PRAKASH CHANDRA JAIN Vs. CHANDRAWATI JAIN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 5-11-1992, passed by the learned Judge, Family Court, Udaipur, by which the learned Judge of the Family Court dismissed the application under Section 25 of the Guardians and Wards Act, 1890, filed by the husband-appellant and refused to deliver the custody of the child to him from the custody of the mother-respondent.

(2.) Appellant Prakash Chandra Jain, on 28-1-1989, filed an application under Section 25 of the Guardians and Wards Act, 1890, in the Court of the District Judge, Udaipur, for the custody of his son Sumeet alias Kshitiz, who is living with his mother Smt. Chandrawati Jain. It is stated in the application that appellant Prakash Chandra Jain was married with Smt. Chandrawati on 6-2-1982 at Udaipur and out of this wed-lock, the son Sumeet alia Kshitiz was born on 20-9-1983. The non-applicant Chandrawati, in the month of November, 1985, along with her son Sumeet, went to her parents house and since then she is living with her parents along with her son Sumeet. It was, also, averred that the appellant-applicant is the natural guardian of Sumeet as per the law and the welfare of the boy is in living with the father as the mother is not taking proper care of the boy and, therefore, his custody should be given to the applicant-father. The wife Smt. Chandrawati filed reply to the application on 15-7-1989, refuted all the allegations made against her in the application and stated that the welfare of the child is in living with the mother and the applicant has neglected the child for the last so many years and, therefore, he is not entitled for the custody of Sumeet alias Kshitiz. The applicant, in support of his case, examined himself as AW 1 and produced in his evidence his father Shanti Lal as AW 2 and friend and neighbour Bharat Kumar as AW 3 whereas the wife (non-applicant) examined herself as NAW 1 and produced in her evidence Rakesh Gaur as NAW 2 and her mother Smt. Vidhyawati Gandhi as NAW 3.

(3.) The learned Judge of the Family Court, Udaipur, after trial, came to the conclusion that (i) the applicant, though the natural guardian, has fallen out with the mother and was living separately for about seven-eight years without taking any care in the affairs of the minor who was in the keeping and care of the mother and the father should, therefere, be treated as if in nonexistence and the mother should be treated as the natural guardian of the minor; (ii) the boy is in the custody of the mother and she has not disentitled herself for the custody of the child; (iii) the desire of the minor is to live with his mother, and dismissed the application under Section 25 of the Guardians and Wards Act filed by the appellant-applicant vide its judgment dated 5-11-1992. It is against this judgment dated 5-11-1992 passed by the learned Judge of the Family Court, Udaipur, that the appellant-husband has preferred this civil miscellaneous appeal.