(1) This appeal arises out of an application filed by Rattan Chand (respondent in this Court) under section 25 of the Guardians and Wards Act for the custody of his minor wife Shrimati Parkasho alias Machhlo daughter of Shrimati Shanti Devi, the petitioner in this Court. The application was filed in the Court below on 9th may 1960 on the allegation that the parties had been married about six or sever months earlier and the wife had lived with the husband for about two months. Thereafter, when the husband went to Solan, taking advantage of his absence Shrimati Shanti Devi took away Shrimati Parkasho. On the husband's return from Solan, he went to the house of the wife's mother but she refused to end her daughter. Alleging that Shrimati Parkasho is being unnecessarily detained, he has asked for his wife's custody under the Guardians and Wards Act.
(2) In the written statement the defendants admitted the age of Shrimati Parkasho to be 15 or 16 years and also the marriage between the parties about six or seven months prior to the filing of the petition. It has also lot been denied that the wife lived with the husband for about two months. It has, however, been averred that the treatment of Rattan Chand's mother with Shrimati Parkasho was no good and therefore Shrimati Shanti Devi visited Rattan Chand's house. After some days Sukhi, the husband's brother, brought Shrimati Parkasho to the house of Nanak who was impleaded as respondent No. 4 by Rattan Chand in his petition and left her there. It has also been asserted that in presence of the Panchayat Rattan Chand actually said that be would shoot Shrimati Parkasho and her relatives. On these allegations, among others, the husband's petition has been resisted.
On the pleadings of the parties the Court framed the following issues:
1. Is the petitioner not entitled to the custody of Shrimati Parkasho Devi for the reasons stated in the written statement?
2. Is it for the welfare of Shrimati Parkasho Devi to return to the custody of this petitioner?
The Court below felt that it was for the welfare of the minor wife to live in the custody of her husband, and with this observation the petition was allowed an Shrimati Shanti Devi directed to produce Shrimati Parkasho in Court. In so far as the allegation that the husband had said in the presence of the Panchayat that he would shoot Shrimati Parkasho, the Court seems to have disbelieved the evidence of the witnesses on the ground that no reason had been given by any witness. It would be desirable to reproduce the actual words in which the Court below expressed itself:
'No doubt two witnesses have been examined by the respondent to show that the petitioner uttered that he will shoot down Shrimati Parkasho Devi, but no reason has been given out by any witness. These witnesses appear to have been procured by respondent No. 2, Devi Saran, Headmaster, Pragpur, who holds a good position there. Very vague evidence has been led and I do not feel the necessity of discussing P. Ws. The Circumstances of the case throw light upon the fact that it is in the case throw light upon the fact that it is in the welfare of the minor if she lives in the custody of her husband, that is, the petitioner.'
Feeling aggrieved by this order, Shrimati Shanti Devi has filed this appeal, and Mr. V. C. Mahajan has submitted that the Court below, has, while adjudicating upon the present controversy, completely lost sight of sub-section (3) of section 17 of the Guardians and Wards Act which lays down that if the minor is old enough to form an intelligent preference, the Court may consider that preference. It has also been argued that if the wife apprehending danger to her life does not want to go and live with the husband the Court should not have forced her under the Guardians and Wards Act to go and live under the complete control of the husband. It has further been emphasised that on the evidence on the record cruelty has been amply established. Several authorities have been cited by the learned counsel for the appellant in support of the view that it is the welfare of the minor which is the dominant factor in considering the question of the return of the minor to the custody of his or her guardian under section 25 of the Guardians and Wards Act.
It is unnecessary for me to notice those authorities in detail because the proposition is well established and indeed has not been disputed on behalf of the respondent. A Division Bench authority of this Court in Rattan Amol Singh v. Smt. Kamaljit Kaur 1960-62 Pun L. R. 578 : (AIR 1961 Punj 51) was particularly relied upon, since it was contended that the Division Bench decision of this Court is binding in the present proceedings before me sitting singly. There also it had been laid down that the welfare of minor is the principal consideration while dealing with the question of minor's custody.
(3) In the present case I have been taken through the evidence on the record, and I find that the apprehension on the part of the wife does not seem to be completely unfounded. As a matter of fact, it is agreed at the Bar that the relations between the parties are strained and have reached such a pitch that proceedings for annulment of marriage were also started by the wife, though in the trial Court, I am informed she has filed, but an appeal is going to be filed, if it has not already been filed. This was the information given to me at the Bar by the learned counsel for the appellant. The provisions of section 25 of the Guardians and Wards Act confer on the Guardian Court a discretion to be exercised in the interest of the welfare of the minor. The Court is not bound necessarily to hand over the minor's custody to the guardian merely because the latter applies for it. In these circumstances the Court, in my opinion, has to consider and weigh all the circumstances and then come to a determination of the question.
In the present case the minor is living with her real mother who can by no means be considered to entertain any feelings of hostility towards her daughter, and indeed no cogent or convincing ground has been shown that Shrimati Parkasho is being kept by her mother for any undesirable purpose. Shrimati Parkasho is grown-up enough and if after having stayed with her husband for a couple of months after he marriage she actually states that she is apprehending danger to her life in her husband's house, there must be some basis for such an apprehension. Besides, the matter having also gone to the matrimonial court, it would in my opinion, have been more proper for the Court to abstain from passing any order under section 25 of the Guardians and Wards Act and should have left the matter to be determined in appropriate proceedings under the Hindu Marriage Act.
(4) On behalf of the respondent husband it was most emphatically asserted that Shrimati Parkasho is under the influence of her mother. I do no find any material on the present record justifying this contention. Normally speaking, no Hindu mother would like her daughter to stay away from her husband; nor would a married girl like to stay away from her husband's house unless there are some very compelling reasons. No cogent material has been pointed out on the existing record on behalf of the husband showing the wife's apprehension to be unfounded. The only reasonable conclusion, therefore, seems to me to be that on account of the strained relations between the wife and the husband the wife apprehends that it would not be conducive to her happiness, nor would it be safe, if she were to go and live in her husband's house. If this be the position, then in my view the order for handing over the custody of Shrimati Parkasho to her husband under section 25 of the Guardians and Wards Act would be wholly unjustified and is liable to be set aside.
(5) For the reasons given above, allowing this appeal I set aside the impugned order and dismiss Rattan Chand's application under section 25 of the Guardians and Wards Act. Keeping in view the fact that he is the lawfully married husband of Shrimati Parkasho, I would leave the parties to bear their own costs in the hope that some attempt might still be made by the parties to make up and come to some sensible and reasonable arrangement so that no breach occurs in the matrimonial life of the parties.
(6) Appeal allowed.