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Raj Rani Vs. Subhash Chander - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 223 of 1981
Judge
Reported in23(1983)DLT240
ActsGuardian and Wards Act, 1890 - Sections 7; Hindu Minority and Guardianship Act, 1956 - Sections 6
AppellantRaj Rani
RespondentSubhash Chander
Advocates: Madan Bhatia,; Mukul Rohatagi and; S.K. Bhatia, Advs
Cases Referred(supra.). In Ram Singh v. Lila Devi
Excerpt:
(i) guardians and wards act, 1890 - sections 7, 19(b) & 25--minor child already with father, the natural guardian--mother applying for appointment as guardian and child's custody--despite section 19(b) custody can be given to the mother--wife a school teacher--considerations for custody and guardianship--the welfare and the interest of the child, his education, conduct of the parties and cultural needs is of importance--mother appointed guardian in spite of the financial superiority of the father.; (ii) hindu minority and guardianship act, 1956 - section 6--father the natural guardian of a minor--custody of minor below five years ordinarily with the mother--tenderness of age overwhelmingly requires maternal affection.; the appellant filed an application under sections 7 and 25 of the.....sachar, j.(1) this is an appeal against the order of the learned single judge by which he affirmed thejudgment of the trial court, dismissed the application filedby the appellant (mother) under section 7 and 25 of theguardian and wards act for custody of the child (son).(2) the parties were married on 23-11-1976. a malechild was born to them in november 1977. unfortunatelyright since the beginning the parties have not had a happymarried life. according to the parties they are at varianceas to at what particular point of time the wife left the husband's house and came back and again went away. thehusband's case being that for the first time she left the housesometime in march 1978, (leaving the child behind). butafter a couple of months, she came back and staved on till19-3-1979 when she.....
Judgment:

Sachar, J.

(1) This is an appeal against the order of the learned single Judge by which he affirmed thejudgment of the trial court, dismissed the application filedby the appellant (mother) under Section 7 and 25 of theGuardian and Wards Act for custody of the child (son).

(2) The parties were married on 23-11-1976. A malechild was born to them in November 1977. Unfortunatelyright since the beginning the parties have not had a happymarried life. According to the parties they are at varianceas to at what particular point of time the wife left the husband's house and came back and again went away. Thehusband's case being that for the first time she left the housesometime in March 1978, (leaving the child behind). Butafter a couple of months, she came back and staved on till19-3-1979 when she is said to have left again. Ail this timethe child is said to have been with the father. She is saidto have come back in July 1979 and stayed on till 8-5-1980,when she is said to have gone away leaving the child behind.The wife of course denied that she ever left the house inMarch 1978. Her case is that she was turned out of thehouse on 19-3-1979. She says the child remained with herat her parent's house when she was brought back by thehusband on 9-7-1979 and stayed on with the husband till8-5-1980, when she was turned out of the house. Her casefurther is that she was brought back to the house on 1-3-1981but was again driven out on 4-3-1981. The husband deniesthis and rather maintains that she Along with her parentscame to kidnap the child and even a police report waslodged by his younger brother. On 4-3-1981 the appellantalso put in a police report and also got herself medicallyexamined.

(3) By 24-3-1981 the husband moved an application fordivorce. That application is still pending and has beenadjourned sine die, because the husband/respondent hadfailed to pay the maintenance pendentelite which has beengranted by the court below. The divorce has been askedfor on the ground of cruelty, desertion and unsoundness ofmind. By 5-5-1.981 the present application under Section 7 and 25 of the Guardians and Wards Act and under Section 6 of-Hindu Minority and Guardianship Act 1956 was movedpraying that she be appointed as a guardian of the personof the minor and that respondent be directed to hand overthe custody of the minor to the appollant. The courts belowhave dismissed her application and that is why the presentappeal.

