- (1.) The appellant filed an application under section 25 of the Guardians and Wards Act, 1890, alleging that he being the father of the minor Jit, who was born on 3rd March, 1967, at Dhariwal to the respondent, is entitled to his custody. The respondent was his wife who left his house about 5 years prior to the institution of the application and started living with one Mohan Singh of village Akalpur as his wife and she gave birth to a male child from the loins of Mohan Singh. He further averred that Jit minor is his only son and was living with him in village Bahian, Tehsil Gurdaspur; six months prior to the institution of the application, the minor, while he was tethering cattle in the fields outside village Abadi, was taken away by the respondent. Thereafter, in spite of his efforts, the respondent did not deliver the child to him. Allegations of bad character were alleged against the respondent and on this basis, it was pleaded that it is not in the welfare of the minor to live with her. Moreover, he being the natural guardian of the son is entitled to his custody. In the written statement filed on behalf of the respondent, it was pleaded that the appellant had another wife and so she was turned out of the house. She, further pleaded that since the birth of the minor, he is living with her mother and the minor never went to village Bahian. The appellant never came to see the child, who was born in the house of her parents nor he ever maintained him. The appellant was alleged to be living with his other wife Jito and so there was every danger to the life of the minor at the hands of his step-mother. She claimed herself to be the natural guardian of the minor who could better look after him. On the pleadings of the parties, the following issues were framed :- (1) Whether Jit minor has been removed from the custody of the petitioner as alleged ? (2) If issue No. 1 is proved whether it shall be in the interest and welfare of the minor to restore his custody to the petitioner ? (3) Relief" On issue No. 1, the learned Senior Sub-Judge came to the conclusion that the appellant is not able to establish by any reliable evidence that the minor Jit was residing with him and was taken away by the respondent from his custody. On issue No.2 it was held that it is not in the interest and welfare of the minor ward to restore his custody to the appellant. Consequently, the application was dismissed. Feeling aggrieved against, this, the present appeal has been filed in this Court.
(2.) Learned counsel for the appellant vehemently contended that the father being the natural guardian in view of the provisions of Section 6 of the Hindu Minority and Guardianship Act, 1956, is entitled to the custody of the minor child. He further submitted that since been admitted by the respondent that she has remarried one Mohan Singh and has got two children from his loins, it is not in the interest of the minor child to live with her any longer. In support of his contention he referred to Lalita Twaif v. Paramatma Prasad, 1940 AIR(All) 329 Gurdeo Singh v. Daulat Kaur, 1961 AIR(Raj) 30 Sunita Devi v. Raj Pal Kaushal, 1978 HinduLR 180 and Gian Chand v. Bahadur Singh, 1961 AIR(P&H) 164 On the other hand, the learned counsel for the respondent submitted that the minor child was born in the year 1966 at the house of the mother's parents and since then the appellant has never cared to see his minor child or to provide any maintenance during this period. Moreover, appellant is already having another wife namely Jito and it was on that account that the respondent was turned out of his house while she was pregnant. She has admitted that she has remarried with Mohan Singh and has got two children from his loins but she submitted that there is no complaint on that account and nothing has been brought on the record that the minor is not being looked after properly. In any case, it was contended that it cannot be said that it will be in the welfare of the minor child to hand over his custody to the appellant.
(3.) I have heard the learned counsel for the parties at a great length and have also gone through the evidence, on the record. The learned trial Court, after going through the evidence has come to a firm finding that it is act in the interest and welfare of the minor ward to restore his custody to the appellant. I do not find any cogent reason to differ from this finding of the trial Court. It may be that the remarriage by the respondent wife with one Mohan Singh may be one of the factors to be considered while judging the welfare of the minor. In the present case, nothing has been brought on the record that on that account the minor child is not being looked after properly. On the other hand, the whole conduct of the appellant has been such from the very beginning that he never care to see his minor child after his birth and he did not even provide maintenance during this period. Moreover, allegations have been made against him that another wife named Jito is living with him. As a matter of fact, Jito was alleged to be already there before the appellant was married with the respondent and according to latter's allegations she was turned out of the house, when she was pregnant, at the instance of Jito. Under these circumstances, it is difficult to hold that it will be in the interest and welfare of the minor child to live with his father while the step mother is still there who was responsible for turning out the respondent from the house of the appellant. In all these cases the primary consideration is the welfare of the minor child and the discretion vested in the Court is to be exercised judiciously in the background of all the relevant facts and circumstances of each case been so held authoritatively by the Supreme Court in Rosy Jacob v. Jacob, 1973 AIR(SC) 2090 In the present case, the learned Senior Sub-Judge has rightly judicial discretion in favour of the respondent been observed by him; "However,in the present petition, the circumstances are different as the minor was born in Dhariwal and he has not been proved by any cogent evidence to have ever resided with his father in Bahian and to the contrary there are statements of Mohinder Singh Sarpanch, Sardar Singh Lambardar and Bhagat Singh resident of the Akalpur that the minor was residing with his mother for the last about 11/12 years ever since she married Mohan Singh. It has been further found that the appellant has neglected to maintain his minor ward for a long period of 11 years and the ward is being looked after by his mother with love and affection and is getting education in village Akalpur whereas the applicant cared little for the minor for a long period. In these circumstances, there is no congent reason to differ with this finding of the trial Court.;