Surjeet Kaur Alias Jeeto and Another vs Gurcharan Singh

Gokal Chand Mital, J.—Gurcharan Singh and Amarjit Kaur were married about a year before September, 1975. In September, 1975 a son was born out of the wed-lock Later on differences arose and they got separated by a decree of divorce. Both of them have re-married. From the second marriage Gurcharan Singh has three daughters, whereas Amarjit Kaur has a son. This appeal relates to the custody of the son who was born out of the first marriage and for facility of reference, in this judgment he would be described as (Minor).

On 7-11-1983 the father filed a petition for custody of the minor u/s 25 of the Gurdian and Wards Act, 1890 against the mother and maternal grand-mother of the minor on the plea that the mother of the minor has re-married and the minor is living with the maternal grand-mother and since maternal grand-mother has no means to bring up the child, he being the natural guardian and having means to bring up the child it was in the interest of the minor to give the custody of the child to him.

The petition was contested by the mother and the maternal grand-mother and pleaded that the child is studying in Sonu Model School, Badhani Kalan and was being looked after by both of them and the second husband of the mother and they have sufficient means to bring him up and that it was not in the interest of the minor to take him away from their custody. It was also pleaded that in the proceedings taken on behalf of the minor u/s 125 of the Criminal Procedure Code, for grant of maintenance to him, the father had pleaded that he had daily income of Rs. 3/- or Rs. 4/- and on that basis maintenance of Rs. 30/- per month was granted to the son, which too he has not paid so far, and the stand now taken in the petition that he has sufficient means to look after and bring up the child, besides being in-consistent is a false one.

On the contest of the parties the following issues were framed:-

In custody of which of the parties, the welfare of the minor consists? OP Parties.

Relief.

On the evidence led in the case, the Guardian Judge by order dated 4-12-1984 allowed the petition and granted the custody of the minor to the father. This is appeal by the mother and the grand-mother of the minor.

The father was asked to show his bonafide and his financial position to maintain and bring up the minors. He has voluntarily stated before me that he was prepared to pay Rs. 150/- per month for maintenance of the child. The child was living away from him since before 23-4 1979. Therefore, on 26th August, 1987 he was directed to deposit the amount of maintenance at the aforesaid rate with effect from 23-4-1979 when the divorce was granted, i.e. for 8 years and four months, and the case was adjourhed to 28th September, 1987. At the time of hearing, paternal grand-father of the minor was also present'' and be was more keen that his son should have a son and he also agreed that maintenance at the rate of Rs. 150/- per month would be proper, for the minor. The father and the paternal grand-fattier of the minor are tailor-masters in the village." It was also impressed on the paternal grand-father to deposit at least Rs. 15,000/- in Court to show their bona fide and also to show that they had the capacity to bring up and educate the child. Not a penny was deposited in this Court and ultimately the case was taken up for arguments.

After hearing the learned Counsel for the parties and on perusal of the record 1 am of the view that it is neither in the interest of the minor nor his welfare demands that his custody be given to the father Farther is a tailor-master in a village. The father was not interested in the custody of the minor, before the divorce was granted or till after divorce and came in December, 1983 to Court for custody after his second wife had given birth to, three daughters. He and his father admitted in Court before me that in case he had been blessed with a son, he would not have asked for custody of the minor and since be had no sou he has come to Court for custody. This clearly shows a tainted desire to have the custody of, the minor. The Court will not easily succumb to such a tainted, feeling of a father unless he makes out a case that the welfare of the child demands that he should stay with the father.

Keeping the aforesaid aspect of the case in view I have considered the evidence brought on record and the attending circumstances. The minor was also brought in Court and on being questioned he gave, his choice to remain with the mother and the maternal-grand-mother. He was not prepared to go with the father When he was asked, bis age was slightly over 12 year and the choice of such a grown up minor is one of the ingredients to be kept in view while deciding the matter of custody. When the father came to Court for custody, the child was 8 years and three months old and the fault for coming to Court late entirely rests on the father. Even if he was to say that law permits the mother to keep the child ordinarily for the first five years, if he was really genuine to have the custody of the minor he should have immediately come to Court after the expiry of five years, without waiting for the chance to have a male child from the second wife. I am not impressed with the statement of the father when he says that his income is Rs 1000/- or Rs. 1200/- per month, particularly because when he made statement in proceedings u/s 125 Cr. P. C he gave his daily income as Rs. 3/- or Rs. 4/-. In order to avoid responsibility to pay the maintenance for the minor if he could make a wrong statement about his income, in the absence of any reliable evidence, his statement made in Court, by which he gave disproportionately higher income, cannot be believed. This is another factor, which I am taking against the father. The third one is that he has not paid even the nominal maintenance of Rs. 30/- per month to the minor in spite of Court''s order. The fourth factor is that father is living in a village and one does not know whether there is proper school or not because there is, no reliable evidence in this behalf; and the fifth reason is that he has already three children and if minor is given to him, he will have four children and it may not be possible for him to bring them up properly. His statement that in case the custody of the minor is given to him he would undergo vasectomy operation, hardly a ground to grant the custody of the child; and the last reason is that in the petition for grant of custody of the; minor he pleaded about the mother getting re-married and a son being born from the second marriage but did not plead that from the second marriage three daughters were born to him This he had to admit in replication after mother placed these facts on record, in reply. This shows the effort of the father to withhold true facts from the Court.

For the reasons recorded above, this appeal is allowed and after setting aside the order of the trial Court the petition for custody filed by Gurcharan Singh is hereby dismissed. No costs.