(4) The matter came up before us a number of times andultimately the parties had agreed on how the custody of thechild was to be given between the two of them and aboutthe educational need of the child. The appellant, thereforee,did not press her appeal on merits, and the appeal was disposed of in terms of the agreement between the parties byour order of 21-5-1982. Unfortunately that agreement wasnot seen through. The appellant moved an applicationbeing C. Misc. 114011982 that as the respondent is notcarrying out the terms agreed upon the order be recalledand appeal heard on merits. Though the respondent deniedthat he was responsible for not carrying out the terms ofthe agreement, his counsel Mr. S. K. Bhatia did not opposethe recalling of the order of 21-5-1982, that is why werestored the. appeal and heard it on merits today.

(5) A preliminary objection is raised by the counsel forthe respondent as to the competency of the appeal in factto the competency of the very application moved by theappellant. Mr. S. K. Bhatia says that admittedly the childwas in the custody of the respondent the natural guardian.when the application was moved by the appellant, and thereforee urges that in application under Section 25 of Guardiansand Wards Act, custody cannot be given to the appellantbecause of prohibition of Section 19(b) of the said Actwhich says that nothing shall authorise the court to............ appoint or declare a guardian of the personof a minor whose father is living and is not in the opinionof the Court, unfit to be guardian of the person of the minor.The contention being that so long as the father is alive thereis no question of any one else being appointed a guardianbecause Section 19(b) is a complete prohibition, He soughtto refer us to a number of authorities which apparently havetaken the view that in view of Section 19(b), in the presenceof the father no one else can claim custody of the childnotwithstanding that the court may be of the opinion thatit is for the welfare of the minor that some other personshould have the custody of child. We feel that these arguments are of no avail in view of Rosy Jacob V. Jacob : [1973]3SCR918 wherein it was observed that, 'thecontention that if the husband is not unfit to be the guardianof his minor children, then the question of their welfare doesnot at all arise is to state the proposition a bit too broadlyand may at times be somewhat misleading. 'In our opinionthe dominant consideration in making orders under Section 25 is the welfare of the minor children.' The court hasclearly stated that the controlling considerations governingthe custody of a child is the welfare of the child concernedand not the right of the parents, and further 'the father'sfitness has to be considered, determined and weighed predominantly in terms of the welfare of minor children in thecontext of all the relevant circumstances. If the custody ofthe father cannot promote their welfare equally or betterthan the custody of the mother, then, he cannot claimindefeasible right to their custody under Section 25 merelybecause there is no defect in his personal character and hehas attachment for his children which every normal parenthas'. The Supreme Court has also slated in para 15 thatto the extent that the view taken by them of Section 25 ofthe Guardians and Wards Act runs counter to any of theauthorities they must be held to be wrongly decided. TheSupreme Court held the minors' custody should be with themother and not the father. This view was reaftirmed inThirty Hoshie Dolikuka V. Hoshiam Shavaksha Dolikuka : [1983]1SCR49 . Reference may also be madeto S. K. Chaudhary V. Smt. Satirani : AIR1969Cal573 where noticing Section 19 and even holding thatthe father is not unfit to be a guardian it was held thatbecause of Section 13 of the Hindu Minority and Guardianship Act the prime and sole consideration will be the welfareof the minor and Section 19 of the Guardians and WardsAct will, thereforee, have to be read subject to Section 13 of the Hindu Minority and Guardianship Act so far asHindus are concerned. Reference may also be made toLalita Prasad V. Ganga Sahai where also the learned Judge after noticing section 19 of theGuardians and Wards Act and Sections 2 & 13 of the HinduMinority and Guardianship Act held that construing themtogether the rigour of prohibition contained in clause (b)of Section 19 of the Guardians and Wards Act must beconsidered to have been relaxed to a considerable extent inthe interest of minor's welfare as laid down in Section 13 of the Hindu Minority and Guardianship Act.

