Shri Sehjoo and Another vs Shri Bhikhu

D.B. Lal, J.—This is an appeal against the decision of the learned Senior Sub-Judge, Mahasu district in a petition u/s 25 of the Guardians and Wards Act, 1890, wherein depriving Sehjoo and Reshmoo of their right of custody for a minor namely, Nokh Ram, custody of the said child has been given to the Respondent Bhikhu. The facts of the case are, that Bhikhu Respondent who happens to be the father of the child moved the petition u/s 25 before the learned Senior Sub-Judge and the usual allegations were that his minor child Nokh Ram has been removed from his custody by his maternal grand parents Sehjoo and Reshmoo who are detaining him and as such the custody of the child should be given back to him. The Petitioner-Respondent contended that it was in the welfare of the minor that he should be returned to his custody. It is admitted on all hands that the Petitioner-Respondent Bhikhu keeps a second wife who according to him is childless. The mother of Nokh Ram, namely, Santi was the second wife of Bhikhu. She was not being treated well by the first wife of Bhikhu with the result that she fell sick and was brought to live with her parents who are the present Appellants. Nokh Ram was only ten months when he went with his ailing mother to reside with his maternal grand parents. Having stayed with her parents for about five years Shrimati Santi died as she could not recover from her sickness. The child Nokh Ram remained with the Appellants and at present he is admitted in a school and is taking his education while residing with them. Bhikhu Respondent, for some reason wanted to take back the custody of the child and he referred his dispute before the Panchayat. A compromise was, however, effected and the child was agreed to be sent back to the Respondent although at the same time it was accepted that he could as well stay with the maternal grand parents. According to the allegations made by the Appellants, the maternal grand mother when she arrived at the house of the Petitioner-Respondent some quarrel broke out and both the maternal grand mother and the child were beaten by Bhikhu Respondent. Thereafter the maternal grand mother returned back. The child was also sent back subsequently. Since then he is living with the Appellants. A police report was also instituted by the Petitioner-Respondent and some compromise again took place between the parties. It was agreed that Bhikhu Petitioner could take the child with him for a short period whenever he liked to do so. Since the Petitioner never cared to take back the child, he was not sent back and as stated before he is now constantly living with the Appellants and is being educated at their place. Thereafter Bhikhu filed the petition u/s 25 and after considering the case on merit the learned Senior Sub-Judge was of the opinion that the minor child should return back to his father, namely, Bhikhu. As such the petition was allowed and the order for the return of custody of the child was made.

The maternal grand parents have felt aggrieved of the decision and have filed this appeal. They have strenuously contended that the welfare of the child can only be sustained if he is permitted to stay with them until he is of matured age. They have of course no objection if after attaining majority he goes back to his father and starts living there. For a decision of petition u/s 25 of the Guardians and Wards Act, 1890, the welfare of the child is the paramount consideration which the Court has to take before ordering custody of the child in favour of any party to the proceeding. For this several considerations may prevail upon the Court to arrive at a correct decision. It is also evident that matters to be considered by the Court in appointing guardian as enumerated in Section 17 of the Act would also be material in this connection. The character and capacity of the person who proposes to take the custody of the child would nonetheless be a relevant factor and so would be the existing and previous relations of the Petitioner with the minor or his property. In the instant case certain facts seem to have been missed by the learned trial Judge. The minor Nokh Ram is living with the Appellants from the age of ten months. He is now near about six years and is taking education in a school. The Appellants could not be stated to be ill-placed in finances so that they cannot look after the child in a proper manner. It was admitted before the learned trial Judge by the Petitioner Bhikhu that the child is considering the maternal grand mother as his mother and is receiving filial affection from her. He also affirmed that the Appellants really love the child. Despite all this he wanted his custody, being his father and according to him entitled to custody being his natural guardian. Hira Nand P.W. 2 and Devi Chand P.W. 3 could not deny that the Appellants are very well maintaining the child. The Appellant Sehjoo and his witnesses of course stated that the child is being brought up in the best possible manner. According to Shankar R.W. 2 who is a Panch, the child was sent back by the Petitioner-Respondent because he was attached with the maternal grand mother as it had become unsafe for his health to keep him at his father''s place. Shaunku R.W. 3 stated that it would be dangerous to the health of the child to permit him to stay with the father because of his deep attachment with his maternal grand mother. Similarly stated Bhup Ram R.W. 4 as according to him the child treats the maternal grand mother as his true mother. It is, therefore, clear that it would be conducive to the welfare of the child if he is permitted to live with the Appellants. He is being properly and very well looked after and is at present studying in a school.

