Punjab-Haryana High Court
Balbir Kaur vs Jit Kaur And Others on 10 October, 2000
Equivalent citations: AIR2001P&H124, AIR 2001 PUNJAB AND HARYANA 124, (2000) 2 CURLJ(CCR) 598, (2001) MATLR 250, (2001) 1 PUN LR 859, (2001) 1 RECCIVR 148, (2001) 1 ICC 621, (2001) 1 ALLCRILR 31, (2001) 3 CIVLJ 166
JUDGMENT S.S. Sudhalkar, J.
1. The dispute in this case is regarding custody of minor Amrik Singh alias Biiti (hereinafter referred to as the "minor). He is son of appellant Balbir Kaur. Gurdev Singh was the husband of the appellant. Respondent No. 1 Jit Kaur is mother of Gurdev Singh and respondent No. 2, Kuhvant Singh is brother" of Gurdev Singh. Respondent No. 3 is minor himself.
2. The appellant was married to Gurdev Singh in the year 1991. The minor was born on 5.1.1992. In the initial period after the marriage, appellant and Gurdev Singh lived together. Appellant gave birth to two children, the minor and a daughter. However, dispute started between them which ultimately resulted in appellant's leaving her matrimonial house and going to her parental house with her daughter. Minor remained at the husband's house. Subsequently, Gurdev Singh committed suicide and it is the case of the respondents that he committed suicide because of the quarrels of the appellant and he left a suicide note also and a case under Section 306/34 of the Indian Penal Code is pending against her and her parents.
3. Appellant filed a petition for declaration that she is natural guardian of the minor and also his person, property and custody.
4. Evidence was led before the trial Court and it at the conclusion of the trial by the impugned judgment dismissed the petition. This appeal is, therefore, filed by the appellant.
5. I have heard learned counsel for the parties and gone through the record.
6. I have also called the minor in the Chamber. He did not want to go to the house of the appellant.
7. Counsel for the appellant argued that the appellant is the mother and she is entitled to the custody of the minor and that she is able to keep him properly. The reasons for separation of the appellant from her husband given by the appellant are not admitted by the respondents. However, I do not think that they should have any bearing on the merits of this case. However, some allegations may be noted. According to the ap-pellanl her husband was working as a Beldar in Ranjit Sagar Dam and lived at Ucha Thara Colony and that he had left the appellant and his children in his native house at Sham Churasi with his mother and brother. In December, 1995 he came to his village and on the instigation of his mother he gave abuses, slaps and fist blows to the appellant and went back to his work saying that she must leave his house and return only if she brought money, colour TV and Scooter from her par-
ents. Three days thereafter, respondents No. I and 2 gave slaps, fist blows and gave her push due to which she fell on the ground and sustained injuries. Father of the appellant was called and she and her daughter were sent with him to her parents' house and the respondents retained the minor.
8. In the written statement it is conceded that the appellant always quarrelled with her husband and levelled false allegations againsl respondents No. 1 and2. It is also contended that in June, 1996, appellant jumped from the roof for the purpose of commilting suicide but she levelled false allegation against respondent No. 1 that she pushed her from the roof. Appellant also levelled false allegations against respondent No. 2 and always insisted to live with her husband at the place of his service but the husband showed his inability to keep the appellant and the children with him and due to this the appellant always look quarrel with her husband and ultimately on 12,11.1996 the husband committed suicide.
9. In this case the contest is, therefore, between the mother of the minor and grand-mother and uncle of the minor. As mentioned earlier, what transpired between the parties prior to the death of her husband will have no bearing on the merits of the case, the reason being that the question to be seen is who should be given the custody of the minor. The appellant is not wanting to stay at the house of the respondents. Therefore, reasons for the quarrel have lost importance. In other words, it may be mentioned that there was no dispute between the appellant and the minor and, therefore, the quarrels which took place earlier between the appellant, her husband and in-laws will not be material.
10. Next question is regarding income of the parties. The appellant in her deposition has stated that she is working in a Chappal factory and is earning Rs. 1500/-per month and is living with her parents at Jalandhar. According to her, respondent No. 1 is 60 years old and is not doing any work. She has further stated that her husband's younger brother (respondent No. 2) is a Postman and he does not spare any money.
