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Sm. Shanti Devi and anr. Vs. Gian Chand Har Sukh Rai - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal from Order No. 181 of 1955
Judge
Reported inAIR1956P& H234
ActsGuardians and Wards Act, 1890 - Sections 17
AppellantSm. Shanti Devi and anr.
RespondentGian Chand Har Sukh Rai
Appellant Advocate B.R. Tuli, Adv.
Respondent Advocate D.N. Aggarwal, Adv.
DispositionAppeal dismissed
Cases ReferredMrs. Annie Besant v. Narayaniah
Excerpt:
.....226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - in these circumstances there is no reason why the father of the boy should not be allowed to resume custody of the son rather than wait till the minor attains the age of 12. in this connection it should not be forgotten that shanti devi is deaf and dumb and is peculiarly dependent on her second husband who cannot have real affection for his step-son, ghulla mal has a daughter of his own and may have..........of the district judge, amritsar, restoring custody of ruldu ram minor about six years old to his real father gian chand.2. gian chand and sm. shanti devi were married about ten years ago. ruldu ram was born on 1-10-1949. some time later the relations between the husband and the wife got strained but its cause is not clear from the record. it is, however, admitted by the parties that the wife applied for maintenance under section 488, criminal p. c., while the husband filed a suit for restitution of conjugal rights.the dispute was compromised by a written agreement dated 30-8-1951. under this agreement the wife gave up her right to maintenance after getting rs. 500/- from the husband. under this very agreement sm. shanti devi and her father ganga ram got custody of the minor child till.....
Judgment:

Bishan Narain, J.

1. This is an appeal under Section 47 Guardians and Wards Act by the real mother and maternal uncle of the minor against the order of the District Judge, Amritsar, restoring custody of Ruldu Ram minor about six years old to his real father Gian Chand.

2. Gian Chand and Sm. shanti Devi were married about ten years ago. Ruldu Ram was born on 1-10-1949. Some time later the relations between the husband and the wife got strained but its cause is not clear from the record. It is, however, admitted by the parties that the wife applied for maintenance under Section 488, Criminal P. C., while the husband filed a suit for restitution of conjugal rights.

The dispute was compromised by a written agreement dated 30-8-1951. Under this agreement the wife gave up her right to maintenance after getting Rs. 500/- from the husband. Under this very agreement Sm. Shanti Devi and her father Ganga Ram got custody of the minor child till he attained the age of 12. After the compromise Gian Chand married Sm. Shakuntala Devi and has two sons from her. Shanti Devi also married Ghulla Mal and during the pendency of these proceedings a daughter was born to her. Gian Chand has applied for the custody of the minor son and the District Judge has granted his application.

3. The only question, for decision is whether it is for the welfare of the minor that Gian Chand should resume the custody of his minor son after he had allowed his first wife and her father to have that custody till the minor attained the ago Of 12.

4. The circumstances in which the parties are placed are not in dispute. Gian Chand is carrying on the business of grocery and has an income of about Rs. 200/- per mensem. He has a verified claim of Rs. 27.000/-. He lives in Patti with his mother and brother and there are two High Schools in that locality. He married Shakuntala Devi in 1952 and has two sons from her. Admittedly, he agreed on 30-8-1951, to leave Ruldu Ram minor in the custody of the minor's mother and maternal grandfather till he attained the age of 12.

5. The circumstances in which the minor's real mother is placed are these. She is deaf and dumb. After separation from her first husband she went away with her minor son and lived with her father Ganga Ram. In 1952 or 1953 she married Ghulla Mal and is living with him in village Ba-sarke. There is a primary school in a nearby village where the boy is studying. She has a daughter from Ghulla Mal. The financial position of Ghulla Mal is not known although Mulkh Raj R. W. 1 has stated that he is running a shop in the village. Ganga Ram has died. Evidence has been produced in this case proving that Ghulla Mal is educating the boy in the primary school and is otherwise also treating him properly.

6. Now there can be no doubt that the father of the minor boy is his natural guardian under Hindu Law and under the Guardians and Wards Act also he has the right of custody unless the Court comes to the conclusion that the father is unfit to have that custody and that it is not for the welfare of the minor that the father should be allowed to exercise this right of his.

Their Lordships of the Privy Council in Mrs. Annie Besant v. Narayaniah, 38 Mad 807 : (AIR 1914 PC 41) (A) have enunciated the principles' relating to the father's right in these words--

'There is no difference in this respect between English and Hindu Law. As in this country so among the Hindus, the father is the natural guardian of his children during their minorities, but this guardianship is in the nature of a sacred trust, and he cannot therefore during his lifetime substitute another person to be guardian in his place. He may, it is true, in the exercise of his discretion as guardian, entrust the custody and education of his children to another, but the authority he thus, confers is essentially a revocable authority, and if the welfare of his children requires it, he can, notwithstanding any contract to the contrary, take such custody and education once more, into his own hands.'

It was, however, recognised in this case that in a particular case if it may not be for the welfare of the minor that the father should resume the custody in such a case the Court must interfere to prevent such a revocation. Applying these principles I am of the opinion that the custody of the minor should be given to his father Gian Chand in spite of the agreement dated 30-8-1951,

7. It was argued on behalf of the appellants that after the compromise in 1951 the father took no interest in the minor boy and that he has remarried and his step-mother is not likely to treat him properly. It was further argued that this is not a fit case to allow the father to resume the custody of the minor when the boy has been living all this time with his real mother and his real maternal uncle and also his step-father. There is no substance in these arguments.

At the time of the compromise the minor was only two years old and it was only proper that the father should have agreed that the boy should live with his mother. Since then considerable change has taken place in the circumstances of the mother. She has married again and has a daughter from her second husband. She is living with her husband and not with her father. Her father, as I have already said, has since died.

In these circumstances there is no reason why the father of the boy should not be allowed to resume custody of the son rather than wait till the minor attains the age of 12. In this connection it should not be forgotten that Shanti Devi is deaf and dumb and is peculiarly dependent on her second husband who cannot have real affection for his step-son, Ghulla Mal has a daughter of his own and may have other children as well and in the circumstances it would not be in the interest of the minor boy that he should be left to be brought up till the aged of 12 by his step-father.

It is well settled that second marriage by the father does not per se render him unfit to be the guardian of his son, nor does the fact that he has sons from his second wife alter the position materially. It is not suggested on behalf of the appellants that his real father and his step-mother are persons who are not likely to treat the minor properly and a mere suspicion that it may so happen in future is not sufficient ground for denying the real father his right and duty to have the custody of his son & to educate him.

8. Taking all these circumstances, I am of the opinion that the learned District Judge, Amritsar, was correct in allowing the application of Gian Chand under Section 25, Guardians & Wards Act and in ordering the custody of Ruldu Ram minor to his real father.

I consider it, however, only fair that Gian Chand should allow Shanti Devi and Ronki Lal (maternal uncle of the minor) reasonable opportunities to visit and see the boy as Just now the boy is likely to have greater attachment for his real mother and maternal uncle with whom he has been living all this time than with his real father and his step-mother and step-brothers and I order accordingly. I also hope in the interests of the minor boy that the parties concerned will take a reasonable view of the matter and not make the life of this, boy of six years age unhappy by their selfish attitude.

9. The result is that this appeal fails and isdismissed. I, however, make no order as to costsof this appeal.


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