Kanshi Ram and Others vs Dropti

Bhawani Singh, J.—This appeal, u/s 47 of the Guardian and Wards, Act, 1890, has been preferred by the Appellants against the judgment of the Senior Sub-Judge, Bilaspur (exercising the powers of District Judge under the Act) dated 28-5-1987. They are the grand-father, grand-mother and uncle of the minor, Pawan Kumar.

The facts, briefly, are that Smt. Dropti (mother of the Minor) filed a petition u/s 25 of the Guardian and Wards Act, 1890 (hereinafter referred to as the Act). In this petition, she stated that her son was living with the Appellants and that she may be given the custody of the child. The marriage between Smt. Dropti and Sh. Nikku Ram son of Kanshi Ram, had taken place on 27th day of Phalgun Sambat 2029 BK. It was out of this wedlock that minor Pawan Kumar was born. On the date of the presentation of the petition, Pawan Kumar was about 6 years old. The husband of Smt. Dropti was serving in the Assam Rifles and was posted in Assam. About three years preceding the filing of the petition, he had married an Assamese girl, Neelam. Smt. Dropti further states that since after this second marriage of her husband, the Appellants started ill-treating her For the reason that they wanted her to divorce Nikku Ram. The behavior although tolerated for some time, could not ''be further tolerated with the result that she had to leave this family to stay at the house of her parents. It was here that minor Pawan Kumar was taken away from her by the Appellant Kanshi Ram. She being the legal and natural guardian was entitled to the custody of her son and it was also for the benefit of the minor to live under her care and affection. Whereas the Appellants had no right to take away her son from her and keep him with them. Besides, it was not safe for the minor to live with the Appellants since, when she visited him, she found an injury on his head whereby she suspected that the minor was subjected to beatings by the Appellant Kanshi Ram.

On the other hand, the Appellants, inter-alia, submit that the minor Pawan Kumer was living with them since the time when he was only ten months old. He was left by Smt. Dropti with them while she went away to live with her parents. Thereafter she never returned to their house nor ever cared to enquire about the welfare of the minor. They were looking after the minor since then. The factum of marriage by their son, Nikku Ram, with some Assamese girl has been denied and certain allegations against her character have also been made. Both the parties led evidence and placed their respective pleas before the court below and the final result was that the petition was allowed and the Appellants were directed to hand over the, Custody of the minor Pawan Kumar to the mother within a period of fifteen days from the date of the order, ft is this order which is being assailed by the Appellants before this Court. It is necessary to notice that this Court passed number of orders from time to time. However, no order restoring the custody of the minor to the Respondent was passed during this period although the Respondent was given visitation rights, on every working Saturday between 12 noon to 3.00 p.m. in the Government Primary School, Dokru, Tchsil Ghumar win where the minor, Pawan Kumar has been admitted for schooling. This Court further directed the head-master of the school to give the requisite facility to the parties to comply with the order. It was also directed that in case the school closes for vacation exceeding fifteen days, in that event, the access to the child be given during the same hours on every Saturday (falling during the vacation period) at the house of her brother Narottam Dutt resident of village Vijapur, Tehsil Ghumarwin.

Miss Kamlesh Sharma, appearing for the Appellants, has very seriously contended that'' the judgment under appeal deserves to be set-aside as the same is against the evidence on the record as well as against the interest of the minor which is of paramount interest in such like cases. Reference to the evidence on record was also made by the counsel for the parties.

The main emphasis of Smt. Dropti (A W-l) is that the child was taken away from her when she had come to live with her parents and that the Appellants are using the child for looking after the cattle. She further states that she found an injury on the head of the child when she visited him. In these circumstances, it was not in the interest of the minor of live with the Appellants -and she can look after him very well. She admits in cross-examination that before these proceedings she had moved the Court u/s 97 of the Code- of Criminal Procedure and the child was handed over to the Appellants. That time, the child had refused to recognize her. She had been awarded maintenance at the rate of Rs. 150/- per month. Besides this she has ho other income. Her husband is not traceable since the time he had deserted the army. She admits that the income of her father-in-law, Kanshi Ram, is quite sufficient. Nanku Ram (A W-3) states that mother and father can look after the child very well. In cross-examination he states that Smt. Dropti has no source of income and she may be earning by working as a labourer. Kanshi Ram, according to him, is a man of substance. He admits that children of agriculturists sometimes go along with their parents, to look after the cattle and minor Pawan Kumar also goes like this with his grand-mother. Another witness to support me case of the Respondent is Dhani Ram (A W-4).

