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Gokal Nath Vs. Smt. Krishna Devi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtHimachal Pradesh High Court
Decided On
Case NumberF.A.F.O. No. 32 of 1970
Judge
Reported inAIR1973HP79
ActsGuardians and Wards Act, 1890 - Section 25
AppellantGokal Nath
RespondentSmt. Krishna Devi
Appellant Advocate H.K. Bhardwaj, Adv.
Respondent Advocate Romesh Chand, Adv.
DispositionAppeal dismissed
Excerpt:
- .....it appears that after the marriage, relations between the husband and wife became strained and the wife left for her father's house, and ever since she has lived there. the husband obtained a decree for judicial separation on the ground of desertion, and this was followed after the statutory period of two years by a decree for divorce. the minors continued to live with their mother at the house of their maternal grandfather. during the pendency of title proceedings for divorce, the husband made the application, out of which the present appeal arises, for the custody of the minors on the plea that he was their natural guardian and was legally entitled to their custody.3. the application was contested by the wife. she alleged that the welfare of the minors was not safe in the hands of the.....
Judgment:

R.S. Pathak, C.J.

1. This is an appeal by the father against the order of the learned District Judge dismissing his application under Section 25 of the Guardians and Wards Act for the custody of his minor children.

2. The appellant Gokal Nath and the respondent Shrimati Krishna Devi were husband and wife. They have two children, a son Rajan who at the time of making the application was 10 years of age and a daughter Pinki who was then about 4 1/2 years of age. The application for custody of the children was made on February 15, 1967. It appears that after the marriage, relations between the husband and wife became strained and the wife left for her father's house, and ever since she has lived there. The husband obtained a decree for judicial separation on the ground of desertion, and this was followed after the statutory period of two years by a decree for divorce. The minors continued to live with their mother at the house of their maternal grandfather. During the pendency of title proceedings for divorce, the husband made the application, out of which the present appeal arises, for the custody of the minors on the plea that he was their natural guardian and was legally entitled to their custody.

3. The application was contested by the wife. She alleged that the welfare of the minors was not safe in the hands of the husband, that he had never taken any interest in them and had been content to leave the wife to look after the children and had provided nothing for their maintenance. It was also alleged that there would be no one to attend to the children if they were left with the husband and that his relations with his own father were strained. The wife also asserted that she was teaching in a Government School, and was bringing up the children properly and was qualified to attend to their education,

4. The learned District Judge dismissed tile application, holding that although the husband was the natural guardian of the children this conduct as well as his indifference towards them disentitled him to their custody. He also sent for the children and. after ascertaining their wishes, came to the conclusion that they should continue in the custody of the wife.

5. I have heard learned counsel for the parties and also perused the material on the record. It seems to me that the learned District Judge is right. While a father may ordinarily be entitled to the custody of his minor children that right can be denied to him if the Court finds that the interests of the children require otherwise. The Court must ever keep in mind the paramount need to ensure the welfare of the children. The law recognises a sufficiently wide discretion in Courts of equity in the matter. .

6. On the material before me it is clear that the children have been living with their mother at the house of their maternal grandfather ever since she left the appellant. The relations between the parties remained strained, and there is no evidence that the wife ever returned with the children to her husband. The evidence on the record shows that the appellant took no interest in the welfare of the children nor did he. at any stage after the wife had left him. ever make any attempt to provide an allowance for their maintenance and education or make those gestures by way of love and affection which a father commonly bestows upon his children even though separated. The wife teaches in a school and her salary, according to the record, is Rs. 250/- (per month. Her father, with whom she resides, is a practising lawyer. It is evident that the financial resources of the wife and her father are sufficient to ensure the proper maintenance and education of the children. In order to ascertain the wishes of the children. I sent for them. On the statement made by them in the presence of counsel for the respective parties as well as of the appellant himself, it appears that they are firm in their wish to continue residing with their mother. Having regard to the age of the minors and all the circumstances of the case there is every reason to believe that their welfare will be more adequately ensured if they continue in the custody of their mother. Allegations have been made by the wife that the appellant is given to vice and is, therefore, incompetent to look after the children. It is not necessary, I think, to enter into the truth of those allegations because in my opinion, the material otherwise is sufficient to reject the application of the appellant.

7. Accordingly, this appeal failsand is dismissed. In the circumstances, however, there is no order as to costs.


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