S.K. Chakravarti, J.
1. These arc two appeals, one by the husband against an order of the learned Additional District Judge, Alipore by which he dismissed the petitioner-appellant's application for judicial separation from his wife the respondent and the other by the wife against an order passed by the learned District Judge, Howrah by which he allowed the application of the husband for custody of the child of the marriage.
2. The parties are Hindus and were married on April 22, 1960 according to Hindu religious rites and a male child was born on February 9, 1961. They lived together till the 1st of March 1962 since when they have been living apart.
3. The petitioner husband's case is that his wife the respondent was haughty and temperamental as her parents were wealthy and she wanted him to live in her father's house at Salkia and as the petitioner refused to do it, she ultimately left his house on the 1st of March 1962 without any cause whatsoever. His further case is to the effect that in spite of repealed requests she has not returned to him and has completely deserted him. He, therefore, filed an application praying for ' judicial separation.
4. The respondent categorically denied all these allegations. Her case is that she does not belong to a wealthy family and never expected her husband to live with her at her father's place. On the other hand, the petitioner wanted money from her father and as her father could not procure the same and offered him only half of that amount, he grew angry and began to practise cruelty upon her and drove her away sometime in September 1961, 12 days thereafter her father-in-law died and she was called an evil woman and was held responsible by the members of her husband's family for the death of the father-in-law. In spite of that, on hearing the sad news she came over to her husband's place with her father but she was given a cold reception and was driven away on the next day. She, however, along with her father came to attend the Sradh ceremony and after the Sradh was over, there was some sort of reconciliation effected between them and she came over to live with her husband at his place of work at Naihati. The petitioner, however, on some excuse took away her ornaments and have refused to return the same to her. She was then given medicines brought by her husband for an illness not known to herself, and when she met the Doctor, namely Dr. Bejoy Bose, who gave the prescription, he told her not to take the medicines and thereafter the respondent discontinued taking medicines. The petitioner there upon became displeased and began to press upon her to quit his residence and began to ill-treat her and even stopped her food. On 26-2-1962 the petitioner wrote a letter to the respondent's father to come positively on 1st of March 1962 for some urgent consultation. When the father came, the petitioner abused and insulted him, and drove the respondent away. She denies that any attempt was made by her husband to take her back. She, however, reiterated that she had been and is always willing to go back to her husband, provided he gives some sort of guarantee that he will not ill-treat her.
5. The learned Additional District Judge on the evidence accepted the respondent's case in toto and held that there has not been any desertion by the wife of the husband. He further came to the conclusion that it was rather the petitioner who was responsible for the separation and that he made no attempts to bring her back. He therefore dismissed the application.
6. In this appeal by the husband, it is contended, that the learned Additional District Judge erred in holding as above.
7. It is well settled now that in essence desertion means the intentional permanent forsaking and abandonment of one spouse, by the other, without the other's consent, and without reasonable cause, and that it is a total repudiation of the obligations of marriage. In a case of desertion there must be two conditions; -- namely, (i) factum of separation and (ii) the intention to bring cohabitation permanently to an end.
8. Now, so far as the present case is concerned, it is an admitted position, that at least since the 1st of March 1962, the petitioner and the respondent have been living apart. It is now to be seen as to whether the respondent intentionally abandoned the husband without any reasonable cause with the intention of bringing cohabitation permanently to an end. Both sides have adduced evidence in this case. We ourselves have been led through the entire evidence, both oral and documentary, and, on a careful analysis of the same, we are not in a position to find that the learned Additional District Judge has erred in the conclusions he had arrived at. As a matter of fact, the evidence is quite clear to show that the only conclusions possible therefrom, are those which have been arrived at by the learned Additional District Judge. (After discussion of the evidence his Lordship concluded): Thus, on a consideration of all the facts and circumstances, we agree with the findings of the learned Additional District Judge to the effect that there has not been any, desertion by the wife of tbe husband, and thai if the wife has been living separalely, she has been compelled to do so, on account of the conducl of the husband. The, suit, therefore, has been rightly dismissed by the learned Additional District Judge, and F. A. 598 of 1966 must, therefore, be dismissed with costs, hearing fee being assessed at five gold mohurs.