On the other hand, Kanshi Ram states that the minor has been living in his family with him when it was only ten months old. It (he) is being looked after by them very properly and is very happy to live with them. He wants to educate the child and will educate after some time which Smt. Dropti cannot do being without any means. The child cannot live without him and his wife and in case custody is given to Smt. Dropti, the child will die. He has enough land at two places Dokru and Rachel. His son Gandhi Ram has no issue and in case he and his wife die, the child can be looked after by Gandhi Ram. He did not put the child in the school because he was afraid that Smt. Dropti may not take it (him) away. The child suffered an injury on its head but it was wrong that it was caused by him. Ram Ditta (R W-2) and Nand Lal (R W-3) also support the Appellants. Sh. Nand Lal (R W-3) further states that the injury on the head of the child was due to inter-se fight between certain children.

The statements referred to above were recorded in the year 1986 and 1987. Therefore, in order to know the latest position about the matter since the child has grown up by this time, Sh. Lekh Ram Head master, Government Primary School, Dhokm, was summoned and examined on 29-9-1989. He states that the minor Pa wan Kumar is studying in his school. He was admitted on 8-4-1987 and his date of birth is 19-11-4980 and he is studying in the third standard. He further states that Smt. Dropti visited the school in accordance with the orders of this Court and met the child for some time and she made such visits only on about three occasions. Thereafter she did not come. He also states that in the year 1987-88, the child attended 376 meetings out of 436 meetings. In 1988-89 the child attended 430 meetings out of 444 meetings and during the current year the child attended 128 but of 131 meetings. The child is mediocre in studies. In cross-examination, by the counsel for the Respondent Smt. Dropti, he states that he had instructed the class in charge to conduct the meetings between Smt. Dropti and: Pawan Kumar and during this course, the Appellant, Kanshi Ram, used to remain outside the school premises. This is the nature of evidence which has appeared in this case.

In the light of the aforesaid facts and circumstances the Fundamental thing to be seen is whether it is in the interest of the child that tile custody be handed over to Smt. Dropti Devi or it is allowed to remain with the grandparents where "the child is at presents.

The simple answer, on the facts on record, is that the child should remain where it is at present with the grandparents for the reasons that right from the beginning the child has been living with the Appellants. This fact is clear further from the order of the Court in the application moved by Smt. Dropti u/s 97 of the Code of Criminal Procedure when tile child was given to the Appellants. After this long lapse of time, the child has developed immense attachment with his grandparents who are looking after the child very well. The basic complaint of Smt. Dropti that the child is not being educated has been met since the child has been put in the school and is studying in the 3rd standard. He appears to be quite regular in attending the classes. The Appellant is a man of substance and this appears to be the only male child in the family, obviously he will inherit the property after the death of the grand-parents. On the other hand, Smt. Dropti does not appear to have a source of livelihood of her own. She is just living with her parents and the award of maintenance allowance in her favour by the court is also a far-cry since the husband is not traceable for the last many years. From the statement of the Headmaster, (Govt. Primary School, Dhokru, it is also clear that Smt. Dropti did not exercise her right of visitation after about three visits for no sufficient reasons. This demonstrates lack of interest in her in meeting the child, even though order to this effect was passed by this Court.

The aforesaid examination of the matter therefore clearly indicates and establishes that it is in the interest of the minor, at present, that it is allowed to remain in the custody of the Appellants.

The child is growing up and tomorrow when it attains the age of discretion, it may lean in favour of Smt. Dropti and start looking after her. The rights of visitation already allowed by this Court are protected. Smt. Dropti is at liberty to exercise them in the same manner as already ordered. The Head Master of the Schools, where ever the child may happen to study, will give effect to the order of this Court from time to time as and when Smt. Dropti visits the school to meet the child in accordance with these orders.

The result is that, except as to the right of visitation as aforesaid, the appeal is allowed. The judgment of, the Senior Sub-Judge, Bilaspur, is set aside. The parties are left to bear their own costs.