Himachal Pradesh High Court
Mst. Dolku Nihal Singh vs Shri Nihal Singh Karnail Singh on 17 December, 1990
Equivalent citations: AIR1992HP3
JUDGMENT Kamlesh Sharma, J.
1. This is an appeal against the judgment dated 5-10-1983 of Senior Sub Judge, Chamba, exercising the powers of District Judge whereby the application of respondent, Sh. Nihal Singh, Under Section 25 of the Guardians and Wards Act was accepted and the custody of minor Saroj was given to him. Sh. Nihal Singh is the father and appellant-respondent, Mst. Dolku, is the mother of minor Saroj.
2. I have heard the learned counsel for the parties and have gone through the record of the case. The Senior Sub Judge has given the custody of minor Saroj to Sh. Nihal Singh holding, inter alia, that he has a preferential right to Mst. Dolku and also that he has better financial means to bring up the minor. According to the Senior Sub Judge, second marriage by Sh. Nihal Singh, children from the second wife and nature of his duties as Driver are not sufficient reasons to deny him the custody of the minor.
3. By now it is well settled that in the proceedings for the custody or upbringing of a minor, the welfare of the minor is the only consideration irrespective of the claims of the parties to the custody. The Supreme Court in Rosy Jacob v. Jacob A. Chakramakkal, AIR 1973 SC 2090 and Thrity Hoshie Dolikuka v. Hoshiam Dolikuka, AIR 1982 SC 1276, has laid down that in the matters concerning a minor, the Court has a special responsibility to protect the minor's interest and the Court is to be guided by the only consideration of welfare of the minor. In this regard, the following observations of P.D. Desai, Chief Justice, in Kamla Devi v. State of Himachal Pradesh, ILR 1986 HP 485 : AIR 1987 HP 34 are very pertinent (at page 37 of AIR):--
"As observed earlier, the Court while deciding child custody cases in its inherent and general jurisdiction is not hound by the mere legal right of the parent or guardian. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases giving due weight to the circumstances such as a child's ordinary comfort, contentment, intellectual, moral and physical development, his health, education and general maintenance and the favourable surroundings. These cases have to be decided ultimately on the Court's view of the best interests of the child whose welfare requires that he be in custody of one parent or the other."
4. When the petition for the custody of minor Saroj was filed, she was seven years of age, according to Mst. Dolku. The allegations made in the petition were that Smt. Dolku was not sending minor Saroj to school and was taking house hold work from her. It was also alleged that Smt. Jolku was not taking care of minor Saroj and Saroj had broken her leg while attending to chores. Smt. Dolku had denied all these allegations.
5. According to Smt. Dolku, Sh. Nihal Singh had filed the present petition as counter blast to her petition Under Section 125, Cr. P.C. for maintenance to her and minor Saroj.
6. On the basis of evidence on record, it is to be examined whether the welfare of minor Saroj is in giving her custody to her father Sh. Nihal Singh or to her mother Smt. Dolku. So far as the allegation of Sh. Nihal Singh that minor Saroj was not sent to school is concerned, it is not correct. A teacher from Primary School, Malal, Sh. Gian Chand (R.W.3), has stated that minor Saroj was admitted in the School on 24-9-1981 and was studying in 2nd class. He has further stated that minor Saroj was keeping good health. She used to wear good clothes. According to him, minor Saroj did not hobble. In cross-examination he has admitted that he was told by other that Kumari Saroj was not good at studies during the previous year as she was not keeping well.
