Punjab-Haryana High Court
Charan Kaur vs Ujagar Singh on 23 March, 1994
Equivalent citations: (1994)108PLR277
JUDGMENT G.C. Garg, J.
1. This is an appeal at the instance of an unfortunate widow who is clamouring for the return and custody of her three minor children presently being brought up by their grand-father, the respondent. Married to one Harnek Singh in the year 1972 and blessed with three sons, namely, Gurcharanjit Singh, Surjit Singh and Gurbinder Singh, the appellant was moving on the wheel of normal life when she lost her husband in an accident on September 6, 1983. Shortly after the death of her husband the appellant left the house/village of her in-laws after executing a writing Exhibit R.1. On April 24, 1985, the appellant filed a petition under Section 25 of the Guardians and Wards Act, 1890 (for short 'the Act') for the return and custody of her minor children.
2. The material facts of the case may now be stated. According to the appellant, at the time of death of her husband she had no source of income and, therefore, she was persuaded to leave, the children with her father-in-law, the present respondent. She was later employed as Beldar with effect from June 1, 1984 and confirmed in her service on March 13, 1985. She was drawing a sum of Rs. 63730 paise as her monthly salary and, thus, has now got sufficient means to maintain her children. She alleged that her father-in-law was an old man of 65 years and had a meagre income. He had two unmarried daughters and a minor son to bring up. It was alleged that her children were not being properly looked after. The respondent wanted to deprive her from using the property of her late husband. She now having permanent source of income was capable of taking care for the welfare of the children. The respondent resisted the petition and alleged that it was not on a proper form and, thus, not maintainable. The respondent alleged that appellant left the house and by virtue of a writing she left the children under his care because she had no love or affection for them. The respondent claimed that he was an able-bodied person and drawing pension. It was alleged that the appellant had no source of residence and there is a large family of the parents of the appellant who are almost dependent on her.
3. The above allegations of the respective parties gave rise to the following issues:
(1) Whether petitioner is not maintainable in the present form? OPA (2) Whether petitioner is entitled to the guardianship and custody of the minor children? OPA (3) Whether the respondent has sufficient means to maintain the minor children? OPA (objected to) (4) Relief.
4. Parties led evidence oral as well documentary in support of their respective claims.
5. While issue No. 1 was decided against the respondent, issues 2 and 3 were answered in favour of the respondent and against the appellant. Resultantly, the petition was dismissed, by the, Guardian Judge, Rupnagar by its order dated March 28, 1987.
6. Having remained unsuccessful before the Guardian Court, the mother has filed the present appeal.
7. The sole question that fell for consideration before the Guardian Judge was as to who Could better look after and maintain the children and where the interest of the children lay. On consideration of the entire matter, the Guardian Judge came to the conclusion, "the totality of circumstances" clearly shows that the interest and welfare of the minor children is with this respondent and not with the petitioner. The learned Judge further observed, "In view of the circumstances highlighted above, despite the fact that petitioner is real mother of minor children, she is not found to be entitled to the guardianship and custody of the children. The respondent is found to be man of sufficient means to look after and maintain the children according to the status of the family."
8. Shri B.S. Gupta, Senior Advocate, learned counsel appearing on behalf of the appellant strenuously contended that the appellant has now sufficient means to look after the three children who are admittedly her sons. She being a mother of the children is supposed to have great love and affection for them and can watch the interest and welfare of her sons in comparison to their grand-father. On these premises, it was submitted that the appellant was entitled to the guardianship and custody of the children. Submissions made by Mr. Gupta were hotly opposed by the learned counsel appearing on behalf of the respondent. Learned counsel for the appellant in support of his contentions relied upon Brejendra Narayan Ganguly and Anr. v. Chinta Haran Sarkar and Anr., A.I.R. 1961 M.P. 173; Rosy Jacob v. Jacob A. Chakramakkal, A.I.R. 1973 S.C. 2090 and Smt. Nirmal Jain v. The State and Ors., A.I.R. 1983 Delhi 120.
9. While dealing with the question of custody of children the primary considerations that are essentially required to be kept in mind are, the interest and welfare of the children besides, as to which part can better look after and maintain them. There is one more aspect that tool may sometime require consideration by the Court, i.e. if the children are grown-up and intelligible enough and can well understand the difference between good and bad, their inclination can be given due weight, for the word 'welfare' has a very wide definition and the preference formed by the children may assist the Court to pass an appropriate order. There cannot be any doubt that mother would do her best to promote her children's welfare and would not leave any stone unturned in sacrificing her own personal interest and pleasure. This is so because of natural, selfless affection normally expected from a mother for her children. In Rosy Jacob's case (supra), the question for the return of wards to the custody of his parents drew attention of the Supreme Court, wherein after elaborately considering various aspects, it was observed:
"The Court's power under Section 25 of the Guardians and Wards Act is also, in bur opinion, to be governed primarily by the consideration of the welfare of the minors concerned The discretion vested in the Court is, as is the case with all judicial discretions, to be exercised judiciously in the background of all the relevant facts and circumstances. Each case has to be decided on its own facts and other cases can hardly serve as binding precedents, the facts of two cases in this respect being seldom if ever identical."
The above observations of the Supreme Court clearly lessen the burden of making fishing search for the precedents and making them the basis for arriving at a conclusion. In other words, it is only the facts and circumstances of the case in the context of the Welfare of the minor children; which are of paramount consideration. In the face of the above position of law, there is hardly any necessity to minutely go through the other judgments cited by the parties and, thus, inevitably I must advert to the facts and circumstances of the case in hand.
