Yogeshwar Dayal, J.
1. This revision petition is directed against an order of learned trial court dated 21st October, 1982 whereby the learned trial court declined the application of the petitioner (mother) of the interim custody of her only minor son who is at present in the custody of Sh. Santosh Kumar, elder brother of the deceased father of the minor child.
2. It appears that the petitioner, Smt. Usha Gupta was married to one Shri Pushpendra Kumar in February, 1972. Unfortunately Shri Pushpendra Kumar died in October, 1974 at Saharanpur due to an unfortunate accident. It was only in December, 1974 that this unfortunate minor son was born to Smt. Usha Gupta, the petitioner.
3. It was stated in the application for appointment of guardian that the child was born at Meerut where Smt. Usha Gupta was staying with her mother-in-law and father-in-law. Since Smt. Usha Gupta became widow before the birth of the child, she stayed with her in-laws for sometime and thereafter shifted to Delhi to her parents' house. She was very young and she got herself admitted to a Degree course of Bachelor of Teaching with the Kurukshetra University in a town in Haryana. While she was studying for the aforesaid course the child was staying with the maternal grand parents in Delhi and she was visiting Delhi every month regularly to meet the child. When the child reached the age of about 3 years, in February, 1978 he was put into Cathedral Nursery School in New Delhi. The child studied in that school under the care of his mother till December, 1978.
4. It was then averred in the petition that on persuasion of her parents and also of her in-laws, she married a gentleman in November, 1978 and left with her husband for Tanzania in January, 1979 and in February, 1979 the child was left in the care of her paternal grand mother at Meerut. The petitioner, Smt. Usha Gupta, came back to India in November, 1979 itself as somehow she could not live with her husband and has since November, 1979 been living with her parents separately from her second husband. Since November, 1979, the petitioner has been knocking at the doors of in-laws for getting back the custody of her minor son. When the efforts of the family did not bear fruit she had to file an application under Section 25 of the Guardians and Wards Act for the custody of her only minor son. This application was filed in August, 1980 at Meerut. The application had to be filed at Meerut because it was there she had left the child with her first mother-in-law i.e. the grand-mother of the child. While the proceedings were pending for custody, Shri Santosh Kumar, the elder brother of the deceased Shri Pushpendra Kumar, filed a suit for injunction at Saharanpur restraining the petitioner (mother) from taking custody of the child and obtained interim-orders from the Saharanpur Courts for the maintenance of status quo and thus retained the custody of the child.
5. It appears, that in view of certain proceedings before the Supreme Court, the Supreme Court transferred all the proceedings to Delhi and now both the application for custody filed by Smt. Usha Gupta and the suit filed by Sh. Santosh Kumar are pending in Delhi. Both the proceedings were pending for number of years without any result and the petitioner Smt. Usha Gupta was forced to file the application for interim custody of her child.
6. The learned trial court after talking to the minor aged about 8 years felt that the minor was greatly attached to his uncle Shri Santosh Kumar and his aunt (wife of Shri Santosh Kumar), who have no child of their own and in view of this attachment declined to pass any order for interim custody in favor of the mother. The trial court instead directed that the uncle will bring the child to Delhi at every date of hearing so that the mother will be ina position to see the child at the time of hearing. It is this order which has been impugned before me in revision.
7. It will be noticed that though the child was born after the death of father in December, 1974 yet the child lived with his mother till she left for Tanzania after second marriage. Thus the child was with the mother from December, 1974 to practically January, 1979, i.e. the child was with the mother for the first four years and as soon as she came back from Tanzania she wanted custody of the child and was driven from piller to post and was forced to file an application for custody though she happens to be the natural guardian.
8. From August, 1980 we have reached to February, 1983 and by usual delays of the courts nothing has been decided so far in the custody proceedings. It is a very sad state of affairs.
9. It will be noticed that the mother Smt. Usha Gupta, though she had been re-married, has been living separately in Delhi from her husband Along with her parents and this appears to be the situation prima facie right from the time she came back from Tanzania and by the various processes of the courts valuable time of more than three years have been wasted.
10. Today the child has just completed about eight years and for the last three years the child is being looked after by his uncle Shri Santosh Kumar, who happens to be a Senior Government Officer of the status of Superintending Engineer. The mother is teaching in a School in New Delhi. Shri Santosh Kumar is posted at Kalagarh (U.P.) and the child is studying there in an unrecognised private school in IIIrd Standard.
