Shri Lal Mahto and Another vs Amar Singh Rathaur

Rekha Kumari, J.—This appeal has been filed against the order dated 26.9.2005 passed in Guardian and Wards Case No. 3/2001. The learned District Judge, Khagaria by the impugned order has allowed the above mentioned case filed by the respondent u/s 6 of the Hindu Minority and Guardianship Act, 1956 read with section 7 of the Guardians and Wards Act, 1890 for the custody of his minor son Bibhuti Kumar. It appears that a petition under the Hindu Minority and Guardianship Act as also under the Guardians and Wards Act was filed by Amar Singh Rathaur, the respondent in the present appeal, alleging therein that Bibhuti Kumar, his son aged about 7 years, at the time of filing of this petition, was born from his first wife. He had two more children from his first wife, namely, Shyam and Ganga. After the death of his wife he got remarried and a daughter was born from the second wife also, who is 1 1/2 years old. The eldest son of the petitioner later on died. The further case of the petitioner is that in order to give affection and nourishment to his second son he got his second wife operated so that no further issues could be begotten from his second wife. The minor Bibhuti Kumar was living with the petitioner with all happiness and the petitioner was contributing to his development and fairly looking after his health and was also provided good education. Some time before Holi festival the father-in-law of the petitioner came to his residence and expressed his desire to take Bibhuti Kumar to his Nanihal for some days. The petitioner in good faith allowed his son to go with him but he was not brought back after expiry of a fortnight''s time. The petitioner went to the house of his father-in-law but he became angry and refused to send the son with the petitioner. The petitioner continued to go to the O.P. and requesting for return of Bibhuti Kumar and lastly his requests were refused on 1.9.2001. He filed the above case for custody of his minor son. It was also stated in the petition that he had no other male issue and for the welfare and proper education of Bibhuti Kumar it is necessary to give Bibhuti Kumar in his custody.

The appellants Maternal grand-father and grand-mother appeared in the said case and filed a show cause. Their case as put forward in their show cause is that the mother of the minor son died on 24.2.1999 in her in-law''s house under mysterious circumstances and they suspected murder of their daughter by her husband but they could not take any action in this regard in view of the welfare of their grand children. The petitioner/respondent performed second marriage just after five months of the death of his first wife and within 1 1/2 months of his marriage his elder son Shyam also died under mysterious circumstances. The intention of the petitioner/respondent to eliminate the children born from his first wife one by one was clear. Hence, they felt it better to remove the children from the house of the petitioner. They went to the house of the petitioner to bring Bibhuti Kumar to their house and at that time they also expressed their desire to bring the granddaughter Ganga also with them but it was told to them that Ganga was sent to Bokaro to the house of brother-in-law of the petitioner. Hence, they came back with Bibhuti Kumar only. The further case of the appellants as stated in their show cause is that Bibhuti Kumar has been living with them peacefully with all honour and comfort from the day he was brought to their house and he was admitted in an English medium school, namely, Navjot Shiksha Niketan cum residential school of the locality. They also undertook to put the minor in better school for higher education if so required in future. It was denied that the petitioner/respondent visited their house for taking Bibhuti Kumar as stated by him. The case of the appellants, hence, is that under the above circumstances, it is not fit and proper to give custody of the child to his father.

The District Judge after considering the evidence adduced by both the parties came to the conclusion that the petitioner (respondent) being natural guardian, the father, was legally entitled and had preferential claim with respect to the custody of his minor son. He accordingly allowed the petition. Being aggrieved by the above order the appellants had preferred this appeal.

Learned Counsel for the appellants submitted that the petitioner/respondent may be a natural guardian under the law but paramount consideration is the welfare of the child. The child is getting good education and is being brought up properly in the custody of the appellants. The respondent has a second wife with a girl and the child cannot get love and affection from a step mother whereas he is getting love and affection in the custody of the appellants which is essential for the child.

Learned Counsel for the respondent, on the other hand, submitted that a father is more concern in the welfare of a child. Considering the welfare of the son, the respondent has also got second wife operated so that she may not have any other child. He is capable of providing good education and good future of the child, whereas grand-parents being old and infirm cannot look after the child. He, therefore, submitted that the learned District Judge was Justified in allowing the custody of his son to the respondent.

It is an admitted position that the respondent is the father of the child Bibhuti Kumar and as such, is a natural guardian. it is also admitted that the appellants are natural grand father and grand mother of ''he child and the child is living with them. There is difference between the parties as to the time since when the child is living with the appellants, as according to the appellants the boy was brought to their house in September, 1999 after the death of his elder brother Shyam Kumar on 16.8.1999, whereas according to the respondent the boy was taken away in 2001. But the evidence of O.P.W. 5, who is a teacher in Navjot Shiksha Niketan, is that the boy was taken in his school in January, 2000. He has also proved the entry (Ext. A) in the admission register. The boy (O.P.W. 3) has also stated that he is living with his maternal grand father and grand mother since 1999. Therefore, there is no doubt that the boy is living with the appellants since 16.8.1999. It is also admitted that the first wife i.e. the mother of the boy died and thereafter the appellant contracted second marriage from whom he was a daughter. It is also admitted that the first son of the respondent through first wife also died soon after his second marriage and that there is a daughter Ganga Kumari of the respondent at Bokaro where she is studying. The evidence of O.P.W. 1 appellant Sri Lal Mahto is that the wife and first son of the respondent died in mysterious circumstances. The evidence of A.W.5 the respondent Amar Singh Rathaur, on the other hand, is that both of them died a natural death and they were treated by the doctors but no prescription or any other document has been filed by him to substantiate this fact.

The evidence of A.W.8 is also clear that he is a teacher and it has also come in his evidence that his son and daughter were reading in Bhagalpur. The evidence of the boy also shows that he is a student of Class V and that the school where he reads upto Class VI but the evidence further is that his grand father has assured him that he would get him admitted in a boarding school thereafter. He has also stated that he does not want to live with his father on account of step mother in the house. His evidence also is that he and his maternal grand mother alone live in the house and his maternal grand father comes to the house on Saturday-Sunday. His evidence further is that before his maternal grand father had taken him with him, his eldest sister was taken away by his Fufi (sister of his father).

Then admittedly the respondent is a cultivator and though he has stated that he had gone to take back his son several times, the evidence of the appellants is that he had never insisted to take the boy. The evidence of the boy also shows that he had never met his father after the year 2000. So, when the child has been living with the appellants since 16.8.1999 and adjusted himself and at least after the year 2000 the respondent never met him and that the family of the appellants is an educated family inasmuch as O.P.W. 8 is a teacher and their children are also studying and the boy is also getting education and he wants to live with the appellants and is scared of his step mother who has also a daughter of her own and the daughter of the first wife is also not living with the respondent and it is a common experience that a motherless boy gets more love and affection from his maternal grand-parents than in the custody of his father having a second wife and a children from her, and that the love and affection is also very essential for proper growth of the child, I think that the welfare of the child would be better served if he remains in the custody of the appellants. Accordingly, this appeal is allowed and the impugned order is set aside. There would be no order as to costs.