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Gore Lal Vs. Santosh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 994 of 1984
Judge
Reported in27(1985)DLT304
ActsGuardian and Wards Act, 1890 - Sections 7; Code of Civil Procedure (CPC), 1908 - Sections 115
AppellantGore Lal
RespondentSantosh
Advocates: V.P. Prabhakar,; M.S. Yadav and; S.P. Kaira, Advs
Excerpt:
.....for handling over the child's custody to the mother - in the instant case the trial court allowed custody of children to the mother, who were of tender age - the father was a business man and had long working hours - the daughter was not feeling well and thus the mother could better look after her in her ailment - the court considered the facts of the case and held that there was no reason to interfere with the order of the court. - - the custody of child and his welfare has not to be considered in the context of the defaulting spouse unless there are circumstances of adulterous life, specific instances of cruelty to the child and like that. in the present case, none such exceptional circumstances have been so far high lighted. it is as such contended that they can well look after the..........the other for the time being. the same would not essentially reflect lack of affinity to the other parent as time factor plays its part, and a parent who has not the custody of the child, is not likely to be looked at with that attachment as the parent with whom the child happens to be for the time being. the court has still to look to the overall welfare of the child.(3) the parties in the present case were married in the year 1963, and the wife started residing with the husband from 1972 after what is called the 'gauna' ceremony. there have been three children out of the wedlock. two are with the husband, and their ages are 3 and 6 years. the third is an in fact, and is at present with the wife.(4) it is not for this court in these guardianship proceedings to comment upon the merits of.....
Judgment:

D.R. Khanna, J.

(1) ADMIT.

(2) Custody of minor children when the matrimonial home has broken, gives rise to poignant situations. Naturally both the parents want to retain the children because of their attachment with them. The children also develop affinities and their emotional aspect can also not be lightly ignored. However, where children are of tender ages, the emotional attachment may be the result of being in the company of one parent or the other for the time being. The same would not essentially reflect lack of affinity to the other parent as time factor plays its part, and a parent who has not the custody of the child, is not likely to be looked at with that attachment as the parent with whom the child happens to be for the time being. The court has still to look to the overall welfare of the child.

(3) The parties in the present case were married in the year 1963, and the wife started residing with the husband from 1972 after what is called the 'Gauna' ceremony. There have been three children out of the wedlock. Two are with the husband, and their ages are 3 and 6 years. The third is an in fact, and is at present with the wife.

(4) It is not for this Court in these Guardianship proceedings to comment upon the merits of the matrimonial disputes between the parties. Already litigations in that regard are pending and they will receive adjudication in due course. The custody of child and his welfare has not to be considered in the context of the defaulting spouse unless there are circumstances of adulterous life, specific instances of cruelty to the child and like that. In the present case, none such exceptional circumstances have been so far high lighted. Without, thereforee, commenting upon which of the two spouses had been responsible for the break down of the matrimonial home, the custody of the children has to be independently adjudged.

(5) The learned trial court has allowed the custody of the children to the mother, and this appears to be correct. The children are both of tender ages, and they can be properly looked after by the mother. They need for constant attention, affection and guidance. The father is in business and has long working hours there. It is stated from his side that he has four sisters residing with him, and two of them are of the ages 16 and 14 years. It is as such contended that they can well look after the children. There should be no reason to.deprive the mother of the custody of the children in reference to their being looked after by the father's sisters.

(6) At the last hearing, the custody of the three years old daughter was directed to be given to the mother. This has not so far been complied with. It is unfortunate. The ground given has been that the girl has not been feeling well, and in support a medical certificate was produced. In case the child has been ill, this is all the more reason for her custody being allowed to the mother. She can better look after her in her ailment. The father, of course, is free to provide medical and other financial assistance for the treatment of the child.

(7) Another ground taken has been that although the original petition filed in the trial court was under Sections 7 and 25 of the Guardians and Wards Act (hereinafter called to be the 'Act') the petitioner's mother withdraw her claim under Section 7 of the Act as it was found that requirements of Section 10 of a declaration that she was willing to act as guardian and the attestation of such declaration by two witnesses was not complied with. Now that application is being pursued under Section 25 of the Act which entitled a guardian to the custody if the minor has been removed from or leaves his custody.

(8) I will not like to comment upon the withdrawal of the claim under Section 7 of the Act, as the matter is said to be still pending before the trial court. Ex facie when the mother applied for guardianship, it had the implication of the declaration that she was willing to act as guardian. The technical requirement of attestation by two witnesses, of course, remained there, but this should not essentially have proved fatal as such technicality can be required to be complied with subsequently as well. Be that as it may, even under Section 25 of the Act, the custody can still be allowed to one of the parents.

(9) Considering the totality of these circumstances I find no reason to interfere in the impugned order of the trial court. The revision petition is accordingly dismissed.

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