1. The petitioner father has been disentitled to the custody of his two minor children by the trial Court. He appeals. The children are now with their maternal grand-parents, the respondents.
2. Smt. Rani, wife of the appellant, admittedly suffered burn injuries on Oct. 28, 1977 and as a result of that, expired on Oct. 31, 1977. Since that date the children are in the custody of the respondents.
3. As a result of the above noted incident, the appellant was branded as a murderer and was tried by the District and Sessions Judge, Amritsar. He, however, was acquitted. This judgment of the Sessions Judge was challenged in appeal (Criminal Appeal No. 1059 of 1978, State of Punjab v. Amrik Rai) but the same was dismissed on Jan. 21, 1981.
4. The appellant filed the present application for the custody of the children, namely, Deepak Kumar alias Bobby and Sonoo aged 9 years and 6 years respectively. Though initially he also prayed for his appointment/declaration as a guardian of these minors, yet during the course of proceedings this prayer was thought to be completely unnecessary and thus he confined his claim to the custody of the children only. These children admittedly were born on Oct 5, 1972, and Jan. 1, 1976, respectively. The trial Court even after holding that the appellant is well placed in life socially and financially declined to him, the relief prayed for keeping in view the basic factor 'welfare of the children'. The primary consideration that weighted with the lower Court for this conclusion in that even though the appellant has been acquitted of the charge of murder of his wife, yet it is safe to assume that he had made her life so miserable that she was forced to commit suicide.
5. Mr. D. V. Sehgal, learned counsel for the appellant besides urging with some amount of vehemence that the above noted approach and conclusion of the trial Court is neither well-merited nor well-founded, submits that the appellant begin the father of the minors has not only the primary but an inalienable right to their custody in view of the provisions of Ss. 17 and 19 of the Guardians and Wards Act read with Section 6 of the Hindu Minority and Guardianship Act, 1956. According to the learned counsel, this right of the appellant cannot be defeated unless the Court comes to a positive conclusion that he is in any manner disqualified to have the custody of the minors. In supports of this contention of his he has referred to some judgments to which a detailed reference. I find, is unnecessary in view of the pronouncement of their Lordships of the Supreme Court in Rosy Jacob v. Jacob A. Chakramakkal, AIR 1973 SC 2090, where after referring to the provisions of the Divorce Act in accordance with which the parents of the minors had been granted divorce by the Court and those of the Guardians and Wards Act, it was observed thus :
'But whether under one Act or the other the controlling consideration governing the custody of the children is the welfare of the children and not the right of their parents.' Not only this, it has been ruled by a Division Bench of this Court in Rattan Amol Singh v. Smt. Kamaljit Kaur, (1960) 62 Pun LR 578 : (AIR 1961 Punj 51) that the provisions of the two Acts, i. e., Guardians and Wards Act and Hindu Minority and Guardianship Act, have to be construed together because these constitute parts of a single scheme or of the same legislative plan and in the light of that it is incumbent on the Courts to give proper and due effect to the provisions of Section 13 of the latter enactment. It has further been held that in these matters the benefit of the minor is the dominant and the paramount consideration and in the given facts and circumstances of a case, the father's prayer under Section 25 of the Guardians and Wards Act can legitimately be disallowed in the better interest of the minor's welfare. In the face of these authoritative pronouncements and more particularly the provisions of Section 13 of the Hindu Minority and Guardianship Act which codifies a the above noted principle, I do not find any merit in the submission of the learned counsel for the appellant to the effect that the appellant being the natural guardian of the minors cannot be disentitled to the custody of the minors unless the other side is able to prove his disqualification. This of course is true that while considering the question of 'welfare of the minors' the right of the father as recognised by law has to be kept in mind and given its due weight, but the primary and paramount consideration undoubtedly remains to be the welfare of the minors. The expression 'welfare of the minors' though has not been defined, yet undoubtedly has to be given a very wide meaning. It ought to be measured in money only or by physical comfort alone. It has many facets, such as, financial, educational, physical, moral, and religious welfare. In fact it includes every circumstance that a wise parent must or ought to consider for the well being of the minors. Due regard must also be had to the ties of affection and the capacity for building up a good career for the infant. So it is this consideration which to my mind has to be the primary concern of the Court.
6. As already indicated above, the factor that the appellant had been prosecuted for the murder of his wife, Smt. Rani, has weighed very heavily with the lower Court in dismissing the application of the appellant. No doubt in the normal course this type of circumstance has to be given its due weight in these matters yet in the present case I find that the learned Court has only resorted to guess work in holding that though the appellant has been acquitted of the charge of murder yet he must be held guilty of the circumstances which he creates and which ultimately led to the commission of suicide by his wife, Smt. Rani. This probably is on account of the fact that the said Court had not the advantage of going through the findings recorded by this Court in the appeal (Criminal Appeal No. 1059 of 1978) filed against the acquittal of the appellant. During the trial, the appellant had pleaded that the death of Smt. Rani was on account of accident. As per the judgment noted above this is what he pleaded :--
'I was about to go out from my house on my scooter and was in the process of starting the same. When I went out Rani was working in the kitchen. I heard the noise of 'Save Save' created by Rani, at which I hurriedly went inside. When I reached there I found that her Sari was set on fire. I made attempt to extinguish the fire with my hands and thereafter with a blanket. While extinguishing fire, I received those burn injuries. After extinguishing fire, I brought a taxi and put Rani in it for taking her to Amritsar. The entire Mohalla had collected. In the meantime, Sat Pal, father of Rani, also arrived there and he also accompanied us. We admitted Rani in S. G. T. B. Hospital, Amritsar, I also got myself admitted as I too had burn injuries.'
