Decided on August 31,1960



- (1.) THIS is the mother's appeal against an order of the learned District Judge, refusing her application for being appointed as the guardian of the person of her minor son Chhedi. The respondent Bhagirathi is the father of the said minor. The parties, namely, the present appellant Bimala Dasi and the present respondent Bhagirathi, were married in or about the year 1943. They were residents of Bansberia. Their first issue died a child. Then, about the year 1948, the minor son Chhedi, with whom we are now concerned, was born. The father Bhagirathi went away to Assam, when this minor child Chhedi was about six months old. At the time of going away as aforesaid, Bhagirathi made no arrangement for the maintenance of the mother Bimala and the son Chhedi during his absence. It appears from the record, flat, towards the end of the year 1949, Bhagirathi became a Rickshaw-puller in Assam and, towards the end of 1950, be came back and drove away the mother Bimala and the son Chhedi from his homestead. He, later, became attached to a widow Munia, and, in this state of things, the present appellant Bimala Dasi went to live with-one Sailen Das, who had been maintaining her (the mother) and the child Chhedi during Bhagirathi's absence. The appellant, thereafter, married Sailen in or about April, 1952, and Bhagirathi also married Munia in or about September, 1952. In the community, to which the parties belong, there was prevalent a custom of divorce and the parties actually remarried, as aforesaid, after they had finally given up each other by such customary divorce.
(2.) TROUBLE then started over the custody of the minor child (son) Chhedi, who was taken away forcibly by the father respondent Bhagirathi. Thereafter there were criminal proceedings, instituted by the appellant; mother, under which interim custody of the child was given to her, but, by his order, dated December 12, 1955, the learned Magistrate directed that that interim custody would continue only for a certain period of time, within which the appellant must obtain an order from the Civil Court, affirming and maintaining such custody; in default, the child Chhedi was to be restored to the respondent father Bhagirathi.
(3.) THIS led to the present application by the mother appellant, the application being filed on December 21, 1955, when the minor concerned was aged about six years and six months. The application was heard about a year thereafter and, in course of evidence, it transpired that Bhagirathi had refused to maintain the appellant Bimala Dasi and the minor son Chhedi, which led to a proceeding under section 488 of the Code of Criminal Procedure at the instance of the appellant mother Bimala Dasi but that case was, eventually, dismissed for default, which according to the appellant, was due to want of funds in her hands.;

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