Panna Lal and Another vs Santosh

M.S. Liberhan, J.—This appeal has arisen from the judgment dated 4.2.1989 of the Guardian Judge, whereby he directed to hand over the custody of minor Neeraj to his mother and declaring her to be her natural guardian. Appellant No. 1 is the grand-father while appellant No. 2 is the uncle of minor Neeraj.

In this case we are concerned with the custody of the minor. Not only under the Guardian and Wards Act but also under the general principles of law and the scripture, child''s welfare is the principal consideration for giving the custody and guardianship of a minor. The welfare of the child is not to be considered only in terms of money or his physical welfare. His welfare is of wide amplitude. Numerous factors have to be taken notice of before custody of a minor child is given to a person. The circumstances cannot be itemised. The welfare of the child is to be considered under peculiar facts and circumstances of each case. One of the litmus tests suggested to find out where the welfare of a child lies, is what wise parents must ought to consder to be in the welfare of the child. It includes moral, intellectual, financial emotional, educational affluence and capacity to build the career of the child which are the prime considerations. The conduct and interest of the members of the family of the guardian have also to be taken note of.

In this case, Smt. Santosh was married to Budh Ram son of Panna Lal appellant No. 1. Budh Ram died on 2.5.1987 leaving behind his widow and two minor children-one of them being Neeraj in the custody of the appellants. After the death of her husband Budh Ram, Santosh started living with her parents with her one year old son Amit. According to the averments of the mother, she war turned out of the matrimonial home by her in-laws with one year old child while Neeraj was kept by his grand father. On 1.6.1987, the petitioner mother applied to the Guardian Court for custody of minor Neeraj, which unfortunately dragged uptil 4.2.1989 when the appellants were directed to handover the custody of the minor to his mother, The appellants preferred this appeal in which the operation of the said order was stayed by this Court.

It would be expedient to collate the sequance of the events which have taken place in this Court. On 27.9.1989 the matter came up for arguments. The appellant No. 1 was asked how much he could spend on his grand child particularly in view of his statement that he is earning about Rs. 6,000/- per month. He and his Counsel refused to give a specific answer in this regard. However, the mother-respondent offered to deposit Rs. 2400/- per year as educational and other expenses of the minor child. On this suggestion, Counsel for the appellants wanted to have instructions in this regard and the matter was adjourned to 20.10.1989. As a consequence of this order, the mother-respondent deposited the aforesaid amount whereas the appellants again came with no specific offer. Later a request was made that before deciding the appeal on merits, wishes of the minor child be ascertained. As a result, the child was sent for in this Court. Thereafter, the child was given to the mother and he stayed with her from 22.3.1991 to 12.4.1991. Another attempt was made for getting the child admitted in some hostel or residential school either at Panipat or Karnal. The mother-respondent further offered to pay Rs. 200/- per month towards the educational expenses of the child while the grand-father refused to share anything towards this count. All efforts to persuade the grand father to come with a reasonable offer failed.

I have perused the record and gone through the oral evidence produced on record as" well as the judgment of the Guardian Court.

In this case, the grand-father-appellant No. 1 stepped into the witness box as his own witness as R.W. 1 Panna Lal. He categorically stated that minor-Neeraj is living with him for the last more than two years and is studying in Gautam High School, at Panipat and he is spending about Rs. 200/- per month on his education etc. According to him his monthly income is Rs. 5,000/- to Rs. 6,000/-. He further stated that he alongwith his other married son who has three children and wife, are staying together in one room. R.W. 3 Notan Dass is another witness produced by the appellants who stated that appellant No. 1 is doing the job of picking up waste cotton from the looms and selling the same. Nothing has been produced on record to show the source of the fabulour income as alleged by the appellant. Except his self serving deposition, appellant No. 1 has failed to prove his income of Rs. 6,000/- per month, which cannot be accepted on the face of it. The adament attitude adopted by the appellants with regard to putting the child in some hostel or boarding and parting with some amount as their share for the expenses etc. goes to show that welfare of the child is not safe in the hands of the appellants.

The Guardian Court, on appreciation of evidence came to the conclusion that neither the petitioner-mother has been proved to have left the minor in the custody of the appellants nor it has been pointed out that appellant No. 1 has sufficient income to maintain the minor child. As enumerated above the welfare of the minor is the prime consideration in the case like the present one and the interest and welfare of the child shall be safeguarded if he is left in the custody of the mother. Nothing has been pointed out to take a different view. The mother-respondent admittedly is the natural guardian of the child. Ordinarily, all children under the age of 5 years feel secure and warm under the love and affection of their mother. There is nothing to suggest against the mother-respondent that she has no sufficient means to bring up the child in the best manner. On the other hand, she took prompt action to take his custody and even deposited the requisite amount for the educational expenses of the child. It is the dragity of the Court procedure which has delayed the custody of the minor to his mother and left some impressions on the mind of the child, which takes some time to be eliminated Even otherwise took the controlling circumstances is the interest of the minor and not the right of the parties. Mere preference of the child at this tender age will not be the sole factor for depriving the mother of his custody. Moreover, the grand father of the child is of grown up age with divided affection amongst his other grand children.

In view of the observations made above and keeping the welfare and interest of the minor at paramount consideration, I find no force in this appeal. The same is dismissed with no order as to costs.