1. This appeal is directed against the order of the Guardian Judge, Jullundur, dated 9-2-1977, whereby the custody of the minor was given to his father, the respondent.
2. An application was made by the respondent for the custody of his minor son, Jiwan Pal alias Rajinder, born on 28-1-1964 against the present appellants, who are maternal grandfather and maternal grandmother of the minor respectively. The mother of the minor, Smt. Tushar Kanta died in 1973 at the house of her parents, the appellants. The case of the respondent is that he is the father of the minor and thus his natural guardian, that he has sufficient property and income to maintain the minor properly and that his approximate income is Rs. 5,000/-per mensem. The appellants, on the other hand, are alleged to be financially poor and do not have sufficient means to support and educate the minor. Both the appellants are of old age. Appellant No. 1, the maternal grandfather of the minor, is suffering from paralysis for the last more than ten years and so the health and prosperity of the minor in the custody of the appellants is in danger. It was also alleged in the petition that the appellants were keeping the minor in their custody out of greed as they wanted to extract money from the respondent. As against this, the case of the appellants is that the minor is living with them since his birth and was born at their house. The allegation of the respondent that the appellants are not in possession of sufficient means to bring up and educate the minor was denied. About six months prior to the birth of the minor, relations between the respondent and the mother of the minor became strained because the respondent had illicit relations with the wife of his brother Sada Nand, and the mother of the minor objected to the same, with the result that she had to shift to the house of her parents, i.e., the appellants. The minor's mother was got trained as a nurse. It was also averred that the respondent was trying to take away the minor because he was anxious to grab the insurance money. On the pleadings of the parties the following two issues were framed:--
1. Whether this Court has no jurisdiction to try this application?
2. Whether the applicant is entitled to the custody of the minor Jiwan Pal alias Rajinder?
At the time of arguments issue No. 1 was not pressed. Regarding issue No. 2, the learned Guardian Judge came to the conclusion that it was in the interest and welfare of the minor that he should remain in the custody of his father, the respondent, and an order was passed accordingly.
3. It has been contended by the learned counsel for the appellants that it is clear from the evidence on the record that since his birth the minor had throughout remained in the custody of the appellants at their house in village Kathgarh and that the minor was getting education in the High School in that village and was studying at present in the 8th class. The finding of the trial court is that according to the evidence of P. W. 1 Resham Singh, Physical Training Instructor of the D. B. M. High School, Kultham, the minor had been attending the said school from 5-4-1975 to 14-5-1975 in the 6th class and according to P. W. 5 he attended the said school from 5-4-1975 to 12-4-1975 and thereafter from 6-5-1975 to 14-5-1975, and that the school was closed for summer vacation from 14-4-1975 to 5-5-1975. According to the statement of R. W. 3 Jagat Ram, Headmaster Primary School, Kathgarh, the minor left the school at Kathgarh on 1-4-1975. From this evidence the trial Court concluded that after 1-4-1975 the minor remained with his father in village Kultham and studied in the High School at Kultham for about a month and thereafter he was removed by the appellants on 15-5-1975. There seems to be no warrant for this conclusion. There is no evidence on the record to show that the minor had remained in the custody of his father at village Kultham before 5-4-1975 or after 15-5-1975. It is not denied that at the time of the birth of the minor, his mother was residing with her parents at village Kathgarh. This is also not disputed that the minor was born at the house of the appellants where his mother was residing at that time. The statement of R. W. 3 Jagat Ram, Headmaster, clearly establishes that from the very beginning the minor was studying in the school at village Kathgarh where the appellants have their residence. In these circumstances it does not stand to reason as to why the minor was taken by the father to his village Kultham where the minor studied in the High School only for about three weeks at the maximum. On the one hand it is urged that the appellants, maternal grand-parents of the minor, are very old and weak in health and that the minor's maternal grand--father, appellant No. 1, is suffering from paralysis for the last ten years, on the other it is stressed that the minor was forcibly removed from the father, the responden. From the facts as proved on the record and the circumstances of the case the removal of the minor by the appellants from the custody of the respondent is hard to believe. Undoubtedly there is no evidence on the record to support the contention of the appellants that the respondent was having illicit relations with the wife of his brother and on that account the minor's mother left the house of her husband, the respondent, and began living in the house of her parents. Persual of the letters, Exhibits A1/A to A5/A written by the mother of the minor, and the letters Exhibits A--1 to A--18 written by appellant No. 1 to the respondent do not lend any credence to the contention of the appellants in this regard. On the other hand, the perusal of these letters shows that the mother of the minor was living separately from her husband, but all the same there is nothing to show that their relations were in any manner deeply strained. From the documentary evidence produced by the respondent it appears that the respondent has landed property and also owns a house. This is also proved from the record and even from the admission of appellant No. 1 in his statement that the appellants do not have any property and that they are quire old and further that appellant No. 1 is suffering from some sort of paralytic disease.