10. After giving my thoughtful consideration to the entire matter, I am not impressed with the contention of the learned counsel for the appellant. The husband of the appellant had died way back in September, 1983. The appellant at that time was not employed and thus, apparently had no source of income. Shortly after the death of her husband, the appellant left the house/village of her in-laws thereby abandoning her three minor sons of the ages ranging between 2 to 9 years. By executing a writing Exhibit R.1, which is thumb-marked not only by her but also by her father and others, she left the minor children in the house of her husband having no regard to any love and affection for them. She even did not care for the age, health and education of the children who after the death of their father needed extra attention and care at the hands of their mother, the appellant. There is no allegation on behalf of the appellant that she had to leave the house as well, as the children under some compelling circumstances. A mother, especially after the death of her husband, is supposed to be cautious enough to give more love and affection to her budding children. But the appellant in the present case abandoned her children like a waste-paper and preferred to stay with her own parents. What would have happened on the minds of the minor kids when the appellant had left them in perplexing situation is beyond one's imagination. In these circumstances there remains a little doubt that the appellant had no attachment with the children. She appears to have been made wiser later on by someone and thus moved the Court for the return of the wards to her custody about 20 months after she left the matrimonial house.
11. Another fact of which note should be taken is that the appellant though, in whatever circumstances, had abandoned her children or had to leave the matrimonial house even then, if she had any love and affection for her children, it was quite Open to her to move the Court or otherwise demand her kids back much earlier. If now she has come to the Court with a plea that she having been appointed as a Beldar and getting six hundred and odd rupees has sufficient means to support her children, therefore, they be returned to her custody, at least there was no obstacle in her way to do so in June, 1984 as according to her she joined the job on June 1, 1984. The appellant, however for the first time approached the Guardian Court on April 24, 1985 for the return of the wards, to her custody and this way about nine and a half years have gone by since she left the house throwing her children in the lap Of their grand-parents and it is now too late because the children are now well settled in the house of the respondent as with the passage of time they seem to have compromised with the situation and developed their minds to live with their grand-parents.
12. Another fact which cannot lose sight of is that the love and affection, apparently an essential ingredient of the definition of 'welfare' have two edged passion. In the present case, first it does not: appeal to any reason that if the appellant really has some love and affection for her children and at the relevant time if she was forced by some circumstances to abandon the children, though it, is not the case of either of the parties, and that she had an intention to take the children back, then what was the necessity of executing a writing by the appellant whereby she entrusted the children to their grand-parents. This also goes to show that she had no love and affection for them. Similarly, the children also now with the passage of lime have lost their love and affection that can be expected from them for their mother. This is so evident from the fact as during the course of hearing I had an occasion to send for the children to the Court when the parties were present in person. I afforded an opportunity to the mother to talk to the children but the letters clearly refused to have talks with the appellant. I also independently put various questions to the children and the replies given by them were too comprehensible that there did not remain any doubt that the interest of the children is in their staying with the respondent in their own house and not with the appellant, because from the behaviour and attitude of the children, it seemed that they have developed some sort of hatred towards the appellant who perhaps had not been able to bestow her love and affection during the last about more than nine years.
13. In the face of the circumstances noticed above now it is also necessary to have a look on the atmosphere at the house of the respondent where the children are being brought up ever since they were thrown by their mother. It is also worthwhile to notice the circumstances in which the children are staying and to consider as to what the respondent has done and can do in future also, for the welfare of the children. During the course of hearing the respondent was sent for who appeared in Court on July 13, 1993 and made a statement on oath that he owned 16 houses in village Jhingran Khurd, presently valued at Rs. 16 lacs. He was drawing pension of Rs.2,000/- per month. Besides this he had an income of Rs. 3,000/- per month from sale of milk as he had ten buffaloes and three cows. By showing a copy of the decree-sheet, the respondent informed the Court that he had transferred two of those houses in the names of three minor children. The eldest child is now aged about 18 years. There is, thus, no question of returning him to the custody of the appellant, he being already a major or going to be so shortly. As regards the other two, one is aged 15 years and studying in 6th Class and the second one is aged 12 years and studying in 5th Class. The respondent being a pensioner and even if doing the work of sale of milk is always available in the house to take proper care of the children. There is no doubt about his capacity and capability for maintaining the children whereas on the other hand, the appellant is admittedly employed at a station situated at the distance of about 13 miles from the place of her residence and thus has to spend almost the whole day in attending to the job, going and coming back thereafter. She would thus have not much time to devote to their children. I fail to understand how the appellant can be expected to bestow her motherly love on her children who during the last nine years did not make a single attempt to see her children in the school. A suggestion was given to the appellant during the hearing of the appeal if she was interested in seeing her children in the school. She replied that she had no interest to see them as the children were not interested in seeing her. In these circumstances it would not be in the interest of the children if at this juncture they are returned to the custody of their mother, the appellant.
14. Thus viewing all the facts and circumstances, noticed above, to mention in brief again, viz. background of writing Exhibit R.1 delayed filing of petition under Section 25 of the Act, refusal of the children to meet their mother, the children already getting proper care as also the education in the respondent's house, some property having been transferred by the respondent in their name and all other relevant factors, I am fully convinced that the welfare of the minor children will be better taken care of if they continue staying in the house and custody of the respondent and it will be detrimental to their interest if they are returned to the custody of the appellant. The judgments relied upon by the learned counsel for the appellant have hardly any bearing on the facts and circumstances of the present case.
15. In the result, the appeal fails and is hereby dismissed. There shall, however, be no order as to costs. It shall, however, be open to the appellant to meet the children at any time either in the school where they are studying or at the place of their residence.