Smt. Apsara Devi vs Ram Nath and Another

V.P. Gupta, J.—The dispute in this case is with respect to the custody of minor, Chander Nath, and the rival claimants are the father and the mother of the minor.

The brief facts are that Smt. Apsara Devi (Appellant), was married jointly to Ram Nath (Respondent No. 1) and Vidya Kishan (Respondent No. 2) according to the custom which was prevalent in the area to which the parties belong, and she was the common wife of both the Respondents. Chander Nath was born to Smt. Apsara Devi on 13th June, 1969, and, according to the admitted position, Ram Nath (Respondent No. 1) is the father of the minor.

Ram Nath (Respondent No. 1) afterwards married another wife and started living with her, with the result that Smt. Apsara Devi, Appellant, is now living with Vidya Kishan for the last about 7/8 years. The minor since then is also living with the Appellant and Vidya Kishan at the house of Vidya Kishan. It is also worth mentioning that Ram Nath is in Government service as a wireless operator.

As the minor was living with his mother (Appellant) and Vidya Kishan, therefore, an application claiming maintenance allowance was filed u/s 125 of the Code of Criminal Procedure against Ram Nath. It is admitted by both the parties that this application was allowed on 14th September, 1979, and a maintenance allowance at the rate of Rs. 100 per month was allowed to the minor from 8th May, 1979 onwards. A revision petition was filed by Ram Nath (Respondent No. 1) against this order but the same was also dismissed on 6th January, 1981.

Ram Nath (Respondent No. 1) filed an application u/s 25 of the Guardians and Wards Act for the custody of the minor on 14th September, 1979, in the Court of Senior Sub-Judge, Kinnaur, and claimed that he being the natural and legal guardian was entitled to have the custody of the minor. It was further alleged that he approached the Appellant and Respondent No. 2 for the custody of the minor but they refused to hand over the custody to him and, therefore, he had to file the present application.

This application was contested by Smt. Apsara Devi Appellant and Vidya Kishan (Respondent No. 2) and it was alleged that Ram Nath (Respondent No. 1) was not entitled to have the custody of the minor and that it was not in the welfare of the minor to give his custody to him. It was also alleged that Respondent No. 1 had married a second wife and that the application of Respondent No. 1 for custody of the minor was not bona fide.

On the pleadings of the parties the following issues were framed:

Whether the Petitioner is entitled for the custody of the child, Chander Nath. O.P.P.

Relief.

The Senior Sub Judge, Kinnaur, vide his order, dated 26th March, 1980, allowed the application of Respondent No. 1 and ordered that the custody of the minor, Chander Nath, be given to Respondent No. 1, who is the natural and legal guardian of the minor, The Appellant feeling aggrieved from this order has filed the present appeal.

I have heard Shri Prem Goel, Advocate, for the Appellant, and Shri A.C. Sood, Advocate, for Respondent No. 1.

The learned Counsel for the Appellant contended that the application for the custody of the minor filed by Respondent No. 1 is not bona fide and that he approached the Court only to avoid the payment of maintenance allowance which had been allowed to the minor on an application u/s 125 of the Code of Criminal Procedure. It was also contended that due to various facts it is not in the welfare of the minor to give his custody to Respondent No. 1.

The learned Counsel for Respondent No. 1 contended that Respondent No. 1 being the father of the minor is his legal and natural guardian and is prima facie entitled to the custody of the minor. It was also contended that the application is bona fide and that second marriage of the Respondent No. 1 is no ground to refuse him the custody of his minor son.

I have considered the contentions of the learned Counsel for the parties and have also gone through the records of the case.

There is no dispute about the following facts:

(a) Both the Respondents are brothers and were jointly married to Smt. Apsara Devi according to the custom and that Smt. Apsara Devi is their joint wife;

(b) For the last about 7 years Respondent No. 1 is living separately from his minor son and the Appellant;

(c) Appellant along with the minor is residing at the house of Respondent No. 2 for the last about seven years;

(d) Respondent No. 1 has married another wife and is living away from the village as he is employed as a wireless operator;

(e) An application u/s 125 of the Code of Criminal Procedure claiming maintenance for the minor was filed on 8th May, 1979, against Respondent No. 1 and a maintenance allowance at Rs. 100 per month was allowed to the minor from 8th May, 1979, onwards,-vide order, dated 14th September, 1979; and

(f) Present application was filed by Respondent No. 1 claiming custody of the minor on 14th September, 1979, i.e. the day upon which the application for maintenance was allowed.