(6) Reference by Mr. S. K. Bhatia to Dr. SudershanKumar V. Dr. (Mrs.) Satish Arora & another : 1974RLR299 is of no avail. As a matter of fact IF anything the observations in this case go against him,because at page 891 the Bench has reproduced some of theconsiderations for the appointment of a guardian and hascategorically stated that the well being of an infant is aparamount consideration (as distinct from the same beingsubordinate to the parents) in the sense of the same notbeing the sole consideration but the paramount consideration,other considerations being subordinate. And the mere desireof a parent to have his children must be subordinate to theconsideration of the welfare of the children. In that casethough both the mother and the father were highly qualifiedmedical practitioners the child was allowed to go and livewith the inother in America, notwithstanding the contentionthat the child was being sent to a different cultural atmospherethan India. Mr. Bhatia referred us to Ram Chandra v.Annapurni Ammal : AIR1964Ker269 whichheld that under Section 25 the mother cannot be given thecustody of the child, a ratio obviously erroneous because itruns counter to the Supreme Court decision in Jacob's case(supra.). In Ram Singh v. Lila Devi (1969) V. D L T 619 in an application under Section 25 the mother was held not entitled to custody of the child asthe child was in the custody of the guardian i.e. the father.It is however, significant that it was clearly stated thereinthat the mother could make an application under Section 7 for being appointed a guardian of a person of the minor andmay then claim for the return of the minor to her custodywhich can be granted to her if it is for the welfare of theminor in the opinion of the Court. This authority also acceptsthe welfare of the minor as of paramount consideration.All these arguments basing on Section 25, apart from beingwithout merit as shown above ignores the patent fact thatthe application moved by the appellant is also for theappointment of the guardian under Section 7 which empowersthe court where it is satisfied that it is for the welfare ofa minor that an order should be made appointing theguardian of the person or property of the child. It was noteven disputed by counsel for the respondent that it' appellantis appointed as guardian of the minor, the custody of thechild can be given to her. The preliminary objection,therefore, fails.