11. As against this respondent No. 1 has stated that she 13 getting family pension amounting to Rs. 1500/- per month and that respondent No. 2 is serving in the Army and is getting Rs. 4000/-- per month as salary and respondent No. 2 used to send Rs. 1500/- or Rs. 2000/-for her and minor maintenance. She has also stated that father of the appellant is a labourer and that appellant has seven sisters out of them four are married and the remaining are unmarried. In the cross-examination, she has stated that respondent No. 2 is not married and he is engaged and they are going to perform his marriage in the coming Navratras. She has also stated that she has money order receipts regarding the money sent to her by their son and she can produce them in the Court. She has also stated that authorities sent her pension by money orders in her bank and she denied a suggestion that she is not getting pension of Rs. 1500/- per month. In the cross-examination she has stated that fa-
ther of the appellant is a contractor of painting works and that 6-7 persons worked under him. She has denied that father of the appellant earned Rs. 5000/- or Rs. 6000/- per month and that his son also cams Rs. 4000/-or Rs. 5000/- per month. She has voluntarily stated that brother of the appellant is a labourer. She has further stated that father and son do the work of painting. She has further stated in his cross-examination that she has not seen that the appellant does not work of finishing the scaps (straps ?) of rubber chappals and earned Rs. 1500/- permonth, however, she is staying with her parents.
12. The appellant has examined herself and Tek Chand and Daulat Ram as her witnesses whereas respondents have examined respondent No. 1 and one Satish Kumar as their witness. After the respondents' deposition was over, their advocate tendered into evidence postal receipts Ex. Rl to R3 and the School Certificate from Ihe School where the minor is studying.
13. Counsel for the appellant has relied on some reported judgments. He cited the case of Keshav Ram Thakur and another v. Smt. Suchhibai, A.l.R. 1999 Madhya Pradesh 260. In that case father of the child had died in an encounter with Naxalites and the child was staying with his mother and paternal grandparents. The mother was forced to live away from her matrimonial home and the child has shown his disinclination to stay with his mother. It was held that this is due to his long separation from his mother and that would be a temporary phase and that grandparents' love cannot be a substitute for mother's love and affection. The mother was found capable of giving him proper education as she had received ex gratia payment and terminal benefits of her husband. The grandparents were aged 73 and 60 years whereas the mother was aged below 30 years. It was held that the mother alone is entitled to custody of her minor son.
14. Counsel for the appellant has also cited the case of Poonam Datta v. Krishanlal Datta and others, AIR 1989S.C. 401. In that case the Supreme Court directed that minor child would live with his mother, however, it permitted child's grandfather to take child to his residence during every week-end and further directed the parties to do nothing which would be adverse to interest of child or affect it physically or mentally in any manner.
15. In the present case, keeping in view Ihe facts of this case and the decisions of the Courts as cited above, it will have to be seen as to who will be a better guardian of minor. Though it is mentioned in the petition that the appellant wanted to be a guardian of the property of the minor, it is not shown that the minor is having any property. Therefore, the question of custody of minor has to be decided. The appellant is earning Rs. 1500/- per month. Respondent No. 1 is getting Rs. 1500/- per month as family pension. Respondent No. 2 is earning and according to respondent No. 1 he is sending to her Rs. 1500/- or Rs. 2000/- per month for maintenance. Respondent No. 2 is not married and it is not known whether after his marriage he will be able to spare any amount for the minor. It may be mentioned that respondent No. 2 has not stepped into the wintess box.
16. Respondent No. 1 is 60 years of age. Appellant's father is working as a contractor. Though no evidence has been led to corroborate his income, the fact remains that the appellant is staying with her father. Considering all the facts and circumstances of the case, I find that the appellant will be better guardian of the minor. Moreover, she is mother of the minor. There is nothing shown as to why the appellant should be deprived of the custody of the minor. Another thing which weighs with me is that when I questioned the minor he was called in the Chamber. Along with him a minor girl also came in the Chamber but she did not speak anything. The minor told that she is his sister. The quarrels in the family have led to separation of the appellant from her husband (during his life time) and after his death a brother (i.e. minor) is separated from his sister. If the present position continues, his own sister will be stranger to him and he will be stranger to his sister. By keeping the custody of the minor with the respondent, there is no likelihood of the appellant meeting with the minor in view of the criminal cases and the allegations against each other. Considering all these aspects, I find that custody of the minor should be given to the appellant.
17. As a result, this appeal is allowed. The judgment of the trial Court is set aside and the petition of the appellant is allowed. The respondents shall hand over the custody of the minor to the appellant within a period of two months from today failing which she shall be at liberty to gel the order executed.
18. Appeal allowed.