Sneh Prashar, J. - (1.) THE present appeal under Section 10 of the Guardian and Wards Act, 1890 (for short "the Act of 1890") was filed by appellant -Neelam assailing the order dated 09.05.2008 of Civil Judge (Senior Division), Kaithal by virtue of which her petition seeking directions to Man Singh and his wife Murti Devi (respondents) to hand over to her the custody of her minor daughter Muskan, was dismissed. The facts gathered from the record are as under: Appellant -Neelam was married to Subhash Chander (since deceased) son of Man Singh (respondent No. 1) about 7 years prior to the date of institution of the petition. A daughter namely -Muskan was born out of the wedlock on 28.02.2002. Unfortunately Subhash Chander died on 15.10.2005 at Karnal. The appellant alleged that after the death of her husband a false case under Section 306 of the Indian Penal Code was got registered against her by her parents -in -law/respondents. She was taken in custody and in her absence her daughter Muskan, who was at her parental village Jundla, fell ill and was taken away by the respondents to their village, Sirsal. Pleading that she had since been released on bail and that the behavior of the respondents with minor Muskan was not good as she was being teased by them on one pretext or the other and that Muskan was in growing age and required special attention of her mother, the appellant prayed that she being the natural guardian be handed over the custody of minor Muskan.
(2.) THE respondents contested the petition and in their joint written reply, they disclosed that after Muskan was born on 28.02.2002, appellant Neelam and her husband -Subhash Chander had started living separately. During that period, one Bahadur son of Sunder, resident of Village Jaani started visiting the appellant at her house claiming to be her brother by religion. Once appellant -Neelam was found in a compromising position with Bahadur by her mothering law (respondent No. 2). Despite objection from her in -laws Bahadur carried on to visit Neelam in absence of her husband -Subhash Chander. After some time, Neelam and her brother Pala Ram and said Bahadur shifted the entire household articles of Subhash Chander to Karnal and persuaded him to come and live with them at Karnal. Because of the threatening given to him, he accepted their demand. Subhash Chander visited the respondents time to time and narrated to them the immoral activities of his wife Neelam and Bahadur. On 15.10.2005 Subhash and Neelam visited Village Sirsal for paying obeisance at Mata but did not visit the house of the respondents. On 17.10.2005, at about 5.00 am., the police intimated the respondents that dead body of Subhash Chander was lying on the railway track. A suicide note was recovered from the dead body by the police of GRP, Karnal which revealed that Neelam with the help of said Bahadur and her brother Pala Ram, forced Subhash Chander to commit suicide. A Criminal Case bearing FIR No. 176 dated 24.10.2005 under Section 306 and 120 -B of the Indian Penal Code was registered in which all the aforesaid three persons were facing trial. It was further alleged by the respondents that the custody of minor Muskan was handed over to them by father of the appellant himself in a Panchayat held at Village Jundla on 06.12.2005 and a writing to the said effect was recorded. Neelam having been released on bail vide order dated 10.01.2006 had filed this petition after such long time. Lastly, the respondents submitted that minor Muskan was being brought up by them in a good atmosphere and under proper care and attention. On the other hand, appellant Neelam was involved in immoral activities and was facing trial in a criminal case in which she could be convicted and sentenced and as such she could not be said to be a good mother or guardian. The atmosphere in which she was living could also adversely affect the minor. Also she had no independent source of income and was totally dependent on her parents. Therefore, she would be unable to provide good food, clothes and education etc., to the minor. Submitting that they were providing good education and healthy atmosphere to the child, the respondents prayed for dismissal of the petition. Both the parties adduced evidence in support of their respective claims. Considering the evidence available and the arguments addressed by learned counsel for the parties as well as the welfare of minor Muskan, learned trial Court dismissed the petition filed by Neelam. Feeling aggrieved by the order dated 09.05.2008 passed by the Civil Judge (Senior Division) Kaithal, Neelam filed the instant appeal.
(3.) IT was argued with vehemence on behalf of appellant Neelam that she being the mother of minor Muskan is her natural guardian. She is employed in a hospital and is drawing handsome salary as was proved from the certificate Ex. P1 issued by Jagdamba Hospital, Karnal. The dead body of her husband Subhash Chander was found on a railway track which indicated that he had met with a railway accident, but at the instance of the respondents, who had various scores to settle with Neelam, she was falsely involved in a case under Section 306 of the Indian Penal Code in respect of death of her husband. When she was in Judicial Custody the respondents taking advantage of her absence managed to take away minor Muskan from the parents of Neelam with whom she was residing. Learned counsel asserted that after the death of the father the best and natural guardian of the minor is her mother and not her grand parents. The love, affection and company of the mother is more important for the minor.;