(7) Now as to merits Mr. S. K. Bhatia the learned counselfor the respondent contended that the mother had of herown left the child in the custody of the father, and thatshe was an unnatural mother having no affection. Hecomplained that since 8-5-1980 when she left the house shemade no effort to find out about the welfare of the child tillMarch 1981. The appellant denies and has stated that shewent to the house of her husband on 11-5-1980, but wasturned away. We cannot find anything unusual in theappellant having waited to move the present applicationonly after the respondent had moved an application fordivorce. The reasons are not far to seek. It would benormal for her to hope that just as she had been drivenout before but had been taken back she might still be broughtto the husband's house and would be with the child. Thein-built dread of Indian wife to break the marriage is sogreat that she is willing to put up with the greatest ofindignities. That can only explain why in spite of bitter andmiserable experience she has repeated before us even todaywhat she had stated in her evidence that she was still readyand willing to stay with the respondent. The helplessnessand the awe of social custom of an Indian woman who hasbeen deserted by the husband cruelly but still wants to goback may not be capable of rational Explanationn but is actualstark reality. Arguments based on the concept of modernwomen are totally out of focus when examining the life styleof a lower middle class married woman. The husband isnot agreeable for reconciliation in a male dominated societyhe has an advantage. That is why the question of appointinga guardian has to be decided in these proceedings. Thecounsel for the respondent's contention that whenever theappellant had gone out of the house of husband she hadnever cared to take the child with her is without merit andagainst record. It is true that the respondent has stated inhis evidence that the child stayed with him when she leftthe house in March, 1979. But this is a false statement.A reference to Ex. Public Witness 9|2 dated 19-3-1979 which (a reportlodged by the appellant in the Police Chowki) mentionsthat she was not being allowed to see her parents by herhusband and her in-laws and she also stated that they wereasking and complaining that dowry was less, and that theyhad also beaten her earlier and that she got herself examinedmedically. What is important to note is that on this reportin the endorsement of action by the police it is clearly mentioned that her child Sonu who was a small kid was givento the mother by the Police after this report was given. Thisobviously negatives the respondent's case that the child waswith him when she was driven out of the house in March.1979. As mentioned before from July, 1979 she was againback in the husband's house. The husband obviously wasrankling at the police report which was lodged earlier. Thatalone can explain the existence of a letter purported to havebeen written sometime in July, 1979 by the appellant toher father (Ex. D-7), which we have no doubt was writtenunder the pressure of the respondent as indeed has beendeposed to by the appellant. But even this letter mentionsthat when after coming to her husband's house on 9-7-1979,she sent her husband to bring the child from her father'shouse they refused to send the child hack and her telephoneshad no effect and that she had to get the child back by gettingthe assistance of Police. Whatever the circumstances inwhich this letter is written, it does show that the child waswith the mother when she went out of the husband's house,for all these months. It is not thereforee, correct for thecounsel for the respondent to urge that the appellant hasno sensitivity or affection for the child. This letter wasalso naturally relied upon by the counsel for the respondentto urge that the real mischief makers are the parents of theappellant. A bare reading of the letter shows the unnaturalcontents because the type of abuse showering, and blamingher parents can only be understood in the context of theappellant a poor helpless woman who is trying to please her'Lord' a 'Master' the 'husband' and his family even at thecost of making reckless allegations against her own parents.We can find no reason what the parents of the appellantwere to gain by spoiling her marriage considering that shehad not property of her own nor were the parents of theappellant in any way dependent on her financially. Wecan only describe the letter got written by the husbandas a crude and undeserving attempt to create evidence.This is more so, because the letter is typed and copies aresent to all the relations obviously to publicise it. Similarlythere is another letter of 8-5-1980 which again is addressedto no one in particular excepting it contains the statementsigned by the appellant that she had gone to the Hospitalwith her child and that she does not now want to stay inher husband's house nor does she want to take the childand she was going to her parent's house now. This letterwas produced in evidence and sought to be proved by theevidence of R.W.7, who says that the appellant came to hishouse and delivered this letter. This witness also provesa letter claimed to have been written on 27-3-1978 in whichagain the appellant is stated to have written that she wantsdivorce from her husband and that she does not want thechild and is leaving him behind and has no relationship withthe husband's family. Both the times according to this witness she came to his shop, left the child with him and theletter. It is hard to understand why this clumsy, senseless.device should have been adopted by the appellant if shewas keen to walk out and that too without the child. Onewould have thought that the simplest thing was just to walkout if she was not to take the child who would be at homewith his grant parents. It is not the case that because therewas no body at the house of the husband with whom thechild could have been left. We are convinced that theseletters were got written under pressure to create evidenceto show that she did not care for the child. We have shownabove how this story of child having been left behind in 1979is untrue. Here is a woman who had been driven out of thehouse and whenever she came back she was pressurised towrite such letters. Wanting a matrimonial home, she hadno alternative but to accede to the husband's directive. The argument, thereforee, that the appellant is not entitled to askfor the custody of the child and to be appointed as guardianof the child because she had given up the child on her ownand had no love for him, has no foundation and must berejected.

