(1) The delicate question that arises for decision in this appeal is as to who out of the two contending parties should be given the custody of the male child named Raghubir Singh nick: named 'Happy' aged 10 years. The contest is between the maternal grand parents and the father. The. trial Judge has given the custody to the father. The maternal grand parents have come in appeal.
(2) The respondent herein Manjit Singh Marwaha was married to Harjit Kaur (daughter of the appellants) on 15th August 1973, The couple was blessed with a son on 16th August 1974. The parties separated on 17th August 1975. There is no clear evidence regarding the causes of the rapture in the married life of the couple. The father filed a petition for restitution of the conjugal rights and according to him on the assurance given by the father of the wife that he would send Harjit Kaur he withdrew that petition but the wife did not return to the marital home. The respondent (husband) filed & petition for divorce which was granted by an Additional District Judge on 28th August 1980.
(3) The case of the appellants is that at the time of the marriage the respondent was unemployed and he had deserted the wife. Smt. Jaswant Kaur, the mother of the wife, gave evidence that after the marriage the respondent took the wife to Bombay, that after staying at Bombay for about 9 days they returned to Delhi and resided at Wazipur for about 3 months, and thereafter both of them came to their house, that the petitioner was not employed at that time and they helped the petit ioner to get a job at Plaza Cinema, and that thereafter for some time they lived in block No. 11, Rajouri Garden.
(4) The respondent (husband) gave evidence that after the birth of the child the wife started behaving rudely towards him and she would often quarrel with him, that she left the matrimonial home, in the absence on 19th September 1975 along with the child, that he did his best to bring her back but the parents refused to send her. The respondent further stated that he waited for about six months for the wife to come back but he received a letter from her saying that she is not willing to live with him. He further deposed that his wife had illicit relation with some one living in the vicinity of the house of her parents.
(5) On an examination of the pleading and the evidence produced on the record, as earlier stated, it is difficult to discover the real cause leading to the unhappy ending of the marriage. The undisputed facts are that after obtaining divorce on 16th August 1980 the respondent remarrid on 12th October 1980 and from the second marriage he has a daugther (now aged 2 years and 8 months). The respondent was employed as an Assistant Cashier in the Punjab & Sind Bank in 1975 and was posted at Bombay. He was transferred to Delhi on 1st October 1982 and is now posted at Singhola branch. Delhi, the respondent is his affidavit dated 5th September 1934 has stated that he did graduation in law at Bombay in the year 1982 and that very soon he is likely to be promoted to an officer's grade The respondent has further in the said affidavit stated that he is at present receiving a salary of Rs. 1479.03.
(6) On the other side the undisputed and proved facts are that the son was born at the house of the grand parents on 16th August 1974 and since his birth he is being looked after and brought up by the maternal grand parents. Both the maternal grand parents are alive. The son is receiving education in Happy Model School and is now studying in the fourth standard. His tuition fee and the bus fare are Rs. 2651.00 per month and this expense is being met by the grand parents. The 'grand parents with their two sons are staying at J-4] 16, Rajouri Garden, New Delhi. The ground floor is on rent and the first floor and a barsati are in their personal occupation, Both the sons are now married. The elder son has has daughters and the younger son one daughter.
The grand-mother Smt. Jaswant Kaur in her affidavit dated 5th September 1984 has staled that Harjit Kaur, mother of the child, had after divorce taken rnursing training in a Nursing School at Agra and she was doing private practice and was residing in Vikaspuri, opposite Janakpuri and that she is earning about Rs. lOOO.00 per month. She has further deposed that Harjit Kaur has not remarried.
(7) Jaswant Kaur in her deposition in court on 22nd September 1981 had stated that she does not know where Harjit Kaur was then residing, that she had left their house about a year ago and they do not have her address nor has she written any letter to them. She further stated that Harjit Kaur had left the house without informing them and m spite of their efforts they have not been able to find out her whsreabouts. She further stated that after receipt of the summons from the-court they tried to find out her whereabouts but .they could not trace her out. The 'learned counsel for the appellants, offering an Explanationn for the above statement, contended that the respond ent was harassing Harjit Kaur and it was for this reason that Jaswant Kaur did not disclose the address of Harjit Kaur and kept it a secret. I am not impressed with this Explanationn offered by the counsel. The respondent had re-married in.October 1980 and he was employed in a Bank at Bombay and there could be no occasion for the respondent to approach Harjit Kaur and harass her. It was only during the questioning of the child on 5th September 1984 that it. was known that the mother resided in a flat. in Vikaspuri and she visited her parents and the son sometime. It is not known at all why the mother is living separate. We have no evidence as to. where the in other lived after August 1980. It is clear from the deposition of Jaswant Kaur that at least till September 1081 she had no information of the whereabouts of her daughter.