9. Now with regard to F. M. A. 663 of 1967- This appeal is by the wife, as we have staled already. The husband Sunil Kumar Chowdhury was the petitioner before the learned District Judge Howrah and this petition was under Section 25 of the Guardians and Wards Act. 1890, by which he prayed for the custody of the child born of the wedlock. His case was that the boy who was born on the 9th of February 1961 was taken away by his wife on 1-3-62 from his place at Naihati and the boy is living with his mother [the respondent) at her father's house and he is not being given proper education commensurate with his age and family reputation and he is being pampered in such a way that there is every likelihood of his being spoilt. As the wife has not returned the child to him in spite of demands, he filed this application. The application was contested by the present appellant (respondent), the mother of the child, and she controverted all the allegations made by the husband. The learned District Judge held that ours is a patriarchal society and the father being the head of the family, more consideration is to be given to his wishes and he would he more able and better fitted to control, regulate and train the children in accordance with the rules of discipline, etiquette and morality by reason of his age, experience and firmness. He accordingly held that the child should be returned to the father, and as the child did not know the father at all, he directed that during the Puja holidays and Christmas holidays and Summer Vacation the boy should he sent to his father for spending some of his holidays with his father and his environments, and that after the completion of one year from that date the petitioner shall have the custody of the minor boy.
10. The application is under Section 25 of the Guardians & Wards Act, The child is aged more than 5 now. Though under Section 19 of the Guardians & Wards Act, if the father is not unfit to be guardian of the person of a minor aged more than 5, the father should be the guardian, (Vide 65 C. W. N, 1138) still under Section 13 of the Hindu Minority and Guardianship Act, the prime and sole consideration will be the welfare of the minor, Section 19 of the Guardians and Wards Act will have, therefore, to be read subject to Section 13 of the Hindu Minority and Guardianship Act, so far as Hindus are concerned. We, therefore, have to consider whether in the facts and circumstances of this case, it would be to the welfare of the child, to take him away from his mother, and make him over to his father who is a total stranger to him. The boy is reading in the Don Bosco School at Lilooah and has got good grades m the School. It is well known that this School, run by the missionaries, is a very good one. There is nothing to show that the teaching he is getting there, is contrary to the teachings of the Hindu Shastras, or that he is being pampered or being taught to live in a foreign way. It is well-known that in such institutions, it is very difficult to get admission for boys, and if a boy can get an admission in such an institution, he is a very lucky one. The petitioner has been living alone in his quarters at Naihati. He has been living away from the son barely after the son has reached the age of one. If the learned District Judge has commented on the fact that the boy docs not know the father at all, it is necessary that such a young hoy should be under the care and control of a female relation. Sensing this, the petitioner had suggested that he would bring his mother down from Bishnupur to his house at Naihali to look after the boy. The mother is, admittedly, an aged person, and there is nothing to show that she would agree to come to Naihati to look after this young boy. The petitioner has further suggested that he would have the boy educated at the Ramkrishna Mission institution either at Narendrapur or at Rahara. It would not be possible for the petitioner to send the boy daily to such institutions from Naihati, and the boy will have to be kept in the boarding provided for boys of such institutions. On the other hand, at the Don Bosco School he attends daily from his residence. It is absurd to suggest, that in the circumstances, it will be to the welfare of the boy to be uprooted from his mother's house, and planted either at Naihati or at Narendrapur or at Kahara where he would not have the loving care of either of his parents or near relations. There is absolutely no reason to hold that the boy is being pampered or is being brought up in a different way. The father of the boy's mother has even provided for a private tutor for this boy. If the father is so very averse to having his son educated in an institution run by non-Indian missionaries, it cannot be understood as to how he himself is so very anxious to go over to England and have his training there. It is also interesting to observe that the father's sudden attraction for his son or realisation of his own responsibilities as a father and a Hindu, has grown up, not when he filed the suit for judicial separation from his wife, but only after this Court had imposed on him the penalty of paying costs of the litigation borne by his wife, and the alimony to be paid by him to his wife. If his intention had been a bona fide one, it was within his competence to ask for the custody of his child under Section 26 of the Hindu Marriage Act. He did not choose to do so, and there is no satisfactory explanation for the same. In the circumstances, we hold that it would be to the welfare of the child to remain with his mother, and it would be against his welfare, to turn him over to his father. Moreover, our findings in the other appeal would show that the present petitioner would be totally unfit to be in control or charge of the minor son, when he could go so far as to drive them out from his own house, without taking any care to know as to how they were living or making any serious attempts to bring them back.