7. The other allegation is that minor Saroj was not being looked after properly and she had got her leg fractured while attending to chores. It has been admitted by Smt. Dolku that minor Saroj had broken her leg while going to school. She and her brother, Sh. Des Raj (R.W.2), have further stated that proper treatment was given to minor Saroj after her leg was fractured. This has also been admitted by Sh. Nidhia (P.W. 3). The minor contradiction in the statement of Smt. Dolku and her brother, Sh. Des Raj, that minor Saroj had broken her leg while going to school or while coming from school is of no consequence. The Senior Sub Judge has wrongly believed the allegation of Sh. Nihal Singh that minor Saroj had broken her leg while working in the jungle. He has drawn wrong inference from the statement of Sh. Des Raj (R.W.2) that minor Saroj used to carry as much load as she could. Even if it is correct that minor Saroj was put to some house hold work and had accidently broken her leg, it cannot be Concluded that she was not being looked after properly by her mother, Smt. Dolku. It is common knowledge that in villages children have to help their parents in the performance of house hold affairs. Besides, the fracture of her leg, minor Saroj was keeping good health as stated by Sh. Piar Singh (P.W. 2) and Gian Chand (R.W.3), Minor Saroj is the only child of Smt. Dolku and it is too much to say that she had been putting her to such house hold work as to endanger her life.
8. So far as the comparative financial position of the parties is concerned, it is correct that Sh. Nihal Singh is employed as Driver and is earning more than Smt. Dolku. But it is also correct that after divorcing Smt. Dolku, Sh. Nihal Singh has married second time. He has children from his second wife. He himself and his witnesses have unequivocally admitted that the nature of duties of Sh.
Nihal Singh as Driver is such that he generally remains away from his house for a number of days. In these circumstances, it is clear that if the custody of minor Saroj is entrusted to her father, Sh. Nihal Singh, she will beat the mercy of her step mother. Though it cannot be presumed that the step mother will not give affection and take proper care of minor Saroj, yet, in the normal dourse she having her own children will not be able to give as much affection and attention to her as her own mother, Smt. Dolku. A child cannot be deprived of the affection and care of its mother only on the ground that the mother has no source of income to maintain it. It is the legal as well as moral duty of the father to provide maintenance for the child. In the present case, the Chief Judicial Magistrate, Chamba, vide his order dated 31-5-1983 has already fixed Rs.60/- as maintenance for minor Saroj as well as for Smt. Dolku. Smt. Dolku is residing in the house of her parents and is being supported by her parents and by her brother. Her parents have 15-20 Bighas of land. According to Smt. Dolku and Sh. Des Raj, her brother, she is supplementing her income by selling milk. Therefore, in my opinion, the custody of minor Saroj cannot be given to Sh. Nihal Singh on the ground that is in better position to maintain her.
9. Lastly, there is another important circumstance to doubt the bona fide of Sh. Nihal Singh to have the custody of minor Saroj, keeping in view her welfare. Admittedly, Sh. Nihal Singh had filed the present petition on 22-2-1983 when he had known that he would be burdened with maintenance of minor Saroj by the Chief Judicial Magistrate, Chamba. The application u/S. 125, Cr. P.C. was filed by Smt. Dolku claiming maintenance for herself and minor Saroj on 8-7-1982. Has Sh. Nihal Singh been so much concerned about the custody of minor Saroj as he has tried to show, he would have filed this petition earlier. Admittedly, the parties had divorced about two year ago and since then minor Saroj had been living with her mother, Smt. Dolku.
10. Therefore, in my opinion, Sh. Nihal Singh is not entitled to the custody of minor Saroj keeping in view her welfare, more so, when being a daughter minor Saroj needs the care, attention and guidance of her mother Smt. Dolku. By now, minor Saroj is of about 14/15 years of age. She has been living with her mother during all these years as the impugned judgment dated 5-10-1983 was stayed by the interim order dated 9-I-I984 of this Court. By another order dated 1-6-1984, the interim order dated 9-1-1984 was modified to the extent that visitation rights were given to Sh. Nihal Singh. As neither of the parties has complained against the interim arrangement in respect of visitation rights to Sh. Nihal Singh, I have reasons to believe that it has worked well. I direct that this arrangement will continue in future.
11. Before parting with this case, I may point out that efforts to ascertain the discretion of minor Saroj who is about 14 years of age now, have failed. Minor Saroj has not been produced before me, by the parties despite my directions on 3-10-1990, and further opportunities given to them on 26-10-1990 and 16-11-1990.
12. In the result, the appeal is allowed and the judgment dated 5-10-1983 of Senior Sub Judge, Chamba, is set aside. In view of the circumstances of the case, there is no order as to costs.