(8) There of course still remains the question as to whatis for the welfare and in the interest of the child. It will beseen that the application was moved by the wife in 1981,the child was then about 3.5 years. Section 6 of the HinduMinority and Guardianship Act which provides that thenatural guardian of a Hindu minor shall be the father andafter him the mother excepts by the proviso that the custodyof the minor who has not completed the age of 5 years shallordinarily be with the mother. The tenderness of the ageoverwhelmingly requires the maternal affection. The factthat the usual vagaries and delays of the litigation have ledto a situation where the child is now probably a few daysover 5 years (though was 4.5 years had the matter beendecided on merits on 21-5-1982, but for the agreementwhich did not ultimately materialise) cannot obliterate thefact that at the time when she moved the application thechild was just over 3 years. Even if the child is now alittle beyond 5 years is no reason by itself to ignore thefactum of tenderness of the age of the child and other relevant circumstances. The important circumstance in thiscase is that the father is a young man who is naturally busywith his business. That the respondent is financially andcomparatively more afiluent than the appellant admits ofno doubt. The fact is that the father has admittedly toremain busy with his work the whole day and evidentlycannot bestow personal affection and personal care on thechild throughout the day. There are of course the grandparents who are at home and could possibly look after himand might be conceded that in the normal course wouldhave usual affection for their grand child. But one veryimportant aspect which has come in evidence is that unfortunately the father as well as the grand parents are of verylow literacy. The husband has stated that he has studiedup to Higher Secondary. The grand parents are illiterate.The appellant is a graduate. Not only that she is also doingthe teaching job in Manavsthali School. A certificate tothis effect was shown to us and which shows her as havingbeen teaching in the school up to March, 1983. Appointments are made for a year at a time, and that is why thecertificate is in this form. Counsel for the respondent Of course draws our attention to Order 41 Rule 47 of the Codeof Civil Procedure and says that if we wish to refer to thisfact it must be proved as the documents are proved byevidence. He also sought to suggest that this must be doneby giving him opportunity. So far as the later aspect isconcerned we may mention that this document was producedbefore us months back at the time when the appeal wasdisposed of on the agreement of the parties. In the termsof the agreement of the parties it was stated by the appellantthat she was teaching in the Manavsthali School and shewould get the child admitted there. The respondent hadagreed to this. Obviously the respondent accepted thatthe appellant was a teacher in the school and could useher influence to get the child admitted. All the time therespondent had proceeded on the basis that she was teachingin the School. As a matter of fact even in the matter offixation of maintenance in the divorce petition filed by thehusband, the later had got the order that he was to payRs. 600 p.m. instead of Rs. 1000 p.m. from the day theappellant had started drawing Rs. 400 pay as a teacher.The objection seems pointless when it is not suggested evenhalf heartedly that the statement of the appellant that sheis teaching in the School and the certificate is from theSchool is in any way wrong. This aspect is importantbecause as the Supreme Court says in Jacob's case (supra.)that court has to see primarily to the welfare of the childrenin determining the question of custody in the backgroundof all relevant facts having a bearing on their health, maintenance and education (para 14).We are saying this because the child is now at an age wheneducation. is the uppermost consideration. No doubt thechild has to be fed and his physical requirement must belooked after. Physical requirement was the argumentwhich the counsel for the respondent put in the foremostby drawing the 'classical' illustration of deprivation tochild of eating a chocolate ice cream costing Rs. 10 (314 ofthe appellant's salary for a day) if the child was given tothe mother. We would have thought that if the child doesnot get a chocolate ice cream every day, he would only beavoiding physical indigestion but at least getting intellectualfood, while the deprivation of proper education but richfood will only give him bad liver and poor mind. Surely inthe world of competition mental and intellectual equipmentmust overwhelm other consideration. It is also not as If the appellant can not give the child reasonable physicalcomforts. She might even be in a position to give himthe chocolate ice cream if the respondent who is showinghis solicitude for the physical comfort of the child was onlyto carry out the count's order by paying regularly the maintenance allowance. We hope that considering that we intendto give custody of the child he will not cavil at carrying outhis legal obligation. The absence of proper education cando permanent damage. The schooling of the child doesrequire most of the home work to be done with the assistanceof either or both parents but necessarily requires one of theparents to devote lot of attention to the child's education.These days it is common to find even educated fathersdevoting time to child's home work. In any case the motherif she is literate is compulsorily bound and tied to be devotingtime to the child after school hours. Absence of home helpwill seriously hinder the development of child's studies. Hadthe parties been living together it is the mother who alonewould have had to do this duty. In the present case, thereforee, the child will be completely deprived of any help thathe necessarily requires for his education development if helives and remains under the guardianship and custody ofthe respondent father. We feel, that the child, who is atthe start of his educational career requires a home and anatmosphere of education, literacy, which he can only haveunder the custody and guardianship of the mother, considering her academic qualifications and especially that she herself is in teaching line and thus will be able to give himthe necessary guidance, the help which a small child wouldneed.

(9) We are not suggesting that the father is not keenthat the child should have the best of the education andwe have no doubt that if the respondent|father puts fortha proposal to put the child in the best of school there wouldbe no objection by the appellant provided that the necessaryexpenses are borne by him. But the custody must be withthe mother.

