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Onkar Walia Vs. Smt. Urmila Devi - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtHimachal Pradesh High Court
Decided On
Case NumberF.A.O. No. 103 of 1984
Judge
Reported inAIR1985HP100
ActsHindu Minority and Guardianship Act, 1956 - Sections 6 and 13
AppellantOnkar Walia
RespondentSmt. Urmila Devi
Appellant Advocate S.S. Kanwar, Adv.
Respondent Advocate Kamlesh Sharma, Adv.
DispositionAppeal dismissed
Cases ReferredIn Rosy Jacob v. Jacob A. Chakramakkal
Excerpt:
- .....has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.'9. bearing in mind all the relevant circumstances of the case and the law governing the rights of the parents for custody of minor children, i am satisfied that the decision rendered by the trial court is just and proper. the appeal is, therefore, summarily dismissed.10. all interim reliefs with regard to visitation rights stand vacated in light of the order.....
Judgment:

P.D. Desai, C.J.

1. The appeal arises out of an application for the custody of a minor male child named Rohit who was aged about 3 at the material time. The parents of Rohit were married in or about 1978 and he was born on Dec. 12,1979. Around that time, the relations between the parents appear to have become strained. Consequently, the wife instituted a petition for divorce on Sept. 3, 1980 but the proceedings were later dropped and the parties once again started living together. Another male child was born on April 22, 1982. Even before the birth of the second child and while she was still pregnant, according to the version of the wife, she was turned out of the matrimonial home and she was deprived of the care and custody of Rohit. The second child was born at the parental home and continues to be in her custody. On Oct. 12, 1982, the husband instituted a petition for divorce describing himself as Mohammad Salim alias Onkar Walia on the ground that he had ceased to be a Hindu on account of his conversion to another religion. The petition was dismissed as withdrawn at the instance of the husband on Aug. 17, 1983. The trial court has found that apart from the abovemenlioned proceedings, there have been prolonged litigations between the parties including criminal and that some litigations are still pending. The fact that the husband has embraced Islam is apparent on the material brought on record of this case. The trial Court, having regard to all the circumstances of the case and in light of the legal position, has awarded the custody of Rohit to the mother. Hence the present appeal.

2. Section 6 of the Hindu Minority and Guardianship Act, 1956, inter alia, provides that the natural guardians of a Hindu minor, in respect of the minor's person are ; (a) in the case of a boy or an unmarried girl -- thefather, and, (b) after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. There is yet another proviso to the section which enacts, inter alia, that no person shall be entitled to act as the natural guardian of a minor under the provisions of the said section if he has ceased to be a Hindu. Section 13, inter alia, provides that in the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration.

3. The principle of law in relation to the custody of a minor is even otherwise well settled. It is well established that any matter concerning a minor has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor's interest. In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor. The Court must regard the welfare of the minor as the first and paramount consideration and must not take into consideration, whether from any other point of view, the claim of the father, or any right possessed by him in respect of such custody, is superior to that of the mother, or the claim of the mother is superior to that of the father. See Thrity Hoshie Dolikuka v. Hoshiam Shavakasha Dolikuka, AIR 1982 SC 1276.

4. The controversy between the parties is required to be resolved against the aforesaid background.

5. When the proceeding for custody of Rohit was instituted, he was about three years old. Having regard to the statutory guideline contained in the relevant proviso to Section 6, the custody of the child must ordinarily be with the mother. Even the 'tender years rule' so well established for judging the welfare of the minor in custody proceedings points in the same direction. Besides, the father, who has admittedly ceased to be a Hindu, is disentitled to be the natural guardian of Rohit. In his place, the mother may ligitimately claim to be the natural guardian. A strong case, therefore, has to be made out for denying to the mother the custody of Rohit.

6. The trial Court, in the course of a well-considered judgment, has taken into account all the relevant circumstances while awarding the custody of Rohit to the mother. I am in broad agreement with the reasoning and wholly concur in the conclusion of the trial Court. The material evidence bearing on the points in controversy was read over to me by the counsel. I have independently perused the entire evidence on record since copies thereof were made available to me. The mother is a graduate. Since after her separation from her husband, she has established herself in business and has her own source of income. Her father is a well-to-do person. School facilities are available where the mother is living. Another child born out of the wedlock is already in the custody of the mother. In the home of the mother Rohit will be brought up in surroundings which are wholly congenial to the religion which is his by birth. True it is that Rohit is living with his father and grand-mother since last about two to three years. That factor cannot, however, outweigh all other weighty considerations. During the pendency of this appeal, the mother was given access to Rohit. From the judgment rendered by the trial Court, it is found that even during the pendency of the proceedings before the trial Court the mother was allowed access to Rohit on some occasions. There is no reason, therefore, to disallow the custody of the child to the mother on that ground. On the facts and in the circumstances of the case, some of which are mentioned above, I am fully satisfied that the custody of Rohit has been rightly awarded to the mother.

7. The ground which was strenuously pressed into service for denying the custody of Rohit to the mother was that she has abandoned the child in his infancy and that, therefore, she was disentitled to claim the custody. The evidence, which was read over to me in this connection, consists of no more than a mere suggestion. The evidence does not establish any act of voluntary abandonment of the child by the mother. The estrangement between the husband and wife resulting in protracted litigation, criminal as well as civil, between them points in the direction that theremight have been compelling circumstances for the mother to leave the house and that her version that the child was forcibly taken away from her when she was turned out from the matrimonial home may be substantially true. The fact that she withdrew her divorce petition and returned to the matrimonial home and that the second child was conceived thereafter but not born there and has been with her ever since and that she has instituted the present proceeding for the custody of Rohit are significant. The picture which emerges is not that whieh is sought to be painted.

8. In Rosy Jacob v. Jacob A. Chakramakkal, AIR 1973 SC 2090, which arose out of a proceeding under Section 25 of the Guardians and Wards Act, 1890, the Supreme Court has made the following pertinent observations (at p. 2100) :

'...........No doubt, the father has beenpresumed by the statute generally to be better fitted to look after the children -- being normally the earning member and head of the family -- but the Court has in each case to see primarily to the welfare of the children in determining the question of their custody, in the background of all the relevant facts having a bearing on their health, maintenance and education. The family is normally the heart of our society and for a balanced and healthy growth of children it is highly desirable that they get their due share of affection and care from both the parents in their normal parental home. Where, however, family dissolution due to some unavoidable circumstances becomes necessary the Court has to come to a judicial deeision on the question of the welfare of the children on a full consideration of all the relevant circumstances. Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and, who, in addition, because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them. The children are not mere chattels; nor are they mere playthingsfor their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.'

9. Bearing in mind all the relevant circumstances of the case and the law governing the rights of the parents for custody of minor children, I am satisfied that the decision rendered by the trial Court is just and proper. The appeal is, therefore, summarily dismissed.

10. All interim reliefs with regard to visitation rights stand vacated in light of the order aforesaid.


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