chhindo was given beating and turned out of the house, however, she returned to the matrimonial house after some agreements were executed by Madan Lal that he would not maltreat her further. Copies of the agreements were produced in the Court but were simply marked. However, the fact is also mentioned in the judgment of the Additional District Judge, who tried the petition filed u/s 13 of the Hindu Marriage Act by the husband for dissolution of marriage. Exhibit "A" is the copy of the judgment. The story put forth by the husband is that the wife had deserted him and was cruel was not accepted. The petition for dissolution of marriage was filed on August 26, 1986 and was finally decided and dismissed on June 15, 1988.

Keeping in view the peculiar facts and circumstances of the present case, I am of the opinion that welfare of the two minor children lies that they should continue staying with the mother who is properly looking after them and their education.

For the reasons recorded above, this appeal is allowed with costs. The judgment of the lower Court is set saide. The petition of Madan Lal for the custody of the two minor children stand dismissed. However, a direction is given that on alternative weekends, he may take the two minor children either from the school or from the house and bring them back on Monday morning. In this manner, the children would continue getting affection of the father as well.