Poonam Chand vs Smt. Manju

A.S. Godara, J.—This Civil Revision Petition has been filed u/s 115, C.P.C. against the order dated 12.8.1997 passed by the learned Addl. District judge No. 2, Bikaner in Civil Misc. Case No. 54/97 thereby allowing application for interim custody of Hindu minor son Mahesh to his mother-non-petitioner.

Briefly stated, the facts giving rise to the petition are as follows:

Applicant-non-petitioner filed an application u/s 25 of the Guardians and Wards Act, 1890 (for short the Act of 1890) along with another Section 12(1) of the same in the court of District Judge, Bikaner who, in turn, transferred the same to the court of Addl. District Judge, Bikaner for disposal. The applicant''s case is that, admittedly, she is mother of her minor son Mahesh who was born on 1.11.1993 after his legal marriage with Lekh Ram on 5.5.1990 at Bikaner. Lekh Ram suffered from cancerous diseased and he expired on 28.4.1996. The petitioners, who are non-applicants in the main application, are great-uncle great-aunt and grand mother of late Lekh Ram. Lekh Ram, after his marriage with the applicant, lived with his brother Poonam Chand and his wife Smt. Sita Devi (petitioners) in the same house. After death of Lekh Ram, for about six months, the applicant along with her minor son lived jointly with the family of petitioner Pooam Chand. On 3.11.1996, the applicant was driven out of the house by Poonam Chand and, at the same time, she was deprived of the custody of her minor son Mahesh who was kept in their custody by Poonam Chand and his wife as well as Smt. Mohini Devi who is mother of Poonam Chand. Therefore, the applicant''s further case is that she is the real mother of Hindu minor child Mahesh and she is also the natural guardian of her son and since she has not contacted second marriage and has been forced to live along with her parents but she has been illegally deprived of custody of her minor son. Smt. Mohini Devi is aged about 65 to 70 years and being an old and infirm lady, she also suffers from the ailment of High Blood-pressure while Poonam Chand is a drunkard and often remained out of his house at the site of his work and returns home late in the night. Poonam Chand and his wife Smt. Sita Devi are already having three daughters and two sons and so they have their own five minor children to bring up and caress. As a result, Mahesh remained almost neglected and uncared for who wonders in the streets and is also not properly fed and his welfare is completely neglected.

On 3.11.1996, when the applicant along with brothers and father went to the house of the Petitioners to see Mahesh, she was not allowed to see her son and hence she has prayed for restoration of custody of her minor child Mahesh and, during the pendency of the application, she also prayed for interim custody of her child.

The non-applicant-petitioners disputed all these averments except that the marriage of the applicant with Lekh Ram and birth of Mahesh on 8.11.1993 out of their wedlock and lastly, the death of Lekh Ram on 28.4.1996 having taken place. However, they have averred that Mahesh was never neglected or allowed to remain uncared for and instead they have maintained that he was being brought-up and being looked after along with the children of Poonam Chand and that all the petitioners are equally devoted to the welfare of Mahesh while the applicant, mother of Mahesh, being young, is likely to remarry any time and, consequently, as per the last wish of Lekh Ram himself, he had entrusted custody of Mahesh to Poonam Chand and his wife since his wife Smt. Manju did not take proper care and look after the welfare of Lekh Ram himself during the period of his ailment and so also that of his minor child Mahesh. Therefore, the petitioners have forcefully contested the claim of the applicant-non-petitioner about transfer/ restoration of the custody of Mahesh.

The learned trial Judge, after hearing both the sides, vide his impugned order, after production of the minor child in the court and his observations for about two hours, lastly, holding that the applicant-mother was the natural guardian of her minor son and, besides, he was also below 5 years of age and, consequently, there were no factors or circumstances which disqualified or disabled the applicant from seeking restoration of custody of her minor child and accordingly, holding that the welfare of the child Mahesh was safe and secure in the hands and custody of his mother and, accordingly, it was ordered that Mahesh be produced before the court on 13.8.1997 at 3.00 P.M. so that his custody could be transferred to his mother and, being aggrieved, this revision petition has been preferred.

With the consent of the parties, this petition has been heard at length on merit and the legality as well as jurisdictional error, if any has also been considered.