In view of the aforesaid admitted facts this case has to be decided.

Respondent No. 1 (as P.W.I) has stated on 5th December, 1979, that the minor is living with the Appellant and Respondent No. 2, and that he is living separately from the Appellant and Respondent No. 2 for the last 5/6 years. He has further stated that proceedings u/s 125 of the Code of Criminal Procedure were started against him and that he has married another wife about four years back. Jogha Singh (PW2) Pradhan of Gram Panchayat has stated that Respondent No. 1 demanded the custody of the minor from Smt. Apsara Devi in April, 1979. Sainsa Dandrup (PW3), Panch of Gram Panchayat has stated that the minor, Chander Nath, is living with his mother and that Ram Nath demanded the custody of the minor in April, 1979. He has also stated that Chander Nath is not being kept as a servant by Smt. Apsara Devi but he is being treated like a son. Statement of the minor has been recorded and he has stated that he wants to live with his mother and is quite happy. He has also stated that he does not want to go to Ram Nath, Respondent No. 1. He further states that he is studying in school and is being given necessities of life by his mother, (Appellant).

During the pendency of this appeal, I had asked the parties to bring Chander Nath minor in Court and the minor appeared before me on 14th September, 1981. He stated that his age was 12 years and that he was studying in the third standard. He also expressed his desire to live with his mother, Smt. Apsara Devi, and refused to go with his father, Ram Nath (Respondent No. 1).

It is correct that u/s 6 of the Hindu Minority and Guardianship Act, 1956, father is the natural guardian of the minor and the right of the mother comes later on but for deciding the matter as to who is entitled to the custody of the minor the most important consideration is the welfare of the minor. If the welfare of the minor (which is the paramount consideration) is in keeping him with the mother in preference to the father, then the father will not be entitled to the custody of the minor.

In Rosy Jacob Vs. Jacob A. Chakramakkal, , while discussing the scope of Section 25 of the Guardians and Wards Act, their Lordships have observed in para 14 of the judgment:

The discretion vested in the Court is, as in the case with all judicial discretions, to be exercised judiciously in the background of all the relevant facts and circumstances.

It has also been observed:

The dominant consideration in making orders u/s 25 is the welfare of the minor children, and in considering this question due regard has of course to be paid to the right of the father to be the guardian and also to all relevant factors having a bearing on the minor''s welfare. There is a presumption that a minor''s parents would do their very best to promote their children''s welfare and, if necessary, would not grudge any sacrifice of their own personal interest and pleasure. This presumption arises because of natural, selfless affection normally expected from the parents for their children.

Thereafter it has been observed:

If the custody of the father cannot promote their welfare equally or better than the custody of the mother, then, he cannot claim indefeasible right to their custody u/s 25 merely because there is no defect in his personal character and he has attachment for his children.

It is further observed:

The father''s fitness from the point of view just mentioned cannot override considerations of the welfare of the minor children.

Similarly, in Gokal Nath Vs. Smt. Krishna Devi, Hon''ble R.S. Pathak, C.J. (as he then was) after taking into consideration the welfare of the child allowed the mother to have the custody of the minor child in preference to the father.

In the present case, according to the facts and circumstances, which have been stated earlier, I am also of the view that it is not in the welfare of the minor to give his custody to Respondent No. 1. The minor, who appeared before me, appears to be an intelligent child and he expressed his desire to live with his mother (Appellant). The Respondent No. 1 (father) never cared for maintenance of the child for the last about seven years, meaning thereby that he took no interest in the welfare of his son or in his education, etc. The minor had all along been living with the Appellant at the house of Respondent No. 2, and according to the evidence on record he is studying in a school and is being provided with all the necessities of life by the Appellant. The present application for the custody of the minor was filed by Respondent No. 1 on 14th September, 1979, i.e., on the same day when an order with respect to the maintenance allowance was passed against him. Thus this application of Respondent No. 1 for custody cannot be said to be bona fide. Respondent No. 1 is in service and has married another wife. He will not be having that much love and affection for the minor especially in the circumstances when he never cared to look after him within the period of last about seven years. As against all this, the Appellant being the mother has all love and affection for the minor and is properly looking after minor''s welfare. The learned Senior Sub-Judge has not taken into consideration the different facts and circumstances of the case and has wrongly allowed the application of Respondent No. 1, which should have been dismissed.

In view of the above discussion, this appeal succeeds and the same is allowed. The application of Respondent No. 1 u/s 25 of the Guardians and Wards Act is dismissed.

The parties are left to bear their own costs.