11. in the result, this appeal has to be allowed and is allowed with costs, hearing-fee being assessed at five gold mohurs; the order passed by the learned District Judge, Howrah in Misc. Case No. 42 of 1906 is set aside and the application of the petitioner under Section 25 of the Guardians and Wards Act, 1890 is dismissed.
12. The above order for costs has been made after taking into consideration the litigation costs paid to the appellant by the Respondent under the orders of this Court.
P.N. Mookerjee, J.
13. I agree with my Lord in his conclusion and also with his reasonings but I would like to add few words as, on an analogous matter, I delivered a judgment, sitting with my learned brother Niyogi, J., as he then was, under Sections 17 and 19 of the Guardians and Wards Act. Section 13 of the Hindu Minority and Guardianship Act has brought about a material change, so far as Hindus are concerned. As held in the said decision, which is reported in Bimala Bala Dasi v. Bhagirathi Shahu, 65 Cal WN 1138, so far as the father is concerned, he has a paramount claim of guardianship in the case of a boy of similar age to the boy, with whom we are concerned in this appeal and, under the said Act, in view of Section 19, the father's claim would be the paramount consideration. In regard to other persons, claiming guardianship, Section 17 of the said Act puts the welfare of the minor in the fore-front and makes it the paramount consideration. In the aforesaid decision, I have pointed out that, although the welfare of the minor may not be the paramount consideration under Section 19, while it s of paramount consideration under Section 17, even in cases, coming under Section 19, the said aspect is not altogether without significance. It will be one of the considerations or one of the facts, to be considered in the matter of the claim of guardianship, even of the father, and as one of such considerations, it may, in the ultimate result, outweigh the otherwise paramount claim of the father, as will appear from the said decision. Under the present law. namely, the Hindu Minority and Guardianship Act however, so far as this matter is concerned. Section 13 of the said Act makes it quite clear that, in all cases, irrespective of the status of the person, claiming the guardianship, the welfare of the minor would be the paramount consideration. In view of this distinction, in particular, there can be no question that the father, in the instant case, would not be entitled to the guardianship of the minor boy concerned. Even apart from that, having regard to the facts and circumstances before us and the findings, already made by My Lord, with which I entirely agree, there can be no doubt whatsoever that it will hardly be in the interest or for the welfare of the minor boy concerned to place him in the father's custody.
14. Indeed, by his act of driving out the minor boy along with the mother, he must be held to have lost or forfeited his claim to guardianship and custody of him, even if his claim to such guardianship and custody was otherwise paramount. I, therefore, respectfully agree with my Lord that this appeal should be allowed, the order of the learned District Judge should be set aside and the respondent father's application for guardianship and custody of the minor boy concerned should be dismissed with costs, as ordered by my Lord.
15. I may just add by way of explanation and clarification, that in the decision,65 Cal WN 1138. the Hindu Minority andGuardianship Act did not arise for consideration, as even though the said Act hadbeen passed during the pendency of thesaid proceedings, it having the consequenceof affecting substantive rights, and therebeing nothing in the statute concerned toindicate that it would have retrospectiveeffect or would apply to pending proceedings, the same could not apply to the saidproceedings, and, accordingly, no referenceis to be found in the said decision to thesaid new statute or to its Section 13.