Himachal Pradesh High Court
Bhupinder Singh vs Smt. Kanchan Rani on 28 March, 2000
Equivalent citations: AIR2001HP16, II(2000)DMC365
Author: Kuldip Chand Sood
Bench: Surinder Sarup, Kuldip Chand Sood
JUDGMENT
Kuldip Chand Sood. J.
1. This appeal under Section 47 of the Guardians and Wards Act, 1890. hereinafter referred to as 'the Act', is directed against the judgment of the Senior Sub-Judge. Solan, District Solan (exercising the powers of the District Judge) dated 31-8-1992.
2. It appears kanchan Rani, hereinafter referred to as the wife, was married to Bhupinder Singh, appellant herein and hereinafter referred to as the husband, in the year 1984. Kumari Alka was born out of the wedlock on 4-11-1984. In the year 1990, the wife filed a petition under Section 11 and 13(1) (ia) of the Hindu Marriage Act before the learned District Judge, Solan for declaration that her marriage with the husband is nullity and in the alternative for a decree of divorce on the ground of cruelty. The learned District Judge vide his judgment dated 28-11-1990 held that no legal marriage was solemnised between the parties.
3. The husband and wife I hereafter started living separately. The wife is employed as nurse in the hospital in District Solan. The husband is a tailor by profession at Chamba.
4. On 3-12-1990, the wife moved a petition under Section 25 of the Act for the restoration of minor daughter Alka to her. The case of the wife is :
5. On 1-9-1990. the wife had gone to attend the marriage of her sister at Katwa in Jammu. The husband had also come to attend this marriage. On 3-1 -1990, the husband forcibly took away Kumari Alka against her wishes. It is her case that Kumari Alka was admitted in St. Marry "s convent School, Kasauli and the wife could get admission with great efforts. The husband works as a tailor at Chamba and spend most of his income in drinking and gambling. The wife is an educated woman and employed as nurse. The husband being in impecunious condition is not entitled to the custody of the child Kumari Alka. The wife prays for the custody of Kumari Alka minor daughter of the parties, in the interest of education and welfare of the child.
6. The husband resisted the petition, the allegations are controverted. The case of the husband is : Kumari Alka was residing with the husband at Chamba since her birth and is still living with him. Kumari Alka was attending the school at Chamba at the relevant time. It his case that Kumari Alka is studying in Bhartiya Public School at Chamba since 1990 and is being looked after by the husband. The wife, it is pleaded, being a lady in service has no time to look after the child due to her busy schedule and it is not in the interest and welfare of the minor child to handover her custody to the mother.
7. On the pleadings of the parties, the following issues were settled by the learned trial Judge :
" 1) Whether welfare of the child would be better looked after by petitioner ?......
........ Opp.
2) Whether this Court has no jurisdiction? .......... OPR.
3) Relief."
8. The learned trial Judge found that the welfare of the child lies in the custody of the wife, the objection of the husband that the Court at Solan has no jurisdiction has been overruled. The petition was allowed and custody of the child was given to the mother by the impugned judgment.
9. Feeling dissatisfied with the judgment of the learned trial Judge, the husband has filed the present appeal.
10. It may be noticed at this stage that the respondent-wife did not appear despite service. However, when this matter came up for hearing on 23-02-1999. this Court noticed that the mother has not shown any interest to enter appearance and contest the appeal. In the circumstances of the case, Mr. K.D. Sood, Advocate, was appointed as amicus curiae to assist the Court in the matter. This Court also directed Mr. V.L. Chauhan, learned Deputy Advocate General to assist the Court by locating the whereabouts of the wife and serve a notice on her about the next date of hearing to enable her to appear in the Court with a counsel or give instructions to Mr. K.D. Sood, amicus curiae. The appeal was directed to be posted for hearing on 28-3-2000.
11. We notice that the wife is not present in spite of the notice served on herwhere she is residingnor she has instructed the amicus curiae. Mr. M.L. Chauhan, learned Deputy Advocate General states that the wife was served with the notice through the Medical Superintendent. T.B. Sanatorium. Dharam-pur, where she is working as nurse, He further states that she was specifically asked to be present in the Court today by the Medical Superintendent. It is apparent that the wife is not interested to contest this petition.
11A. We have heard Ms. Shyama Dogra, learned counsel for the appellant, Mr. K.D. Sood, amicus curiae and gone through the record. We also ascertained the wishes of Kumari Alka, who is present in the court. Her statement has separately been recorded. According to her she is living with her father at Chamba, for the last 10 years. She lives in the house of her father along with her grand mother, father's sister and other members of the family. She is studying in Bhartiya Public School, Chamba and has appeared for her annual examination for class IX, It is her statement that her father is maintaining, educating and looking after her and she wish to continue living with her father and get education.
12. There is no scope for dispute that the paramount consideration for the custody of a child is the welfare of the child and nut right of the parent as observed by the Apex Court in Rosy Jacob v. Jacob A. Chakramakkal, AIR 1973 SC 2090. The word 'welfare' has a wide meaning which covers both material and physical well being, education, health, happiness and moral welfare of the child. The Court has to take into consideration, the age and sex of the minor, the background of the family, the capacity of the guardian, and not less important the wishes of the minor where he or she is of the age of discretion to express his or her preference.
13. In the present case, minor Kumari Alka is living happily with the father for the last 10 years, she is getting good education. Her report card mark 'A' shows that she secured 88.25% marks in her annual examination of 1992. Mr. K. D. Sood, amicus curiae submits that he spoke to Kumari Alka in detail and he is satisfied that welfare of Kumari Alka would be best served in the custody of her father. Kumari Alka is about 16 years of age and her desire to live with the father is an important factor which cannot be ignored.
14. Taking into consideration the totality of the circumstances, the fact that Kumari Alka is happily living with the father and grand mother, getting proper education, is not suffering from any want and further the fact that the wife has not put in appearance, In spite of service of notice, to contest this appeal, which in turn shows she is no longer interested in the custody of the child, we are satisfied that interest and welfare of Kumari Alka He in continued living with the father. 15. In result, we allow the appeal. The impugned judgment of the learned Senior Sub-Judge (exercising the powers of the District Judge) is set aside. As a result, the petition of the wife, under Section 25 of the Act, stands dismissed. No order as to costs.