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High Court Of Himachal Pradesh
KAMLESH SHARMA
DOLKU NIHAL SINGH - Appellant
Versus
NIHAL SINGH KARNAIL SINGH - Respondent
F.A.O. No. 266 of 1983
Decided On : 12/17/1990
CUSTODY OF MINOR - WELFARE OF MINOR - PARAMOUNT CONSIDERATION - FATHER'S RIGHT TO CUSTODY - NOT ABSOLUTE - MOTHER'S RIGHT TO CUSTODY - NOT TO BE DENIED MERELY BECAUSE SHE HAS NO SOURCE OF INCOME - STEP-MOTHER'S AFFECTION AND CARE - CANNOT BE PRESUMED TO BE EQUAL TO THAT OF MOTHER - FATHER'S SECOND MARRIAGE AND DUTIES AS DRIVER - RELEVANT FACTORS - CUSTODY GRANTED TO MOTHER.
Fact of the Case:
Father (appellant) filed a petition under Section 25 of the Guardians and Wards Act seeking custody of his minor daughter, Saroj, from the mother (respondent). The father alleged that the mother was not sending the child to school, was not taking proper care of her, and that the child had broken her leg while attending to chores. The mother denied these allegations and claimed that the father had filed the petition as a counterblast to her petition under Section 125, Cr. P.C. for maintenance for herself and the child.
Finding of the Court:
The court held that the welfare of the minor child was the paramount consideration in determining custody. It found that the allegations made by the father against the mother were not substantiated by the evidence. The court also noted that the father had remarried and had children from his second wife, and that the nature of his duties as a driver required him to be away from home for extended periods. The court concluded that it was in the best interests of the child to remain in the custody of her mother.
Issues: 1. Whether the father has a preferential right to the custody of the minor child over the mother? 2. Whether the mother's lack of financial means is a sufficient reason to deny her custody of the minor child? 3. Whether the father's second marriage and duties as a driver are relevant factors in determining custody?
Ratio Decidendi: 1. The court held that the father's right to custody of the minor child is not absolute and must be balanced against the welfare of the child. 2. The court held that the mother's lack of financial means is not a sufficient reason to deny her custody of the minor child, as the father has a legal and moral duty to provide maintenance for the child. 3. The court held that the father's second marriage and duties as a driver are relevant factors in determining custody, as they may affect his ability to provide proper care and attention to the child.
Final Decision: The court allowed the appeal, set aside the judgment of the lower court, and granted custody of the minor child to the mother.
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, u/S. 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 minors 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 bound 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 parenspatriae jurisdiction arising in such cases giving due weight to the circumstances such as a childs 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 Courts 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 u/S. 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 con-cerned, 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 h
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