(8) On 5th September 1984 I interviewed the child in the chamber with a view to ascertain his wishes. The child stated that he is studying in the fourth standard in the Happy Model School, Janakpuri and 'he is happy with the education he-is receiving. To a question whether he would like to go 'and live with his father, the child replied: 'I do not wish to go to my father. My father has remarried and I may not be treated well by my step mother.' To another question as to why does he think that he may not be treated well by the step mother the child stated that he has seen in the pictures step-mothers mal-treating the step children and even accusing them of theft. To a question as to how he is being treated by In's maternal grand parents and maternal uncles the child stated that he is very well treated and they have lot of love for him.'
(9) The impugned judgment shows that under the orders of the court the child had stayed with the father for about a week and the court was told that the child was happy in the company of his father and he had also expressed willingness to go with the father to Bombay.
(10) The learned counsel for the father contended that the well recognised principle is that a father is not only the natural guardian but has an inalienable right to the custody of his miner son unless there are strong reasons to the contrary. The counsel contended that beyond the fact that the father had remarried and he has daughter now aged 2 years and 8 months from the second marriage there is no other circumstance brought out on the record to deny the father of his legal right to the custody of his stn. The counsel contended that the mere fact that the father had remarried would not be a valid ground to the custody of his son. The counsel contended that the mere in support of his contention relied on Mrs. G.A. Ayyadorai Filial v. E.H. B. David, : AIR1960Mad519 and Tikka Pritam Singh Sodhi And another v. S. Kashmir Singh 1981 HLR 34(2). In the case Tikka Pritam Singh Sodhi (supra) a single Judge of the Punjab and Haryana E High Court held that the second marriage by itself is no ground to disentitle the father who is a natural guardian of the custody of the minor child without showing anything more.
(11) Shri Chaudhary, learned counsel on behalf of the appellants, contended that the son was born in the house of the maternal grand parents and since birth he has been brought up and being educated by the maternal grand parents and that to shift the custody of the child at this stage would not be in the interest of welfare of the child. The counsel contended that the father had remarried and he has a daughter from the secord wife and it was quite probable that he may have more issues in due course and that in our country it is well known that normally the behavior and treatment of the step-mothers towards the step children is not good and that, thereforee, it would not be conducive to the welfare of the child to shift him from known congenial and affectionate environments to an uncertain and unpredictable atmosphere. He in support of his contention relied on A.V. Vankatakrishaniah and another v. S.A. Sathyataimar, : AIR1978Kant220 , Kota Karrenna v. Kota Paravathamma, : AIR1978AP398 and Manjit Singh v. Bakhshish Singh and another, .
(12) The trial Judge on an appreciation of the material placed before him came to the conclusion that the custody of the child should be given to the father. Since the passing of the above order, the father has been transferred to a branch of the bank at Shinghola, Delhi. The father is residing at C C-366, Gali No. 9, Majlis Park, Adarsh Nagar, The father who also argued the case in person vehemently contended that the mother had not claimed the custody of the child and that, in fact, it seems, the mother is not taking any interest in the child and that the grand parents are getting old and in the years to come they would not be able to exercise any control over the child and that as against the grand parents he is in a much better position to control and direct the education and the bringing up of his son. He further contended that it is clear from the evidence of Jaswant Kaur that they were unable to exercise any control over their daughter Harjit Kaur and how it can be expected that they would be able to guide and control the son who is in an adolescent stage of life.
(13) Under the Hindu Law a father is the natural, guardian of the person and property of his infant son. He, even, has preference over the mother. It is the legal right of the father to have the custody of the minor son. He is to look after the up-bringing and education of the child. In deciding a case of custody of a child the paramount consideration is the welfare of the child. In proper cases the court would be within its jurisdiction to deprive the father of the custody of his children Mainly two reasons have been advanced for depriving the respondent-father to have the custody of his son: (1) that the father completely neglected to maintain the child, and (2) that he had re-married and the step mother may not treat the child kindly and affectionately and which may have an adverse effect on the mental and physical growth of the child. I have earlier stated that the parties separated sometime in 1975 and thereafter they never resided together. The father filed a petition for restitution. According io him.he withdrew the petition on an assurance given by his father-in-law that the wife would be sent back to live with him but she did not return to the marital home -thereby compelling him to file a petition for divorce which was granted in August 1980. The father was between the years 1976 and 1980 posted at Bombay. The father could possibly not have asked for the custody of the child during that period since he could not have any arrangement to keep the child at Bombay. He also may not have asked for the custody of the child in the hope that the wife would return to live with him. Te father filed the petition for obtaining the custody of the son on the same day the divorce was granted.