The learned Counsel for the petitioners, while not disputing the factual position narrated hereinbefore, as observed by the learned trial court, submitted that on production of Mahesh in the court, he was allowed to remain with his mother Smt. Manju for about 45 minutes in the chamber of the trial Judge and, on interrogation by the trial Judge, he did not express any inclination or willingness for going with his mother and, therefore, the conduct of the minor child himself implied that he did not want to go with his mother. Therefore, when Mahesh went to his mother and remained with her for 45 minutes while being called by the trial Judge and, after the proceedings were concluded, merely because Mahesh did not weep or any how gave no signs of intelligent preference for going to his mother and, therefore, specially when a sum of Rs. 5000/- has already been deposited in the account of Mahesh by the petitioners, they were also simultaneously, looked after the welfare of Mahesh and that he was presently got admitted in a school for his education and that he was being provided with proper food, clothing and educational facilities and so his welfare was not at all being neglected by the petitioners and, in view of these circumstances, on the face of impending risk of Smt. Manju''s opting for second marriage at any time, in case the custody of Mahesh is taken from the petitioners and instead the same is passed over to his mother, the welfare and future of the minor child shall be spoiled whereas the petitioners are very concerned about the welfare and future of Mahesh and they wanted to fulfill the last wish of late Lekh Ram who had delivered and entrusted the custody of his minor child to the petitioners thereby executing a last wish in the form of a testamentary document. Therefore, the trial court, while considering that since the applicant-mother could bestow more love and affection towards her only minor child, in the aforesaid circumstances, specially when the possibility of undergoing second marriage by the applicant cannot be excluded and she also left the custody of her child and instead she went to live with her maternal relations, in her absence as well as during the life time of Lekh Ram the child was being looked after by the petitioners, committed serious illegality as well as material irregularity in exercise of its jurisdiction while passing the impugned order which is liable to be set aside.''

However, the learned Counsel for the non-petitioner vehemently opposed this petition and, while supporting the legality and propriety of the impugned order, further submitted that the mother being the natural guardian, after death of the father, she was also entitled to custody of her minor son, who was below four years of age, on the face of the facts and circumstances that Poonam Chand is already having five children of his own to rear and look after while his mother is an old and infirm lady. Though, as is the admission of Poonam Chand before this Court as well, there was also ancestral Hindu Undivided Family property in which the late Lekh Ram had also a share and, consequently, on the death of Lekh Ram, Mahesh as well as his widowed mother were entitled to the share of late Lekh Ram but the share of the minor was never ear-marked or allotted to be looked after by Mahesh''s natural guardian. Besides, the particulars of the property and the share of late Lekh Ram inherited by his wife and son has also not been unfolded before the Court and, therefore, though the petitioners have opted to keep Mahesh in their custody but, in the aforesaid circumstances, it cannot be denied that they had some ulterior consideration to have driven out Smt. Manju from her in-laws house and, at the same time, while depriving her of rightful custody and guardianship of her own minor child of tender age, who could be deprived of their rightful claim on the Hindu Undivided Family property falling to the share of late Lekh Ram. In these circumstances, when Smt. Manju has not as yet undergone a second marriage and she is still living her widowed life at her maternal house and she is claiming custody of her minor child and has also volunteered to maintain and look after the complete welfare of her child, all these circumstances, prove that the mother, as a natural guardian and the one most concerned with the welfare of her minor child is preferentially entitled to the custody of her minor child and, therefore, since the application pending before the trial court is likely to take long time in its disposal and therefore, the learned trial Judge did not fall into any error or illegality to have ordered for transfer of custody of Mahesh to his mother.

So far as the legality, propriety and jurisdictional error, if any, in the impugned order is concerned indisputably, non-petitioner Smt. Manju is the mother of Mahesh who has not as yet completed four years of age who was born on 8.11.1993 only. Smt. Manju, after the death of her husband, resided for about six months with the family of Poonam Chand. Naturally, her minor child Mahesh also remained in her custody. Poonam Chand and his wife are having already five minor children of theirs'' own. Smt. Mohini Devi mother of petitioner is an old and infirm lady. There is yet another living elder brother of Poonam Chand and he is also having his own children. The share of the property of Mahesh through his deceased father Lekh Ram has not been ear-marked nor notified to the court. On the contrary, Smt. Manju, though a young widowed lady, even after death of her husband Lekh Ram on 28.4.1996, has not contacted any second marriage and, instead, after being driven out of the inlaws'' house, she is living in her maternal house. She has not incurred any dis-qualification or disability to opt for custody of her minor son. Smt. Manju, after the death of her husband Lekh Ram, who is the natural guardian as per the provisions of Section 6(a) of the Minority and Guardianship Act, 1956 (for short ''the Act, 1956'') and, besides, since her son Mahesh has not as yet completed age of 5 years and, in the aforesaid circumstances, she is, as of right, also entitled to the custody of her minor son in preference to all other relations from Paternal as well as maternal side of the minor son.

As regards the alleged will dated 12.3.1993 executed by the deceased Lekh Ram thereby handing over custody of his minor son Mahesh, after his death, to the petitioners, as per the provisions of Section 19(2) of the Act, 1956, since Lekh Ram, father of the child, predeceased the mother of Mahesh and, therefore, during the life time of Smt. Manju, the petitioners cannot take any advantage of this document to the detriment of welfare of the minor child.

Section 13 of the Act, 1956 also provides that any appointment or declaration of any person as guardian of a Hindu minor by the court, the welfare of the minor shall be the paramount consideration and, accordingly, in regard to the custody of the minor, the court is bound to take into account the welfare of the minor.

