HIGH COURT OF HIMACHAL PRADESH
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CHOWDHRY, J. -
(1.) THIS is an appeal under Section 47, Guardians and Wards Act against the judgment and order of the Senior Subordinate Judge of Mahasu dated 29 9 1951 dismissing the application of the appellant Surat Bam under Section 25 of the Act for the custody of his minor son Balak Bam.
(2.) THE contest in this case is between the father and the mother of the child, named Mt. Nardu. I have heard earned counsel for the parties and am of the opinion that the decision of the Court below should not be interfered with.
As the wordings of Section 25 of the Act themselves show, it is the welfare of the minor which is to be the main factor in deciding the question of its custody. There is no doubt that as between the appellant and the respondent the former has the preferential right not only to his appointment as guardian of the person and property of the minor, wherever any such question arises, but also to the custody of the minor. In some cases the mere fact of his bearing such relation to the minor may by itself lead to the conclusion that it is in the interest of the minor that it should return to his custody. There may be other cases, however, where inspite of that relationship it may not be for the welfare of the minor to return to his custody. And where the contest, as in the present case, is between a father and a mother, the advantage which the former has over the latter by reason of his right as a natural guardian cannot by itself be a determining factor, and in such a case the question of the welfare of the minor assumes much greater importance. The facts and circumstances of this case have to be taken into consideration in order to see whether it is in the interest of the minor Balak Ram to return to the custody of the present appellant.
(3.) THE facts which are not in dispute in this case are the following. The appellant and the respondent were married about 16 years ago. It appears that there was one other son born of this union, but he died. The minor in question was born on 35th Phagun 2002 B., so that at the time of . the filing of the present application he was about 5 years and 7 months old, and his age at the present moment is 6 years and 9 months. There is nothing to show that the relations between the parties were anything but normal until the appellant married a second time. This second marriage appears to have taken place when the minor was about a year and half old, i. e. sometime in the year 1948. Thereafter the relations between the husband and the wife became strained, and this was presumably due to the fact of the second marriage. The appellant had to file against her a suit for restitution of conjugal rights in December 1950, His allegation is that about 13 months before his filing that suit, i. e. about November 1949, she left him with the child. The suit resulted in a compromise decree and Mt. Nardu returned to the appellant and lived with him for about a month. She however again left him on 5 3 1951, taking the child away with her. She has since been living with her parents and latterly with her mother at Simla. Mt. Nardu has admittedly no independent means of livelihood, but she and the child are being maintained by Mt. Nardu's mother who is carrying on the business of selling milk at Simla. The present application was made on 23 4 1951. The petitioner is a forest guard getting Rs. 60/ p m. His parents are alive and they live in the ancestral home in village Hariawan, Tehsil Arki. The appellant's second wife along with four children born of this second marriage live with him.;
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