(14) The mother at no stage appeared to contest the petition. The petition was contested by the maternal grand parents. From the statement of Jaswant Kaur recorded on 22nd September 1981 it is clear that the mother had deserted the child and left him at the mercy of her parents and brothers. The mother even now admittedly, is living separate. We have no evidence about the manner and the v/ay the mother is living.
(15) The son who is now aged 10 is living with the maternal uncles and grand parents. Both the maternal uncles are- married and have children. On 22nd September 1981 Smt. Jasw ant Kaur gave her age as 55 years. She would be now over 58 years. The maternal grandfather did not appear in the witness box. The maternal uncles have also not show any interest in the case. 'Jaswant Kaur in cross-examination stated that her elder son is not ready to maintain the child. The maternal parents would be getting older day by day and it is doubtful if they will be able to exercise proper control over the son in the future. True, at present the son is receiving full love and affection from the maternal grand parents and the maternal uncles but this is not the only thing riquired in the proper mental and physical growth'. 'The imparting of education is very important in the proper growth of a child. Certain amount of control is also essential. The father who is now law graduate is employed as an Assistant Cashier in the Punjab & Sind Bank and is posted at Delhi. He was present in court and he partly argued his own case. j see that he is very keen to have the custody of the son and bring him up and educate him.
(16) The only question remains whether it would be preaper to deny him the custody of the son because he has reimarried and has a daughter. I am conscious that the common experience is that it is seldom that a step mother gives her love and affection to a step child but then if we start with this assumption in every case then it would become an unwritten rule that a father on re-marriage would forfeit the to have the custody of his children. The father, to me, seems to be a man with strong will and determination and he would in all probability not allow the step mother to maltreat the son. There is nothing in evidence regarding the character and habits which may disentitle the father to have the custerdy dy of the son. also find no other circumstance that may render the father unfit to have the custody of the son.
(17) In a case like the one before us I have always found it very difficult to take a decision. I feel unhappy that the son is to be shifted from his present familiar and affectionate surrou-ndings, but, then, this step is being taken wholly in his. interest and welfer.This definitely in the long.run would be in the interest of the child.
(18) To see that the son docs no' lose or it depriyed the love and affection of the maternal grand parents and the mater nal uncles I feel that the son at intervals should have the opportunity to meet his maternal relations. I direct that' during long vacation (extending over 5 days) the grand parents or the maternal uncles shall have the right to '.are the minor 'on with them from the father's home. The period of stay between the father and the maternal grand parents maternal uncles shall during the long vacation be divided half and half.: By mutual consent the period of stay on either side can be extended. On the expiry of the period of stay indicated above the father shall go and bring the child from the house of the maternal grand parents. It there is any obstruction offered by the father to the appellants taking the minor son it will be open to the appellants to move the district Judge for giving effect to this order. Likewise, if any obstruction is caused by the appellants in handing back the custody the father shall be at liberty to approach the District Judge for necessary directions. In case at any stage the minor's welfare is jeopardised seriously by any act of willful neglect or otherwise of the respondent father it shall be open to the appellants to have the district court for appropriate directions and relief. If at any time circumstances arise warranting modification of this order the parties are given the liberty to move this court for such change as this court may deem fit to make.
(19) Before concluding I earnestly implore the parties not to take this decision as a personal triumph or defeat and they should act in unity to advance the interest and welfare of the child. I further hope and wish that the custody of the child shall be transferred to the father peacefully and without causing any embarrassment to the child.
(20) In the process of the shifting of the custody of the child I see another problem that the father may have to face. The child is at present studying in the Happy Model School in the fourth standard. The said school is about 20 kilometers from the house of the father. It may not be advisable to send the child every day to such a long distance and this may necessitate the shifting of the child to a school near the house of the father. I am suite the father shall sec that in case the shifting ofthe child from Happy Model School becomes necessary he shall put the child in a proper school and see that his studies do not suffer.
(21) With the above directions the appeal is dismissed. The parties are left to bear their own costs.