(10) It is well settled that the welfare of the ward is apre-eminent factor and consideration in deciding the matterabout the guardianship and custody of the child and in thatcontext the conduct of the parties has also an importanthearing, See Re : F. (an infant) (1969)2 All. E.R. 766(8).In the present case an aspect of the conduct of the respon-dent has been highlighted which does not show him in aflattering situation. The respondent has stated in the evidence that on one day he had come to the High Court andhad seen his wife Along with a man. According to him theyhad gone to Lodhi Garden, then to a Hotel, obviously suggesting adulterous conduct on the part of the appellant.He had even produced a witness to support this version.This allegation had been found to be false by the trial courtand the learned single Judge. This finding would show thereckless disregard for truth and an attitude of mind whichin order to support his case will even stoop to making anyscandalous and unfounded allegations against his own wifeand inother of his child. It also shows the lack of sensitivities of the character and the temperamental instabilityin the respondent father. It is well settled that in matrimonial cases allegations of unfounded adultery have beenheld to amounting to cruelty, and one may be justified insaying that there is a streak and element of cruelty in thecharacter of the respondent. Whether this should amountto the unfitness of the respondent as counsel for the appellantsuggested, it atleast shows him worse in comparison withthe appellant, who has not resorted to making any wildallegations against the husband. On the contrary theappellant who is well read lady and has shown commendablefortitude and patience notwithstanding these provocativeallegations and has in the larger interest of the child's welfare even agreed to go back to the husband. Not only thatbut even when in May, 1982, when the parties were talkingof compromise in these proceedings it was the wife whohad offered that as she was more keen that the child shouldget proper education at proper age and had for that purposebeen willing to forego her rights of guardianship providedthe matter was settled in a satisfactory manner in the interestof child's education. That did show the consideration anda sense of subordinating her own personal interest to thehigh interest and welfare of the child. On that view alsothe scale must tilt in favor of the appellant|mother.

(11) In this matter of guardianship and custody one hasalso to consider what was mentioned in >1969 (2) All.E.R. 766 what sort of father substitute or mothersubstitute the child will have. It is apparent that if thechild was to remain with the father there will be no mothersubstitute since the presence of the grand mother will notbe at all the mother substitute because she being old andilliterate lady may overwhelm him with sentimentality andemotion and the child may have lopsided developmentdivorced of practical realism. The appellant is living withher brothers who also have family and children and thechild, thereforee, will have the company of children of hisown age and will also have the love of his uncles and whichto some extent will satisfy the emotional need of the childfor father-substitute. Since the mother is working lady IN a school she will be able to guide the child in education.It is well recognised that the young children have greaterneed for the mother rather than for the father, more so whenon comparative merit the appellant is able to satisfy theeducational and cultural needs of the child because of vastdifference in respective mental equipment.

(12) In arriving at a conclusion that the custody shouldremain with the father the learned single Judge was persuadedmainly by three factors; one that the financial superiorityof the respondent father was overwhelming. The learnedJudge also had doubts whether the appellant had any jobat all because the teaching job which she was supposed tohave was expiring in a couple of months. Of course so faras the overwhelming financial superiority is concerned thereis no doubt that it rests with the father, but that the appellantis not without a job is established because we were shownthe certificate and Mr. Bhatia counsel for the appellantmade a statement at the bar that the mother was having ajob which admittedly goes up to next year and in the normalcourse would also be renewed. To refuse the guardianshipand custody of the child simply on the ground of lesserfinancial strength than the father would non-suit almost90 per cent of the mothers, and reduce the criteriaof welfare of a minor not to be judged by the higher valuesbut solely by the cash nexus a situation totally unacceptable.The second reason which weighed with the learned singleJudge was that he found that when the mother tried to talkto the child he was reluctant and appeared to be quiteattached to the father. We can understand the initial hesitation of the child to go to the mother considering that thechild had been with the father ever since 1980. For theperiod in interval the mother is not at fault because afterhaving failed in reconciliation her application moved inMay, 1981 has had to pass through various viccissitudesof litigation. At the time she moved the application thechild was just over three years and if the wheels of litigationhad moved quickly and correctly the child would have beenwith her long time back. But nevertheless in order tosatisfy ourselves that the child would rot suffer the psychological and emotional upset if he was given to the motherwe had during the process of hearing spread over for monthsrequired the child to be produced in court. We had onthese days permitted the child to spend some time with themother away from the company of the father and the grandparents separately in the court compound. We were satisfiedto find that after one or two days of familiarisation the childwas found playing with and responding to the mother IN a normal manner. This has given us reassurance that bygiving the custody of the child to the mother he will notsuffer any emotional upset as the child had got used towith the mother in a very short time. Both these reasons,therefore, which persuaded the learned Judge to give custodyto the father are unsustainable. The learned Judge alsohas held that on 8-5-1980, the appellant left of her ownaccord leaving the child behind. We have already heldabove that a similar stand of the respondent that she hadgone away in 1979 leaving the child behind is untrue. Wehave given reason for holding that letter of 8-5-1980 isunnatural and was forced. We must, thereforee, differ withthe finding of the learned single Judge.

