Madan Lal vs Bholi Devi

An order passed by the learned District Judge, Jammu on 351934 is impugned in this appeal. The learned District Judge has directed that the

ward be kept under the custody of the respondent, who is her mother and has issued warrants for the recovery of the ward from the appellant for

implementing his order.

The brief facts of the case are that the respondent Bholi Devi his stated in her application that she was married to the appellant at Jammu and out

of the wedlock a female child was born who was taken away from her custody by the appellant about eight months prior to the institution of the

application, from Jammu. The minor female child is stated to be of tender age and it is stated that it would be in her benefit if the minor is placed in

her custody The respondent has further stated that she is employed in the Education Department and is drawing salary and can lookafter the minor

very well. She claimed custody of the minor on these facts. Objections to this application were filed by the husband who has denied the averments

made in the application. It is stated by the appellant that the minor was born at Lati Shat tehsil Sopore, the original home of the appellant on

1221981 and the respondent without caring for the minor left the appellant's home on 481981 and since then is being looked after by the

appellant's mother. Jurisdiction of the District Judge is also challenged. The parties led evidence before the court below to prove their respective

contentious. On behalf of the respondent Joginder Raj and Garib Dass have appeared as witnesses besides the respondent has appeared as her

own witness. On behalf of the appellant one Abdul Khaliq Bhat Advocate Sopore has appeared as a witness. The trial court after appreciation of

evidence on record has come to the finding that the parties were married at Jammu and during the advanced stage of pregnancy of the respondent,

the appellant had taken her to Lati Shat tehsil Sopore where she gave birth to the ward, a female child called Renu. The respondent alongwith

ward returned to Jammu and was living with her mother. The appellant removed the ward from the respondents, custody at Jammu and took her to

Lati Shat Tehsil Sopore. The respondent alongwith her mother had gone to Lati Shot to get the ward back but they were turned out by the

respondent from his home. This finding of fact is arrived at by the trial court after thoroughly scrutinising and after. Weighing the evidence led by the

parties. The trial court had rightly ignored the minor discrepancies in the statements of the witnesses arid has based its conclusions on probabilities

and preponderance which a prudent man can conclude in the circumstances. On this basis the trial court has passed the impugned order and has

ordered the custody of the minor ward to be handed over to the respondent.

Learned counsel for the appellant has vehemently argued before me that the order passed by the trial court is bad and perverse and is against

the Weight of evidence on record. I have myself thoroughly gone through the evidence on record and the learned counsel for the appellant has

critically analysed the evidence on the record with a view to convince me about the perversity committed by the trial court in arriving at the

conclusions but I am unable to agree with him in this regard. After examining the evidence I am convinced that the ward was born at Sopore and

the respondent had brought the ward to Jammu as she could not have afforded to leave the baby of one month behind her and desert a milk

lucking baby in the manner in which it issuggested by the appellant. The storey set up by the appellant about the desertion of the ward by the

respondent is improbable and does not inspire confidence. As such it is held that the ward was removed by the appellant from Jammu from the

custody of the respondent. This will settle the objection as regards the jurisdiction of the trial court, 'Under Section 9 of the Guardian and wards

Act, an application for custody of an ward is to be made in a court in which the ward ordinarily resides. The ward cannot be held to be resident of

Lati Shot, tehsil Sopore merely because he has born there. The ward was residing at Jammu with her mother at the time of removal and therefore

District Court at Jammu had the jurisdiction to entertain and decide the application. Determination of question of jurisdiction depends on the facts

of the case. It is found on evidence that the ward was residing at Jammu at the time of her removal from there, therefore, District Court at Jammu

was vested with the powers to entertain the application and pass the order u/s 25 of the Guardian and wards Act.

That brings me to the main controversy as to who is entitled to the custody of the ward. Learned counsel for the appellant, has relief on Section

6 of the Hindu Minority and Guardianship Act of 1957. Under the provisions of this section father is the mutual guardian of a child but in the case

of a minor who has not completed the age of five years, the custody shall ordinarily be with the mother. Admittedly this Act is applicable to the

parties as they are Hindus. It is also admitted that the minor is only about three years of age. Therefore, ordinarily her custody must remain with the

mother u/s. 6 of the Hindu Minority and Guardianship Act even though the father may be the dejure guardian Beamed counsel for the appellant has

argued that it will be in the interest of the minor itself if she is kept with her father because the father is a well to do person and is a man of

substance According to him minor can be looked after freely by the father and not by the mother. I am afraid I cannot agree with this contention of

the learned counsel for the appellant, because the financial resources is not the criteria for determining as to who should have the custody of the

minor. I could understand if the appellant had preyed in this case that the mother of the minor was leading an unchaste life or was morally

illreputed, which could have been taken into consideration while ordering custody of the minor because that would have affected the development

of the minor and her character also. But nothing of the sort is even suggested by the appellant either in his pleadings or in evidence. The capacity to

have custody of the child would depend of physical, moral and psychological strength of a person and the capacity cannot be judged in terms of

money. Therefore, this contention of the learned counsel for the appellant is also overruled.

Learned counsel for the appellant then argued on the basis of an authority viz. Latiffa Vs. Shakura reported in AIR 1973 All 441 that unless the

court finds that the minor was in the custody of a guardian and was taken away by some person, no order u/s 25 of the Guardian and wards Act

for the return of the minor can be passed. Facts of that case are distinguishable from the facts of the present case. In the Allahabad case the minor

whose custody was sought was a married girl and she had also objected to go with the applicant. The District Judge in that case had not given a

categorically finding as to whether Mst. Latifa was removed from the lawful custody. The case was remanded back to the District Judge for

determination of that question. In the instant case there is a positive finding of the District Judge that the minor was removed from the custody of

the respondent and therefore custody of the minor was restored to her.

On the question of jurisdiction, the learned counsel for for the appellant has produced a number of authorities which I should not discuss

because as a matter of fact I have held that the miner was residing at Jammu and was removed from the custody of her mother from Jammu.

Therefore I have overruled the objection regarding lack of jurisdiction raised by the learned counsel for the appellant.

The learned District Judge has in his well reasoned judgement held that the minor who is a female child of three years of age must be put in the

custody of the respondent who is her mother. The mother has also offered to maintain the child and has stated that she is a salaried employee

drawing monthly salary. She has also stated that she is in a position to maintain the minor It is in the interest of minor who is a female child of three

years of age to Jive with her mother and the mother cannot be deprived of her custody only on the ground that 'the father is a well to do person

and is in a position to maintain the minor.

In view of the foregoing reasons, I see no force in this appeal which is dismissed and it is directed that the order of the District Judge be

implemented forthwith. In view of the peculiar circumstances of the case I have the parties to bear their own costs.