4. Taking into consideration all the facts and circumstances as mentioned above, the important question to be decided is as to which of the parties will be the proper guardian of the minor keeping in view his interest and welfare. According to S. 6 of the Hindu Minority and Guardianship Act, 1956, father is the natural guardian of the Hindu minor. However, according to S. 13 of this Act the welfare of the minor is of paramount consideration by the Court appointing or declaring any person as guardian of the minor. The said provision is reproduced below.
'13. (1) In the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.'
The same is provided under S. 17 of the Guardians and Wards Act, 1890. In sub--s. (2) of this section there is a reference to various factors which are to be taken into consideration by the Court while deciding the question of guardianship. According to sub--s. (3) of that section if the minor is old enough to form an intelligent preference, the Court may consider that preference.
5. The learned counsel for the appellants has relied upon Muthuswami v. Chinna Muthuswami, AIR 1935 Mad 195, Ponniah Asari v. Suppiah Asari, AIR 1935 Mad 363, Sambayya v. Rudrappa, AIR 1935 Mad 568, Mr. Richard v. Mrs. Richard, AIR 1955 Mad 451, Sayiduddin v. Abdul Bari, AIR 1929 All 857, and Gaulam Hussain v. Ida, 170 Ind Cas 592 : (AIR 1937 Lah 481), in support of the proposition that in deciding the guardianship of a person, the preference of the minor should be an overeriding consideration. On the other hand, the learned counsel for the respondent has relied upon Harakh Singh v. Lalmuni Kuer, 1977 Cri LJ 723(Pat), Venkatarama Ayyangar v. Thulasi Ammal, AIR 1950 Mad 320, S. Bikramajit Singh v. Iqbal Kaur, AIR 1974 Punj & Har 124 and Samitran Devi v. Suba Ram, AIR 1961 Punj 161, and has canvassed the proposition that where the court comes to the conclusion that the minor is not old enough to make an intelligent preference, his wish should not be given much weight, and secondly, that unless a natural guardian is found to be unfit, his claim should not be ignored in preference to others. Perusal of all these decisions relied upon by one side or the other shows that each case has to be decided in the light of the facts and circumstances of that particular case. However, the following factors should be kept in mind while arriving at a decision to declare the appointment of a guardian of the minor:--
1. The natural guardian should be given preference if his appointment is not found to be against the welfare of the minor, or unless he is found to be unfit.
2. Preference of the minor, if he is sufficiently old, should be given due weight.
3. The only and the paramount consideration for the purpose of appointing a guardian is the welfare of the minor.
6. So far as the present case is concerned, it cannot be disputed that the minor was born when his mother was living at the house of her parents in village Kathgarh. Thereafter his mother did not live with the respondent at any time till her death. The minor was brought up by the appellants till the application was filed by the respondent, and the minor was getting his education in the school in the village of the appellants. Even if the evidence of the respondent is believed that the minor was in the custody of the respondent for about one month in April--May, 1975, and studied in the school at village Kultham where the respondent is residing, there is overwhelming circumstantial and other evidence to justify the conclusion that except for that short period of one month, the minor had been living with the appellants up to this date. The statement of the minor was recorded by the trial Court on 23-12-1976 according to which the minor was living with his maternal grand--parents since his birth and was getting education there and did not know his father. Nor did he show any inclination on his part to live with the respondent. After hearing the arguments of the learned counsel for the parties, I had ordered on July 21, 1977, that it was desirable to again call the minor and find out his preference. The minor was examined by me in the presence of the learned counsel for the parties as well as appellant No. 1 and the respondent. According to the minor, he was studying in the 8th class in the High School at the village of the appellants. He answered all questions quite intelligently and expressed himself very emphatically that he wanted to live with the appellants and did not want to live with the respondent. I allowed the respondent to take the minor outside the court--room and have a talk with him for some time by himself and make an attempt to persuade the minor to live with him. The respondent availed of this opportunity and had a talk with the minor. However, when an enquiry was made again from the minor, he did not like to change his opinion and strongly wanted to remain with the appellants. No doubt at present the respondent appears to be in a better financial position than the appellants, and it is also correct that the respondent has better health than the appellants who seem to be quite old, but keeping in view the strong preference expressed by the minor, who is aged 14 years and is studying in the 8th class, and appears to be quite intelligent, as also the fact that since his birth the minor has been brought up and educated by the appellants at their house. I am of the considered opinion that if the minor is forced to leave the house of the appellants, and live with the respondent, it will not be in the interest and welfare of the minor. There is a justifiable apprehension that the minor, if forced to part with the company of the appellants, may become the victim of a terrible emotional upset. Parting of the minor from the appellants after 14 years is likely to give rise to numerous complications, which may handicap the proper development of the personality of the minor. Under these circumstances, the welfare of the minor, which is of paramount consideration under the settled law, requires that he should be allowed to continue to remain in the custody of the appellants.
7. For the reasons mentioned above, the appeal is allowed with costs and the application of the respondent for the custody of the minor dismissed.
8. Appeal allowed.