Section 17 of the Act, 1890 inter alia provides that in appointing or declaring the guardian of a minor, the Court shall subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. Sub-section (2) of the same further says that in considering what will be for the welfare of the minor, the court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. Sub-section (3) of it provides that if the minor is old enough to form an intelligent preference, the court may consider that preference.

As observed by the Hon''ble Supreme Court in Rosy Jacob Vs. Jacob A. Chakramakkal, the golden principle eloquent as the luminous pole-star in the entire gamut of this enactment in the matter of any adjudication relating to guardianship of a ward is the rule that the welfare of the children is the paramount consideration, not the rights of the parents.

In view of these circumstances, the mother applicant, being Hindu, is seeking custody of her own minor son who has not as yet completed even four years of age and she suffers from no disability or disqualification to hold custody of her minor child and to look after his welfare. Besides, after death of her husband, she is the natural guardian of her minor son and she has as yet remained unmarried and she has no work or business to look after except to devote and commit to the sole welfare of her child.

In these circumstances, when Smt. Manju, as also admitted by the petitioner Poonam Chand before this Court, is non-matric and being sufficiently educated can also look after the education of her only minor child better devoting as much time as necessary and, on the hand, the petitioner Ponnam Chand caries on his private business where at he has to be busy through-out the day leaving no time to attend to the necessities and welfare of minor Mahesh specially when he is having as many as five minor children of his own and, therefore, even if preferential claim of Smt. Sita Devi great-mother of Mahesh as well as Smt. Manju, real mother of minor Mahesh, in the aforesaid circumstances, is weighed the latter can be more and exclusively devoted and more concerned with the welfare of Mahesh in comparison to that of Smt. Sita Devi who has also, at the same time, to look after the welfare of five minor children in addition to her own husband as well.

In these circumstances, since Mahesh who has not as yet completed four years of his age and it further does not show that he has formed enough intelligent preference for either party specially when he is forced to live in the company of the petitioners to the exclusion of his mother and he also did not act in any manner which could show that he was not inclined to go and live with his mother specially when he was brought to the court by the petitioners and, as is most natural, he must have been tutored thereby being told that it was never in his interest to go to his mother and instead his future was safe only in the hands of the petitioners and, even then, without any sign of unhappiness or discomfort he remained with his mother for about 45 minutes before the trial court and. therefore, as regards, if any, intelligible preference to be inferred out of his conduct, the same also does not help in reaching the conclusion that Mahesh is more comfortable and happy in the company of the petitioners and that he is not inclined or willing to be given in custody to his mother and that his welfare is also safer in the hands of the petitioners only and not in the hands of his own mother.

In case the minor is not taken to have expressed or being intelligent enough to express an intelligent preference, the court has to decide in favour of his mother who is entitled to the custody of her minor son under the provisions of Section 6(a) of the Act, 1956 being the natural guardian of the minor. A presumption goes in favour of natural guardian as opposed to the claim of the petitioners who are not considered to be natural guardian in law and unless there is contrary evidence to warrant the conclusion that natural guardian is not a fit person to be the guardian of the child or for other reasons it will not be in the interest of child''s welfare to entrust his custody to the natural guardian, the court would ordinarily be inclined to accept the claim of the mother in preference to the claim of the petitioners, as is the case in hand.

Accordingly, in the aforesaid circumstances, considering the welfare of the minor child and having regard to the age, sex, religion of the minor, the character and capacity of the non-petitioner mother and her closest relationship as that of being mother of the minor child and so also the wishes of the child not running contrary to the preference for his mother and the facts and circumstances of the family members of the petitioners, the learned trial Judge did not commit any illegality specially in view of the provisions of Section 12 of the Act, 1890 thereby production of the child before the court and to order for the temporary custody and protection of minor Mahesh and, accordingly, in the aforesaid circumstances, the impugned order passed by the learned trial Judge suffers from no illegality or any material irregularity in exercise of jurisdiction occasioning a failure of justice in case the impugned order is allowed to stand. Instead, the impugned order only furthers the ends of justice and in all probabilities, it will advance the cause of welfare of the minor child in case his interim custody is passed over to his natural guardian who is none but his mother.

Resultantly, no contention as raised in support of this petition, is sustainable so as to disagree with the impugned finding arrived at by the trial court enabling it to pass the impugned order and, therefore, this petition is wholly devoid of any merit.

On the basis of above discussion, this petition along with the connected stay petition, is hereby dismissed and the impugned order is hereby affirmed with a direction to the trial court that the impugned order be complied with at the earliest without loss of time. However, it is further observed that in case Smt. Manju contacts second marriage with any person during the minority of her child, in case the main application u/s 25 of the Act, 1890 is not finally disposed of by then, the non-petitioner Smt. Manju, for the present purpose, shall stand disqualified from retaining custody of her minor child in absence of any further specific order by competent court.

No order as to costs.

This Revision Petition is disposed of accordingly.