(1) The parties to this litigation, who are Sainis by caste, were married to each other in the year 1941. On 20-7-1944, a son named Baldev Singh was born on them. The parents lived together for some time but it appears that their married life was not quite happy and smooth. In October, 1949, the husband, Harbans Singh, married a second wife and this completed the rupture between the parties, Shrimati Vidya Wanti, along with her son, thereafter continued to live with her parents. In April, 1941, she initiated proceedings under S. 488, Criminal Procedure Code, against her husband and was awarded Rs. 30/- per mensem by way of maintenance for herself and her son.
It seems that the petitioner found it difficult to discharge his obligations for maintenance towards the first wife and the child and therefore entered into a compromise with Vidya Wanti, renouncing all his martial claims against her in consideration of here giving up the right of maintenance. It is significant that by means of this deed, Harbans Singh's liability to maintain the son was also given up by the lady and she agreed to have the custody of the child for a period of six years. This agreement is dated 27-4-1952, and is marked Exhibit R. 1. Baldev Singh minor has ever since then been living either with his mother or with his other maternal relatives, for example, his maternal grandfather or maternal uncle. After the release granted the Harbans Singh, Shrimati Vidya Wanti appears also to have re-married and there are said to be three children born to her from her second marriage.
(2) The present application out of which this appeal has arisen was filed by Harbans Singh in April, 1958, under S. 25 of the Guardians and Wards Act for obtaining the custody of the minor Baldev Singh. Reliance for this claim has principally been placed on the agreement dated 27th of April, 1952, according to which Shrimati Vidya Wanti was to have the custody of the child for a period of six years, where after Harbans Singh was to be the guardian.
This petition has been resisted by Shrimati Vidya Wanti on a number of grounds, two of them, which are material for the purposes of this appeal, being that the Court at Amritsar has no jurisdiction because the minor ordinarily resides at Chandausi in Moradabad District, and that the welfare of the minor requires that he should continue to remain in the guardianship of the mother who has made adequate arrangements for properly looking after the child, previously through her father and now through her real brother who are both financially much better off the Harbans Singh and are more suited to look after the interests of the minor. The trial Court in a very well considered judgment disallowed the application on both these grounds.
After taking all the circumstances into consideration, the Court held that the minor was ordinarily residing at Chandausi in Moradabad district since June or July, 1957, with his maternal uncle where he has also been admitted to a school. In so far as the welfare of the minor is concerned, the Court has observed that the minor has, ever since the rupture between his parents, been living with his mother or his maternal relatives and has been properly and effectively looked after by them; the father has not cared to bother about the welfare of the child all these years and has not even cared to send him any amount by way of maintenance.
(3) The financial position of the minor's maternal uncle, with whom he is at present residing, as also of the minor's maternal grandfather, is much better than that of Harbans Singh; for these considerations the Court considered that the Welfare of the minor would be better served if he were allowed to remain in the guardianship of the mother.
(4) On appeal the Counsel for the appellant has agitated these two points and has contended that merely because about a year or ten months before the institution of the present proceedings the minor is taken to Chandausi, it should not be concluded that he is ordinarily residing there. In support of his contention he has relied on. In the matter of Lovejoy Patell AIR 1944 Cal 433, Mt. Nazir Begam v. Ghulam Qadir Khan, AIR 1938 Lah 313 and Sm. Shanti Devi v. Gian Chand Har Sukh Rai, AIR 1956 Punj 234. The facts of all these cases are however different and do not bear any close resemblance to those of the present case. It is not disputed that a question whether or not a minor ordinarily resides within the jurisdiction of a Court, has to be decided on the facts and circumstances of each case. In Mrs. Annie Besant v. Narayaniah, ILR 38 Mad 807: (AIR 1914 PC 41) while dealing with the question of jurisdiction under the Guardians and Wards Act, 1890, Lord Parker observed as follows:
'By the ninth section of that Act the jurisdiction of the Court is confined to infants ordinarily resident in the district. It is in their Lordships' opinion impossible to hold that infants who has months previously left India with a view to being educated in England and going to the University of Oxford were ordinarily resident in the district of Chingleput'.
(5) In the instant case it appears that for the purpose of the minor being better looked after, his mother sent him to her real brother at Chandausi where he was put into a school and where he was being properly looked after by the maternal uncle of the minor. In the circumstances it is not possible for me to hold, that the minor cannot be considered to be ordinarily residing at Chandausi at the relevant time when the present application was filed. The counsel threw a suggestion that perhaps this was done in order to oust the jurisdiction of the Amritsar Court, but there is absolutely no material on the record which can even remotely support this suggestion.
Even the statement of Harbans Singh does not support what has been suggested at the Bar before me. There is also no evidence showing that the child is not being properly looked after, or that he would be better looked after in the house where his stepmother must be reigning supreme. The two witnesses produced by Harbans Singh are not only most unimpressive but their evidence is worthless, and the third witness, Harbans Singh himself, has not said a word which can suggest that either the minor's residence at Chandausi has been maneuvered with the collateral purpose of ousting the jurisdiction of the Amritsar Court, or that the child is not being properly maintained and looked after by his maternal grandfather or his maternal uncle.
At this stage it is relevant to notice that the guardian Court actually suggested that the minor be examined, because being more than fourteen years of age he would apparently been in a position to understand his own interests and to express his own likings and preferences; but the counsel for Harbans Singh petitioner-appellant was not prepared to have the statement of the minor recorded. Mr. Wasu states at the Bar that this was probably due to the fact that the minor, having all these years lived with his mother and maternal relatives, would apparently express his own likings for them. It may be so; but if that be the position then it would certainly be a relevant circumstance to take into consideration while determining the question of minor's custody.
If Harbans Singh has all these years remained a stranger to his son and even though he had quarreled with his previous wife it was always open to him either to go and see the child or to send money or even to write to him. There is absolutely nothing on the record to suggest that he ever did so. Having thus allowed himself to remain an utter stranger, in my view, merely because he happened to be the natural father of the minor, would hardly be conducive to the welfare of Baldev Singh to be handed over to his natural father and to make him live in a house with his stepmother in preference to his own maternal uncle and maternal grandfather.
(6) A suggestion was thrown at the Bar by the counsel for the respondent that it may involve a certain amount of risk to had over the minor to the father, because his stepmother may not be very affectionate or well-disposed towards him. According to the counsel, Baldev Singh's right in his natural father's property may be a circumstance which may at moments influence his stepmother to be ill-disposed towards Baldev Singh. Without expressing any opinion on this suggestion which is based on mere conjectures, I would be inclined to dismiss his appeal on the same grounds on which the guardian Court has done.
In Sm. Maya Devi v. Amolak Ram, (1956) 58 Pun LR 557, Bishan Narain J. observed that the right of a father as a natural guardian to the custody of his minor child is not an indefeasible right in law, if the exercise of such a right is not in the minor's welfare, and that an order under S. 25 of the Guardians and Wards Act is really meant to protect the minor's welfare which is the primary consideration in deciding whether or not the custody of the minor should be restored to the applicant. Such a matter has to be decided on practical and humanitarian and not on sanctimonious grounds. I am in respectful agreement with the observations made in the reported case.
(7) For the reason given above, this appeal fails and his dismissed with costs.
(8) Appeal dismissed.