G. M. LODHA, J. - (1.) MOTHER's affection vs. Father's money, is the real cause title of this double tragedy. Its all about Deepu, a child of 2-1/2 years, made a legal football, between mother and father. The billion dollar questions may be posed, warranting answer are : -
(2.) MOTHER's flesh and blood, parting with pregnancy pains, tales and turmoil, carving out a "child" in womb, and resulting in delivery accompanied by terrible pains, giving birth and herself taking rebirth by survival, whether all to be conveniently forgotten on the alter of 'financial superiority claimed by father for depriving mother for flesh of her flesh? Whether mother's affection and dediction out-weights the father's silver coins and Nasik currency, for child nourished on mother's milk? Whether the maternal affection can be allowed to be auctioned? A drunkard father cruel to his wife, whether can claim custody of child, committing double cruelty on child and child's mother, is the pivot of legal debate, devoid of human emotion? A wife being deprived of matrimonial life by cruel husband, whether should be further deprived of motherhood ? Taking child from her, is it less then robbery or decoity? And now the traditional facts. This is an appeal, under section 47 of the Guardian & Wards Act against the order of the District Judge, Bundi. The learned District Judge after discussing the evidence on record has accepted the application of the mother. The child Deepu alias Dinesh aged two and a half years was alleged to have been forcibly taken away by the husband Bhim Raj from the custody of the mother. The learned District Judge has come to the conclusion that in view of the fact that it has come in evidence that the father was a drunkard and used to beat the mother, he is not the proper person who should be allowed to keep the custody of the child and act as guardian. It has also been discussed in the judgment that in view of the interest of the child's welfare, it is not proper to keep the child with the father, because he cannot take proper care. The defence of the husband that the mother has gone in Nata was found to be false. The learned counsel for the appellant submitted that the question of guardianship and custody is different, and the learned lower court has not given any finding warranting appointment of the mother as guardian. He also invited my attention to section 19 of the Guardian & Wards Act. Section 19 reads as under:- "19. Guardian not to be appointed by the Court in certain cases:-Nothing in this Chapter so authorize the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a court of wards or to appoint or declare a guardian of the person: (a) of a minor who is a married female and whose husband is not, in the opinion of the court, unfit to be guardian of her person, or (b) of a minor whose father is living and is not in the opinion of the court, unfit to be guardian of the person of the minor, or (c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor. "
(3.) IT was pointed out that a guardian cannot be appointed unless in the case of father living, he is found to be unfit to be appointed as guardian of the person of the minor IT was argued that the question of guardianship was not in controversy. The learned counsel also pointed out that there is no finding that the father is unfit for remaining and acting as guardian. On a thoughtful consideration of the submissions of the learned counsel for the appellant, & on a careful perusal of the judgment of the lower court, & the statement of the mother, which was read over to me by the learned counsel, I am convinced that the present one is a fit case where the finding that the mother is the proper person in whose custody the child Deepu of two and a half years, or three years will be kept, and further that in view of the facts proved, the father is not a proper person to act as guardian, appears to be correct. Mother's statement was read over before me by the learned counsel in order to substantiate his argument, that the allegation that father used to drink liquor frequently and indulge in beating her, has not been proved. I find from the statement that not a single question was asked to the mother on the important point that the father was in the habit of drinking wine. Even on the question regarding, beating the mother has stated that many a times the beating used to produce bruises on her person. The evidence believed by the lower court on this important aspect of the case itself is sufficient to hold that it would not be in the interest and welfare of the child to keep his custody with the father. The fact that no question was put to the mother on the crucial plaint that the father is a drunkard goes to show that the appellant did not seriously challenge this aspersion this conduct and character. In view of these facts, which have been proved on record, the father is an unfit person to be appointed as guardian. The learned counsel submitted that caring of the father is more and the mother has got no means of earning, and, therefore, the custody of the child should be kept with the father, A part from the fact that the lower court has found that the parents of the mother are maintaining her, I am further of the opinion that the valuable affection of the mother and maternal care, which a mother can take of her child, is too precious and it would be unfair and uncharitable of the child to deprive him of the maternal affection on the basis of better financial resources of the father. The maternal affection and care, which a minor child requires, cannot be replaced by any amount of money and the affection cannot be auctioned or sold by the bids which the parents can give in terms of money on account of having better financial position. It has in these circumstances and the background that section 6 expressly provided that the custody of a minor child below five years of age should be normally kept with the mother, I am, therefore, convinced that on both the counts regarding custody and appointment of the guardian, the judgment of the lower court suffers from no infirmity and it is based on proper appreciation of evidence, and correct exposition of law. 10, The appeal, therefore, fails and is hereby dismissed. . ;