1. This is a petitioner's appeal against an order passed by the Guardianship Judge, Jullundur, dated the 7th of July, 1950, dismissing the petitioner's application under Section 25 of the Guardians and Wards Act for the custody of his daughter as against the petitioner's wife Indira and his father-in-law Bakhshish Singh.
2. Manjit Singh is a son of Kanwar Jasjit Singh and is connected with the ruling family of what used to be Kapurthala State. On the 9th of February, 1943, he married Indira, who is the daughter of Sardar Bakhshish Singh, the proprietor of Sant Flour Mills, Jullundur. She was at that time a Graduate in Science. On the 19th of November, 1943, a daughter named Manjo was born. It appears that soon after the marriage differences arose between the husband and the wife and the husband started ill-treating his wife and even assaulted her by giving her severe beating. According to the wife, apart from the fact that husband was a hot tempered and violent person, he was making demands of money from the wife's parents and he ill-treated her in order to force the parents of the wife to give him large sums of money.
3. The wife alleged that she was turned out by her husband in April, 1944, but what actually happened was that she was beaten by her husband and had to be taken away to her parents' house along with the daughter, Manjo. On the 8th August, 1945, Manjit Singh sent a telegram from Amritsar to his wife saying: 'Getting married good-bye for ever. Manjit' In January, 1946, the petitioner married again, a daughter of one Ram Narain. The wife Indira and the daughter stayed on with the father, Bakhshish Singh.
4. On the 10th of August, 1946, the wife gave a notice to the husband demanding maintenance for herself and her child. In reply the husband on the 17th of August, 1946, denied that he deserted the wife or the little baby and said: 'He is even now ready to receive her and the little baby and accord to them usual family treatment'; and he refused to give her any maintenance. As a justification for his second marriage he mentioned that the wife had refused to perform connubial duties.
5. On the 13th of December, 1948, the petitioner made an application under Section 25 of the Guardians and Wards Act praying for the custody of the child, Manjo, to be given to him. He alleged that (1) the mother had become immoraj, but he did not state when and how. (2) the child was not with the mother but with the maternal grandfather and (3)being the father and the natural guardian ofthe infant he had the preferential right to hercustody. The respondents to this applicationwere the wife, Indira, and her father Bakhshish Singh. In reply it was pleaded that thepetition was not bona fide, that the petitionerwas not fit to have the custody of the childas he was a person of violent temper had ill-treated the wife and tortured her and that hehad married again and it was not for the welfare of the infant that she. be put in the custody of its father. It was also pleaded thatthe object was 'to black-mail the respondentso as to extort money from the father-in-law,Bakhshish Singh.'
6. In a well considered judgment the trial Court held that the wife was ill-treated and therefore she had to leave the husband's house, that the petitioner wanted money from the father-in-law as his own father had left him debts to the extent of rupees sixty to seventy thousand and the application had been brought in order to extort money, that the petitioner was a person of violent temper and drank very heavily and had been guilty of misbehaviour, that the wife was not a girl of immoral character and the imputations made against her were false, that the petitioner therefore was unfit to look after the daughter and also because his financial position was not upto very much and that it was not for the welfare of the minor that she be removed from the custody of her mother and maternal grand-father and be handed over to the petitioner. The petitioner has come up in appeal to this Court.
7. The appellant has first attacked the findings given by the learned Judge. He submits that the ill-treatment and cruelty to the wife has not been proved. I am unable to agree. (After discussing some of the evidence the judgment proceeds) Then there is the evidence of Mr. Sundar Das Midha who was at that time the Deputy Commissioner of Jullundur. He has deposed about the conduct of the petitioner in regard to the complaint made by Dr. Suraj Kant. He sent his S. P. to make an enquiry and it was reported to him by the Superintendent of Police that the petitioner 'had been misbehaving not only towards the son of Suraj Kant but also towards his daughter'. The Superintendent of Police also reported to him that the petitioner was an undesirable person.
8. It was submitted that the evidence oj Mr. Midha is not admissible in evidence. The question is not as was said in 'McSweenry v. Margaret Arbuthnot', 35 Cal W N 158 at p. 159, whether the appellant is guilty of the charges which were made against him. The fact that these .were the charges against him are enough to show his character. After going through this evidence I am of the opinion that the finding of the learned Judge as to the character of the petitioner was fully justified in that he drank heavily, he was a man of bad and violent temper and he did not hesitate to threaten people with shooting if it came to that. There is evidence to show that he is a kleptomaniac but the evidence on this point is not conclusive.
9. The learned Advocate for the appellant next contended that the finding that the petition is not bona fide is not justified. . (After considering the evidence his Lordship confirmed the finding that the application made by the petitioner was not bona fide and proceeded : )
10. In my opinion, it is not to the welfare of the infant that she be handed over to the father. In the first place he is a man of violent and uncontrollable temper. The evidence in regard to him does not speak very well of him. There is sufficient evidence in regard to his misbehaviour. He has treated the mother of the infant with cruelty. From the date of her 'birth right up to the date of the application the petitioner took no interest in her. He never sent any money for her maintenance. He has never tried to see her or take any interest in her education or upbringing. When the notice was first given in August, 1946, for maintenance by Indira, he expressed the 'desire to get back the child, but he did not do anything for another two years in regard to getting Her back. On the other hand, there is evidence to show that he was demanding hush-money in order not to demand the custody of the child. He has got another wife and two children. According to his own showing his income is about Rs. 500/-. How he proposes to spend 'Rs. 300/- to Rs. 450/-' out of this on the education of this child has not been explained to me. At the present moment the child is very well looked after and she is being properly educated. In my opinion, it is not a fit case in which the father could or. should be given the custody of the child.