Some of the material findings recorded in this judgment are as follows :--
(i) 'The trial Court has given cogent reasons to disbelieve the dying declaration Exhibit P-J and we do not find any reason to arrive at a different conclusion.'
Exhibit P-J was claimed to be the statement of the deceased given by her in the hospital on Oct. 28, 1977 and in fact formed the basis of the first information report against the appellant. For reaching the above noted conclusion, the learned Judges of this Court have referred to a number of factors and circumstances to show that the alleged dying declaration as incorporated in Exhibit P-J was never made by Rani deceased.
6-A. Reading motive this Court held :--
(ii) 'There is nothing on record to show that the relations between the respondent and his wife were strained ...... He could absolutely have no grudge against his own wife with whom he had lived peacefully at least for four years...... Accordingly we are of the considered view that the respondent had no motive to commit the murder of his own wife.'
7. The prosecution case as per this judgment solely depended on the testimony of Sat Pal (P. W. 6) the present respondent and father of Smt. Rani Hira Lal, P. W. 9, uncle of the deceased and brother of the present respondent and Ajit Kumar, P. W. 10. About the latter two witnesses the Court held :--
(iii) 'The evidence of these witnesses does not inspire confidence ...... As observed earlier no reliance can be placed on the testimony of Hira Lal, P. W. 9 and Ajit Kumar P. W. 10. They are chance witnesses and seem to be made up witnesses.'
8. Regarding Sat Pal, P. W. 6; now respondent, this is what has been said by this Court while examining his evidence qua the motive imputed to the appellant :--
(iv) 'If at all, that conduct of their was to give rise to a grouse to Sat Pal P. W., father of the deceased, rather than to the respondent..... ....... ......'
9. While examining the truthfulness or the probability of the defence pleaded by the appellant, the Court found :--
'(v) According to Dr. Jagdish Goswami (P. W. 2) Smt. Rani (since deceased) was admitted in the hospital at 11.30 at A. M. on 28th October, 1977 vide Entry No. 23377 of the Emergency Admission Register, wherein it is mentioned that she was brought by her husband and father Sat Pal. This entry also bears the signatures of the respondent and Sat Pal P.W. This is also more consistent with the plea of the respondent. If she was killed by the respondent and Sat Pal (P. W 8) had learnt about the same by then, Sat Pal would not have permitted the respondent to accompany him to the hospital.'
In the face of these finding recorded by this Court it appears difficult rather impossible to attach any blemish to the appellant on account of the death of Smt. Rani. In a nut shell, the reading of the judgment indicates that the whole case was framed against the appellant not only with the complicity but with the active participation of respondent Sat Pal.
10. Besides all this, one of the pleas taken by the respondent and his wife for defeating the present application of the appellant was that they had adopted Deepak Kumar as a son when he was only six months old. In support of his plea of theirs they have been examined Om Prakash, R. W.1. This witness claims himself to be a Munim of the Pujari of Jawla Mukhi Mandir and produced certain Behi entries to show that Mundan Ceremony of Deepak Kumar was got performed by Sat Pal on May 2, 1976. This evidence too has been disbelieved by the trial Court. It has been found as a fact in the light of evidence of both the parties that the minors were removed by the respondents from the house of the appellant on the day their mother sustained burn injuries since there was no elderly female member available in the house to look after these children. All this shows that Sat Pal respondent is not a person who has any regard, for truth and can rather go to the extent of connecting as serious a case as of murder against his son-in-law, that is, the appellant. At the same time I find that the allegation of the appellant of the effect that Sat Pal respondent is an addict of alcohol and speculator in Darra Satta is also not well-founded. This, however, is established on record that the respondents are old illiterate persons.
11. Further putting the case of the respondents at its maximum that the appellant, if not guilty of murder of his wife, should at least be taken to be misbehaving towards her, does not, to my mind, in any way, indicate that he should or would adopt a similar attitude or behaviour towards, his children also. There is not an iota of evidence available on record in this regard. Circumstances rather are that as soon as he finished with the ordeal of a murder trial against him on May 18, 1978, he filed the present application for the custody of the children on Nov. 17, 1978. This goes to show the anxiety on the part of the appellant to look to the welfare of the minors.
12. The only other children advanced by Mr. Awasthy, learned counsel for the respondent against the restoration of the custody of the minors to the appellant is that there being no elderly female member in the family of the appellant, the minors would surely be deprived of motherly love and affection which they can only get from respondent No. 2, Smt. Raj Sood, mother of their mother. Further I find, besides a college going sister of the appellant, there is wife of his younger brother in the house and secondly the non-restoration of the custody of the minors to the appellant would surely deprive them of the fatherly love and affection also which the appellant only can bestow on them. I am also of the view that the minors are not of that tender age that their proper living the well-being cannot be maintained by the appellant. According to the learned counsel for the appellant, he being an affluent person can well afford to put the children in a hostel of a well known public school. The learned counsel informs me that in fact that is what the appellant intends to do. Above all this, as already indicated, the respondents being illiterate the family the whole atmosphere in the house, in my mind, would not be conducive to the proper growth and well-being of the minors.
13. From the abovenoted facts and circumstances I am of the considered view that the minors would not only be much happier and comfortable in the custody of the appellant but he also has the capacity, means and resources to help them in carving out a nine future for themselves.
14. For the reasons recorded above I allow this appeal and set aside the order of the trial Court. I further direct the respondents to restore the custody of the minor children to the appellant immediately. I, however, pass no order as to costs.
15. Appeal allowed.