Regarding the previous relations of the Respondent Bhikhu with the child and his mother, several facts were made out which proved that the fault lay with Bhikhu and that is why Shrimati Santi had to return back to her parents. It is manifest he was already married and since he had no child, Santi was brought as his second wife. According to the learned trial Judge in a case of such relationship the previous wife being childless naturally starts loving the child born of the second wife. In my opinion such an inference cannot be drawn in a sweeping manner. At any rate in the present case there is no evidence to indicate that any affection had developed for the child in the first wife of Bhikhu. On the other hand the evidence is that the relations had become strained because otherwise there was no point for Shrimati Santi to have gone back to her parents for treatment which was rather a prolonged one. It is also clear from the evidence that the husband never gave medical treatment to the wife. He might be visiting her once or twice but that was not enough. It is stated by the learned trial Judge that once he had taken the wife to Snowdon Hospital for treatment. Sehjoo (R. W. 1) stated that upon their insistence Bhikhu when he came to meet them was asked to take her to the hospital along with her mother. Later on she was again sent back to the Appellants for no satisfactory reason. At any rate nothing was spent by the husband in the treatment. Even after the death of Shrimati Santi her funeral rites were performed by Sehjoo and his wife. This circumstance has not been taken notice of by the trial Judge. It appears that there was no love lost between Santi and her husband. She was given for good by Bhikhu and the child who was then only ten months had to stay with the maternal grandparents.

Apart from this there is a previous history of dispute before the Panchayat, and also before the police. According to Sehjoo the child was brought to live with Bhikhu but a MAAR PEET took place. The maternal grandmother had to return back. Subsequently Bhikhu sent back the child also. The reason was that the child was all along weeping and would not stay with the father. The learned trial Judge has disbelieved the MAAR PEET because no police report was instituted but in my opinion that would not be a sufficient reason for discarding the statement of Sehjoo and his witnesses. In this manner the character of Bhikhu and the treatment he gave to Santi are also pointer to an inference that it would not be in the interest of the minor if he stays at the house of Bhikhu.

The consideration that the situation of school comparatively is nearer to the house of Bhikhu as compared to the school in which the boy is reading which is at a distance of two and a half furlongs from the house of Sehjoo, is by no means sufficient to conclude that Bhikhu should be the proper person with whom the child should reside. As regards the lands and other sources of income, the Appellants are equally placed as compared to the Respondent and they can and have been looking after the child. As to the other family members depending upon the Appellants, there is no evidence that such family members are a burden upon the family or that they are not earning themselves so that they are given any assistance financially by the Appellant. Therefore, the mere fact that Bhikhu and his wife are the only two members of his family is again not a circumstance in favour of Bhikhu.

It appears that the learned trial Judge was influenced by the circumstance that Bhikhu was a natural guardian and as such he was to be preferred while giving custody of the child. For this there is ample authority to take a contrary view. In Captain Rattan Amol Singh Vs. Smt. Kamaljit Kaur, , a Division Bench held that the benefit of the minor is the dominant and paramount consideration in petition u/s 25 of the Guardians and Wards Act. The father''s right to the custody of the minor is not absolute; nor is it indefeasible in law; it is circumscribed by the considerations of the benefit and welfare of the minor. The same view has been upheld in two other cases: Appu Menon v. Janaki Amma AIR 1957 TC 39 and Samuel Stephen Richard v. Stella Richard AIR 1955 Mad 451, Therefore, the fact that the father is a natural guardian would not ipso facto entitle him to the custody of the child. The Respondent relied upon (Kode) Atchayya v. Kasraju Narahari AIR 1929 Mad 81, which according to him is a case based on similar facts. The custody of the child was given to the father because he was considered preferential guardian for the child. The learned Judges were of the opinion that the child being of tender age could not be placed in a position so as to estrange his relationship with his natural father. That was one of the considerations why the custody of the child was given to the father. Besides that the learned Judges were of the opinion that the father being the natural guardian should ordinarily be preferred as compared to others. With respects to the learned Judges I would hold in the present case that the facts made out are different and the very criterion laid down by them justifies for an order in this case to be made against the father. As I have stated before the welfare of the minor is of paramount importance. It is in his welfare if the child stays with the Appellants and not with the Respondent father. Despite Madras authority 1929, a different view was taken in Samuel Stephen Richard v. Stella Richard (Supra). In another Madras case: Gangarapu Chinna Sambayya v. Polepalli Rudrappa and Ors. AIR 1935 Mad 568, the bad treatment given by the father to his wife who was the mother of the child was considered a factor disqualifying him from being given custody of the child. He was not considered a desirable person on that ground to have the custody of the child. As already stated there is dependable evidence of bad treatment in this case.

In this view of the matter I have every reason to take a different view and must hold that it would be for the welfare of the ward if his custody is retained with the Appellants rather than returned to the Respondent father. The appeal is, therefore, allowed and the decision of the learned Senior Sub-Judge is set aside. The petition u/s 25 of the Guardians and Wards Act, 1890, filed by Bhikhu shall stand dismissed with costs throughout to the Appellants.