11. It is submitted by counsel for the appellant that the father has an inalienable right to the custody of the infant as he is the natural guardian. As an abstract proposition of law, it may be correct, but every case has to be considered in the light of its own facts. The real test in all cases is the welfare of the minor. In 'G.C. Sambayya v. P. Rudrappa', AIR (22) 1935 Mad 568, it was held that the right of the father can be defeated if the Court is of the opinion that it is in the interest of the minor that he should remain in the custody of a person other than the father. The question in every case is the infant's welfare and also the 'bona fide' nature of the application of the father and if it is found that it is not 'bona fide' it will be a good reason for not disturbing the custody of the minor. In this case the ill-treatment of the minor's mother was taken into consideration and it was held that the father was not a proper person to have the custody of the child.
12. In 'Muthuswami Chettiar v. Chinna Muthuswami Moopanar', AIR (22) 1935 Mad 195, it was held that each case must depend on its own circumstances, but the right of the father is liable to be defeated where it is shown that it is in the interest of the minor and for his welfare that it should remain where it is; and if it is proved that the father has shown lack of interest in the minor, it is a circumstance of great importance and will- bear upon the 'bona fides' of the petition of the father.
13. In another case by the same learned Judges, 'Ponniah Asarl v. Suppiah Asari', AIR (22) 1935 Mad 363, it was held that the welfare of the minor is to be considered in an application by the father for the custody of the child and past indifference and neglect or tacit consent in the infant being brought up by other relatives is a relevant consideration.
14. In 'Mt. Prem Kaur v. Banarsi Das', 15 Lah 63p, it was held by Bhide, J., that the sole criterion for decision in an application under Section 25 is the welfare of the minor.
15. A similar rule was laid down in 'Abubacker v. Mariyumma', AIR (33) 1946 Mad 110.
16. In 'Saraswatibai Shripad v. Shripad Vasanji', AIR (28) 1941 Bom 103, it was held that the paramount consideration in the matter of a custody of minor of tender years is the interest of the child rather than the rights of the parents. Human nature being much the same all the world over, if the mother js 3 suitable person to take charge of the child, it is quite impossible to find an adequate substitute for her for the custody of a child of tender years and consequently the mother is preferable to the father in such cases.
17. Appellant relied on the inalienable nature of a father's right and in support of his contention he referred me to 'Basant Kaur v. Gian Singh', AIR (26) 1939 Lah 359, which is a judgment of Bhide J., but in that case the wife had remarried with the permission of the husband and one of the conditions of allowing the wife to remarry was that she would hand back the child to the father who had also remarried and the case was decided on its own peculiar facts. Even there it was held that the father can be deprived of the custody of the child fqr strong reasons.
18. Reliance was next placed by the appellant's counsel on 'Sukhdeo v. Ram Chander', 46 All 706. This again was decided on its own facts. The dispute was between the father and the mother's relations, the mother being dead, and it was said to be in the interest of the minor that it should be given to the father. - (19) In 'Mt. Siddiqunnisa Bibl v. Nizam-uddin Khan', AIR (19) 1932 All 215, the mother was dead and the remarriage of the father was held not to be a disqualification. It might have been in that case, but in the present case I am unable to agree that the remarriage of the father is not a ground to be taken into consideration.
20. Similarly in 'Atchayya v. K. Narahari', AIR (16) 1929 Mad 81, the dispute was between the maternal grandfather of the child and its father. This case again was decided on its own peculiar facts.
21. A perusal of these authorities does not show that the father's right is absolute. It is circumscribed by the considerations of welfare of the minor. If the minor's welfare requires that custody should not be given to the father, he cannot get It merely because he happens to be the father. I have already given the various circumstances of this case and in my opinion it has not been shown that the father is not a fit person to have the custody of the child.
22. Reference was next made to 'Kaliappa Goundan v. Valliammal', AIR (36) 1949 Mad 603, where the custody was given to the mother, but the father was allowed to have the child three days in every quarter. On the basis of this authority, it was submitted by the appellant that the father should not be de-prived of the custody of the child altogether and that he should be allowed to keep the child for some periods during the year. In my opinion the present is not one of those cases. As was submitted by counsel for the respondent the petitioner has never really tried to have any interest in the child. He has never tried to see the child or to do anything which would show that he has any kind of affection for and Interest in her. The petition is not 'bona fide' and is motivated by pecuniary considerations. The contention of the respondent is in my opinion right and no case has been made out for allowing this arrangement nor was this raised even in the grounds of appeal. I am unable to make any order in favour of the father in the circumstances which have been proved in this case.
23. In the result, this appeal fails and isdismissed with costs in both the Courts.