(13) We, thereforee, are of the view that both in theinterest and for welfare of the minor and on a considerationof the comparative merits between the mother and the father,guardianship and the custody of the child should be givento the mother. We are convinced that it will be in theinterest of the child and welfare if the appellantis appointed guardian of the person of minor, and we herebydo so order. We do realise that in these matters a difficultchoice has to be made because the custody of one parentnecessarily denies the other the company of the child formost of the time but then when parties are unfortunatelyunable to live together or do not wish to live together andeven the common affection for the child is not enough topersuade them to sink their own differences and live togetherthe court is left with no alternative but to seek to decidethe question of guardianship and the custody of the childkeeping in view the over all consideration and welfare ofthe minor. We can also accept that it is not easy to definethe precise considerations that would be the determiningfactors with regard to the competency of each parent to beappointed the guardian of the minor and have his custody.This situation may pose problems but then we can find solacefrom what was said by Megarry in Re. F. (An infant) F V V1969 2 Ch. Div. 238 and whichwas referred to with approval in Dr. Sudarshan Kumar AroraV. Dr. (Mrs.) Satish Arora and another 1974 1 Delhi 885 ; 'If it is objected that this formulationdoes little to define or explain the process, I would replythat it is precisely a process such as this which calls forthe quality of judgment which inheres in the Bench, andI this is a quality which in its nature is not susceptible ofdetailed analysis. There is a limit to the extent to whichthe court can fairly be expected to expound the processwhich leads to a conclusion not least in the weighing ofimponderable. In matters of discretion it may at timesbe impossible to do much more than ensure that the judicialmind is brought to bear with a proper emphasis, on allthat is relevant to the exclusion of all that is irrelevant.'

(14) As a result we would set aside the orders of thecourts below and appoint the appellant as guardian of theperson of child Sonu whose name is Pawan Kumar.

(15) As we have now appointed the appellant as guardianof the child it is apparent that the custody must also begiven, to her. The child is at present with the respondent.We would, thereforee, direct the respondent to bring thechild to the court on 15-12-1982 at 10.30 A.M. when thechild will be given to the appellaiit. Of course notwithstanding that the appellant has been appointed as a guardianand the custody is being given to her, the respondent shouldnevertheless have proper access to the child, the being thefather). We do not wish to put the child in a situationwhere he should not have either the paternal or the maternalaccess denied to him completely.

(16) We are also keen that the education of the childshould not suffer. If the mother is able to get the childadmitted in Manavasthali School either at Rajinder Nagaror Pusa Road the child may be shifted there after taking carethat this does not mean a break in his education. But solong as the admission is not available in the said schoolsthe appellant will see that the child's education continues inthe school where he is studying at present. This is necessarybecause we do not wish that the child's education suffersbecause that has been one of the main considerations itgiving the guardianship and custody to the mother.

(17) As a result of the above, the appeal is allowed asabove, the judgments of the courts below are set aside andthe application of the appellant is granted. There will beno order as to costs.


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