Amitava Lala, J. - (1.) THIS appeal has been heard on the informal papers on exchange of affidavits, as agreed upon by the learned Counsel appearing for the parties.
(2.) THE controversy arose in this appeal out of an order passed by the Principal Judge, Family Court, Agra on 16th April, 2008 in Case No. 25 of 2007 (Sri Kamal Kant Gautam Vs. Smt. Mamta and another) under Section 7 of the Guardians and Wards Act, 1890 with regard to guardianship of minor daughter of the appellant/opposite party no. 1 (the girl) and the respondent/applicant (the boy). As per the order impugned, the respondent/applicant is entitled to get the custody of the minor child within a month from the date of the impugned order passed by such Family Court. The brief facts of the case, as was set up by the respective parties before the Court below, are that the respondent/applicant filed an application under Section 7 of the Guardians and Wards Act, 1890 before the Court below saying that he is working in Mumbai (Maharashtra), where he came in contact with the appellant/opposite party no. 1 and later on they fell in love and ultimately, they entered into a marital relation as on 27th September, 2004. Since then they started living in the house of the respondent/applicant and ultimately in their wedlock on 21st November, 2005 one daughter was born in a nursing home i.e. Dixit Nursing Home, Agra, Uttar Pradesh. By the parents of appellant/opposite party no. 1 the demand of money etc. was raised for construction of house, which was fulfilled by the respondent/applicant, but even thereafter several demands were also made. On 18th March, 2006 the appellant/opposite party no. 1 along with newly born daughter went to her parental home saying that she will go to 'Vaishno Devi' for 'darshan'. However, the respondent/applicant after coming to know the fact that the appellant/opposite party no. 1 along with newly born daughter is, in fact, residing at her parental house at Agra, he went there, where he found that the appellant/opposite party no. 1 belongs to "Bediya" community and the activities like prostitution, etc. are their occupation. The respondent/applicant felt sorrow and he requested the appellant/opposite party no. 2 to handover his wife (the appellant no. 1) and daughter to him when she raised a demand for a sum of Rs.25,00,000/- and misbehaved with him. However, the appellant/opposite party no. 1 once again has indulged herself in the occupation of prostitution for quite some time. It was further stated by the respondent/applicant before the Court below that if his daughter remains in such a society, it will cause adverse effect on her personality. In such circumstances, by filing application the respondent/applicant sought relief to get back the custody of his daughter in his favour. The appellants/opposite parties filed their written statement and admitted that they belong to "Bediya" community and their occupation is dancing and singing from the ancient time. They have also stated that the appellant/opposite party no. 1 was a bar dancer in Mumbai and she came in contact with the respondent/applicant so many times and thereafter she also went for outing with him. The respondent/applicant after taking the appellant/opposite party no. 1 to a temple put "Sindoor" (vermilion) in her "Maang" and photographs were taken, but the appellant/opposite party no. 1 never lived with him and continued with her work of Bar dancer. Thereafter, the appellant/opposite party no. 1 went to Kolkata, where she came in contact with many youths, who did intercourse with her and the child was born out of such relationship with any one of them. The appellant/opposite party no. 1 also moved an application before the Senior Superintendent of Police, Agra saying that the respondent/applicant is harassing her and the certificate of marriage was demanded by the Senior Superintendent of Police, Agra. The photocopy of the report of Senior Superintendent of Police was annexed by the appellants/opposite parties with their written statement filed before the Court below. However, the averments of the appellants/opposite parties were duly replied by the respondent/applicant. Evidences were led and the arguments were advanced before the Court below. The parties have accepted that birth of the child took place in Dixit Nursing Home at Agra on 21st November, 2005. Several photographs were examined, which established the marital relationship between the respondent/applicant and the appellant/opposite party no. 1. Objection was raised by the appellant/opposite party no. 1 by saying that the nature of the marriage can not be said to be acceptable in the eye of law. However, the Court below held that when no complaint was lodged by the appellant/opposite party no. 1 on account of forcible marriage, if any, between them for about 3 and years particularly when she was normally living in a metropolitan city, like Mumbai, and the appellant/opposite party no. 1 is not an illiterate lady although she belongs to "Bediya" community, it can be safely presumed that there was marital relationship between the appellant/opposite party no. 1 and the respondent/applicant.
(3.) SO far as birth of the child is concerned, the Court below observed that birth certificates had been produced by the respondent/applicant as well as the appellant/opposite party no. 1 independently. In the first birth certificate, which had been produced by the respondent/applicant, the name of father of the child has been shown as 'Kamal Kant (Rajesh)', whereas, in the birth certificate filed by the appellant/opposite party no. 1 the name of father of the child is written as 'Rajesh Singh'. In reply to such birth certificate filed by the appellant/opposite party no. 1, the photocopy of the Birth-Death Register of Nagar Nigam, Agra was filed by the respondent/applicant, in which name of father of the child is recorded as 'Kamal Kant C/o Mr. Rajesh'. Therefore, the name of father of the child is more specific from the birth certificate produced by the respondent/applicant if it is compared with the Register of the Nagar Nigam, Agra. As such, the Court below came to a conclusion that the child was born in their wedlock and the respondent/applicant is father of the child. So far as marriage is concerned, the Court below further observed that the appellant/opposite party no. 1 has admitted putting of 'Sindoor' (vermilion) in her 'Maang' but thereafter no action was taken by her against the respondent/applicant. Subsequently, a letter was written by the appellant/opposite party no. 1 to the Senior Superintendent of Police, Agra, on which Circle Officer, Fatehabad, Agra did enquiry, however, the appellant/opposite party no. 1 had not taken any action against the respondent/applicant before the birth of child at any place, which indicates that the appellant/opposite party no. 1 had no objection with regard to their marriage but intention had been changed only after the birth of the girl child. It has been further observed by the Court below on the basis of the arguments advanced by the parties that birth of a girl child in the family of "Bediya" is boon because they expect that the girl child will join their occupation of dancing, singing and other activities, which will be another source of income in future.;