Decided on November 29,1983

POORNIMA Respondents

Referred Judgements :-



M.L.Jain, J. - (1.)Mst. Poornima is a widow. She has two children, a daughter Monika born on 9-11-1974 and a son Munish born on 3-9-1978. Her husband died on 7-5-1978. She alleged that after the death of the husband, she was maltreated and harassed and forced to do all kinds of job as a maid servant. She was deprived of her garments and ornaments and all her dowry and articles were kept by the parents of her husband. She was. compelled to leave the matrimonial home on 27-9-1979, and to come and live with her father. Both the minors remained in the custody of their paternal. grand-father. She applied for the custody undeSection 25 of the Guardian. and Wards Act, 1890. Upon a joint request of the parties the matter was. decided upon affidavits. The learned District Judge by his order dated 17-9-1982 accepted the petition and directed that the custody of the minor children be handed over to the petitioner. The grand parents and the uncle have appealed against this order.
(2.)The appeal was filed on 22-10-1982 without the certified copy of the impugned order, but with an application for exemption from filing a certified copy of the impugned order. It was directed on 31-1-1983 that the certified copy be filed within limitation. An application for certified copy was moved on 20-9-1982. Copy was ready on 27-1-1983. But it was taken and filed on 20-8-1983 along with an application for condonation of delay. After excluding the period of limitation and the time taken in obtaining the copy of the total delay is of about lour months. The delay in obtaining and filing the copy was caused on account of laches on the part of their previous counsel and the appellants being illiterates did not know what exactly was to be done. They should not be penalised in a lawyer-oriented system of justice, for the fault of their previous counsel. I think the appellants have shown sufficient cause within the meaning of Section 5 of the Limitation Act and the aforesaid delay is hereby condoned.
(3.)As to merits, the law is that the mother on the death of the father is the natural guardian of the children and is entitled to their custody unless the court comes to the conclusion that it is in the interests and welfare of the children that she be deprived of such guardianship and custody. As reiterated in 'Smt. Nirmal Jain v. State, 1983 DRJ 152-1983 RLR 130, the welfare of the minor is not to be measured by money or by physical comfort only. There are also other consideration as well such as age, sex and religion of the minor, the relationship, character and capacity of the proposed guardian, wishes of the minor if capable of making an intelligent preference. The claim of the lawful guardian cannot be ignored except on good grounds. Have then the grand-parents made out a case so as to defeat the claim of the mother ?

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