Dev Darshan Sud, J.@mdashThis appeal has been preferred by the father of the child whose custody he seeks u/s 25 of the Guardians and Wards Act, 1890, (hereinafter referred to as the `Act''), against the judgment of the learned Senior Sub Judge, Mandi declining him custody.
2. It is undisputed that the parties to this appeal were married on 10.8.1990 and Prashant, whose custody is sought by the appellant, was born in December, 1991 and was aged about 61/2 years at the time when the petition was instituted.
3. It was pleaded by the appellant that the respondent left the matrimonial house without any reasonable excuse as the relationship between the parties became bitter and strained. The appellant pleaded that the respondent with some ulterior motive instituted a false petition u/s 97 of the Code of Criminal Procedure before the learned Additional Chief Judicial Magistrate, Sundernagar, in which search warrants were issued against the appellant. Pursuant to the orders dated 27.8.1998, passed in that petition, the custody of the child was handed over to the respondent-mother and the child was living with her w.e.f. 27.8.1998. Proceedings u/s 125 of the Code of Criminal Procedure were also instituted by the respondent against the appellant. It is also undisputed before me that the petition u/s 9 of the Hindu Marriage Act, 1955, instituted by the appellant herein was dismissed but was compromised in this Court in the year 1998.
4. The petition was opposed by the respondent-mother on the ground that she was forcibly thrown out of the house by the petitioner, appellant and his parents and was threatened with dire consequences if she dared to return. She pleaded that they even threatened her that they would kill her. She pleads that the appellant is a drunkard and was harassing the respondent and her parents with constant demands of dowry. In August, 1998 while she was ill, she was beaten mercilessly for 3/4 days and she was not given any medical aid and attention. In these circumstances she was forced to leave the house and part with the custody of the child who was illegally confined by the appellant and his family members which prompted her to initiate proceedings u/s 97 of the Code of Criminal Procedure for his recovery.
5. On the settled issues and more especially issue No. 1, which reads:
1. Whether petitioner is entitled to the custody of the minor ward Prashant? OPA.
which is the crux of the case, the learned Court below on the evidence on record held that the appellant was not a fit person to whom the custody of the child could be granted.
6. PW-2 Puran Singh, appellant,appeared as his own witness and testified that the respondent used to leave the matrimonial home without any justifiable cause. He states that a petition u/s 9 of the Hindu Marriage Act for restitution of conjugal rights had been filed by him which petition was ultimately compromised in this Court and the respondent lived with him between 1992 to 1998. He states that the respondent was not mentally fit in July, 1998 and he brought her to his house for treatment. She thereafter went to the house of her father while the child remained with him for the reason that the respondent was mentally unfit to look after the welfare of the child. He states that she is not in a fit mental and economic condition to maintain the child nor does she have the necessary means to support and bring up the child and that she has filed a suit in forma paupris claiming maintenance from him for herself and their child. He is the only fit person who can look after the welfare of the child in the best possible manner and to educate him in a good school.
7. PW-2, Shri Onkar Singh, uncle of the appellant states that after marriage of the parties to this appeal, there were disputes and differences between them and the matter was referred to the Panchayat which was ultimately settled by a compromise in this Court.
8. Respondent appeared as RW-1. She reiterated the fact of marriage and the birth of the child and that she is living with her son in her father''s house because of the ill treatment meted out to her by the appellant. She states that she is looking after and maintaining the child from the date he was born and at present he is studying in school and is performing well. He has been standing first in his class. She admits in crossexamination that she is not having sufficient funds to give education to her son in English medium School, to purchase fruits and milk etc. for her son, and that her father has been providing all these necessities and other comforts of life to the minor Prashant.
9. RW-2, Nirmal Singh, cousin brother of the respondent has stated in evidence that she was forcibly ousted from the matrimonial home and subjected to physical violence by the appellant and his family members.
10. RW-3, Kameshwar, father of the respondent, has corroborated her on the point of maltreatment meted out by the appellant. He says that he is and will bear all the expenditure of the minor child who is living happily with the respondent in his house.
11. On the conspectus of the entire evidence, the learned Court holds that the appellant is not a fit person to whom custody of the child could be granted, more especially since "the petitioner has also not disclosed his financial position whether he can maintain and educate his minor son in some hostel. The petitioner has also admitted that since his wife has left his company, he has seen his minor son Prashant only 3-4 times and he never tried to see him in the school or anywhere else. He has not maintained the minor son since then".
12. Learned Counsel appearing for the appellant submits that the evidence on the record is clear and cogent that the appellant is employed in Government service and is working as a Patwari and that perse is sufficient for him to get custody of the child since he would be having sufficient/ample funds to look after the child and his education. He urges that since the respondent has filed a suit in forma paupris for maintenance and is not possessed of sufficient funds to educate the minor son in an English medium School, goes against the very concept of the welfare of the child. In other words the respondent as mother cannot maintain the child and the minor''s interest can be best looked after by the father. He has taken me through the evidence on the record, certified copies of which have been filed. There is no documentary evidence.
13. I cannot persuade myself to accept the submissions made by the appellant. It is an admitted fact that the respondent is pursuing a suit in forma paupris for maintenance, but there is nothing on record which disentitles her to the custody of the child. The fact that she may not be able to educate the minor in an English medium School or is able to keep him in hostel is not enough to deprive her of his custody. The child will be aged about 15-16 years to day and is on the threshold of adulthood. He is not a chattel who can be handed over to the appellant according to his whim. What is important is that the allegations of cruelty and physical violence to which the respondent was subjected to, have not been disproved on the record. The testimony of RW-3 Shri Kameshwar, maternal grandfather of the minor child, has remained un-rebutted. He has stated that he is maintaining the child and his daughter and he is at all times willing to do so. It is not in the interest of the child to stay with his father who has perpetually subjected his mother to violence and physical abuse. More importantly, allegations of insanity have been made against the respondent without there being any medical evidence on the record. Not one scrap of paper has been produced to substantiate these allegations. The respondent was forced to initiate the proceedings u/s 97 of the Code of Criminal Procedure when she was thrown out of the house and the minor was kept illegally by the appellants.
Section 25 of the Act reads:
25. Title of guardian to custody of ward.-
(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.
(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by Section 100 of the Code of Criminal procedure, 1882 (10 of 1882).
(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.
14. It is important to note that it is welfare of the child which is to be considered. The custody cannot be handed over on the mere asking of a father or mother or any other person claiming it. The welfare of the child is paramount. (See:
15. The un-rebutted testimony on the record shows that the father did not care for the child and has visited him only on 2/3 occasions. In these circumstances, I find that there is no merit in this appeal. The appellant does not deserve the custody of the child. This appeal is accordingly dismissed. There shall be no order as to costs. They shall, however, not preclude the appellant from claiming visitation right in law if he so entitled to.
