Parveen Bala @ Veena Rani vs Jagdish Rai

G.R. Majithia, J.—This appeal is directed against the order of the Guardian Judge whereby he held that the respondent is entitled to the custody of his minor son Sonu and a direction was issued to the wife to deliver his custody to the respondent.

The facts ;

The respondent (hereinafter referred to as the husband) moved a petition u/s 25 of the Guardian and Wards Act, 1925 for his appointment as guardian of the minor and for custody of his minor son Sonu against the appellant (hereinafter referred to as the wife). The parties were married on February 28, 1979. A male child Sonu was born on May 16, 1980. The wife gave birth to a daughter in July, 1982. The parties lived together till November 13, 1981. According to the husband, the wife had gone to attend the marriage of her younger sister and did not return to the matrimonial home thereafter. The wife contends that she was turned out of the matrimonial home by giving her beating since the husband and his parents were not satisfied with the dowry brought by her. They made claims for a TV set, a refrigerator and a scooter. The husband even took respectables in the form of a Panchayat to the wife to persuade her to return to the matrimonial home but without success. The husband filed a petition u/s 9 of the Hindu Marriage Act on 4-5-1983 and an ex-parte decree was passed in his favour on November 5, 1983. The ex-parte decree was set aside on July 22, 1985. The application was contested and it resulted in a decree for restitution of conjugal rights on March 19, 1987. The wife challenged the order of the Matrimonial Court in appeal in this Court. The same was dismissed on February 3, 1988 and Letters Patent Appeal against the said order is pending. The wife moved an application u/s 125 of the Code of Criminal Procedure against the husband on April 18, 1984. The same was decided on June 15, 1987. Revision against the said order was dismissed on February 3, 1988. The order of the Revisional Authority was challenged in this Court in Crl. Misc. No. 2420-M of 1988 which is pending adjudication.

The Guardian Judge on appreciation of the evidence appointed the husband as the guardian of the minor and in his capacity as such he was held to be entitled to the custody of the minor. There is no denying the fact that in these proceedings (he principal consideration is the welfare of the minor. It is unfortunate that the parties to the litigation are husband and wife who are young. They have not been able to reconcile and despite an effort by the Bench hearing the Letters Patent Appeal, the wife did not return to the consortium of the husband. May be that unfortunate litigation between the parties may affect their progeny. The children born out of the wedlock are entitled to the affection of their parents and not of the one to the exclusion of the other. The husband and wife may be equally interested for the custody of the child. They may be in a position to bestow the affection on the child in abundance but when the parties have drifted apart and unable to resolve their dispute amicably, the only course left with the Court is to decide as to who out of the two has a better claim for the custody of the child. In other words the welfare of the child which is the paramount consideration is the only factor which has to be taken into consideration for appointment of a guardian out of the warring parties to the litigation.

In the instant case, as observed in the earlier part of the judgment, the son, Sonu, was born on May 19, 1980 and since then he has been living with the wife. I have seen the child and felt satisfied that he was being properly looked after by the mother. He was being educated at some school at Ludhiana. It is stated that the child is suffering from physical ailment and expert medical treatment is required. It may or may not be true nevertheless the facts remains that ever since the parties have drifted from each other and living apart, the minor was being looked after by the mother and at no point of time, the husband made no endeavour to meet the child and give him presents on his birth day or on any other festivals. The conduct of the father for not making any attempt to meet his son ever since he left Muktsar with his mother leaves an impression that the father became interested in the custody of the child only when the application was filed by the wife u/s 125 of the Code of Criminal Procedure for awarding maintenance for her and her minor child against the husband. The husband in order to defeat the wife''s claim for fixation of maintenance for her and her minor son appears to have filed this application. Application for maintenance was filed on April 18, 1984 and the present petition was moved on January 7, 1985. Under the circumstances, the welfare of the minor requires that he should remain with his mother. His separation from her at this stage will adversely affect his mental growth. The education facilities at Ludhiana are better than those at Muktsar. The husband is only a matriculate, the wife has studied upto B.A. Part I. Although she is not a graduate but she is in a better position to mentally equip her son for a better future than the husband.

For the reasons aforesaid, the appeal succeeds, the judgment of the Guardian Judge is set aside and the application filed by the husband for his appointment as guardian of the minor and for his custody is dismissed.