11. The mother who is natural guardian has been thus deprived of the custody of her child for more than four years and if today the child is asked about his wishes, apart from knowing that the petitioner is his mother he does not have the same attachment for the mother as a normal child. The mother has lost his affection because of the conduct of Shri Santosh Kumar in refusing to give custody of the child to her mother when she came back from Tanzania. For three years he succeeded in keeping the child away from the mother, consequently the lack of attachment for her mother in preference to the uncle and aunt.
12. The child is a very tender soul and is hungry for love. Who so ever gives love to the child, the child gives love and affection in return. This will be true whether the person looking after the child is domestic servant or a grand mother or uncle or aunt or anybody else. We are not concerned in this case with the love and affection of Shri Santosh Kumar and his family viz-a-viz this child. The trial court was greatly impressed by the wishes of the child. It will be noticed that at this tender age the child is incompetent of having rational judgment. Merely declining the custody to the mother because of the wishes of the child is thus not proper. If the child is grown-up child of about 15-16 years the matter would have been different when the child may have greater faculty or quality for rational judgment but a child of eight years has no such capacity. He has been looked after by the uncle and aunt for the last three years and thereforee the child has attachment with uncleand aunt as opposed to the mother. Would that be the proper test for determining such question
I am afraid not.
13. The mother has by no law lost her natural guardian-ship The only circumstances against her was of second marriage That appears to have broken down and since November, 1979 she is living separately from her second husband with the parents and is working as a teacher.
14. I have also applied my mind to the factor that the studies of the child may be disturbed. But looking at the type of school where the child is studying I do not think that loss will be so great as the loss of a child who had already lost his father and will also loose his mother
15. I even enquired from the uncle and aunt, who were present, as to when the final examinations are going to commence. First they stated that do not know. On repeating the query, the aunt said the examinations will be probably in May. On further query by me the uncle said that probably the examinations would commence in April. The replies of uncle and aunt atleast indicate the amount of interest they are taking in the proper education of the child.
16. I have already observed that the child is studying in an unrecognised school and I am sure the mother, who is a teacher, can look after the education of her child in Delhi by admitting him in a proper school and she herself being a teacher would be in a position to make up the loss in the studies of the child because of change in the school.
17. I have also thought about the interim arrangement whereby the grand mother or the uncle or aunt, if they so wish, can meet the child in Delhi. The uncle is posted at Kalagarh and it would be impossible for the mother to take the child occasionally to Kalagarh though it may be possible for his uncle, aunt or grand-mother to visit the child for whom they claim so much affection as and when they wish to see him.
18. I also thought that the child may be put in a boarding school where the mother, uncle, aunt or grand-mother can visit the child with the permission of the school authorities but this was with the idea of avoiding litigation but it appears to me that the child is too tender to be put in a boarding school at this stage merely for avoiding litigation.
19. Mr. B. Mohan, learned counsel for the respondents, submitted that the Hon'ble the Supreme Court while transferring the matters to Delhi had made observations that 'the Delhi Court will take into account all the facts and laws before deciding the cases.' I do not find any law which disentitles the mother as natural guardian to claim the custody of her minor son. The only circumstance against her is the second marriage. Since the second marriage had also broken in a short period and the mother has been living in Delhi since return from Tanzania with her patents, this circumstance alone would have no adverse impact. Mr. B. Mohan then submitted that this Court should not interfere in revision with the discretion exercised by thelearned trial Court. So stated, the objection seems to be unassailable. But here while judging the rival claims the learned trial court was swayed mainly by the wishes of the child which I have noticed earlier. The child is too tender that he is incompetent to make any rational judgment about his future. Since all these circumstances which the Court is required to take into consideration were not taken into account, the finding of the learned trial court gets vitiated in law and it amounts to failure to exercise the jurisdiction vested in the trial court and this it is a fit case for interference by this Court in exercise of the revisional jurisdiction.
20. I would accordingly set aside the order of the trial court and direct the respondents to place the child in the interim custody of the mother immediately but with the condition that both the uncle and aunt or the grand mother will have the right to visit the child as and when they wish and they will also be free to give any financial assistance which they would like to give in view of the attachment for the child which I am sure the mother will not decline.
21. In view of my order the uncle and aunt arc feeling very sorry about it but they have placed the child in the custody of his mother.