R.P.VYAS, J. - (1.) THIS appeal is directed against the judgment and order dated 15.9.2001, passed by the Judge, Family Court, Udaipur, by which he has allowed the application filed by the Respondent (applicant) Goda under Section 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as 'the Act, 1890') and ordered the appellant (non-applicant) Smt. Jhamku to hand over the custody of the minor child Bhagudi @ Bhagwanti to the appellant-Goda.
(2.) BRIEF facts, giving rise to the instant appeal, are that respondent-Goda filed an application under Section 25 of the Act, 1890, against the appellant-Smt. Jhamku, alleging inter alia, therein that the respondent was married to the appellant and from their matrimony, a girl child named Bhagudi @ Bagwanti was born. Thereafter, the appellant got herself separated from the respondent and has contracted 'Nata' with one Kana S/o Shri Gangaji Dangi. It was further alleged that when the minor child Bhagudi was living with the respondent, the appellant got a search warrant issued from the Additional District Magistrate (City), Udaipur and in pursuance to that warrant, the child was handed over to the appellant. It was also alleged that the appellant was not the wife of the respondent and was not having welfare interests towards the minor child and she intended to get the child married to some person by taking a handsome amount. The appellant submitted a specific reply to the application, denying the allegations made in the application and pointed out that the respondent had contracted 'Nata' marriage with the appellant and prior to that, the respondent was married to one, out of which wedlock he had two children. But he has deserted the previous wife and two children from that matrimony and neither he is in a position to look after those two children of previous marriage, nor is maintaining them. It was stated that the respondent was having unnatural habits and ultimately, he divorced the appellant, according to the customs of the community. It was also stated that the minor child Bhagwanti was in her infancy and was required to remain in the custody of her mother, as she was maintaining the child and was getting her educated in the school. She also stated that only a talk had taken place about her accepting 'Nata' with Kana, but she in her statement had denied the fact of 'Nata' having taken place with Kana.
(3.) THE learned Judge, Family Court, Udaipur, after framing the issue to the effect that whether the respondent Goda was entitled to obtain custody of the minor, examining the respective witnesses and hearing both the parties, allowed the application vide his judgment and order dated 15.9.2001 and ordered to give custody of the minor to the respondent Goda.;