IMPORTANT POINTGuardians and Wards Act, 1890 Section-25 Custody of child - Consideration therefor - Welfare of child - It is important to note that it is welfare of the child which is to be considered - The custody cannot be handed over on the mere asking of a father or a mother or any other person claiming it - The welfare of the child is paramount. (Case of Rosy Jacob v Jacob A. Chakramakkal : (L Chandran v Mrs. Venkatalakshmi and another: Smt. Gangabai v Bheru Lal: Tarun Ranjan Majumdar and another v Siddhartha Datta: Smt Narbada v Sita Ram) - Refers. (Para -14)

Dev Darshan Sud, J.- This appeal has been preferred by the father of the child whose custody he seeks under Section 25 of the Guardians and Wards Act, 1890, (hereinafter referred to as the `Act’), against the judgment of the learned Senior Sub Judge, Mandi declining him custody.

2. It is undisputed that the parties to this appeal were married on 10.8.1990 and Prashant, whose custody is sought by the appellant, was born in December, 1991 and was aged about 6½ years at the time when the petition was instituted.

3. It was pleaded by the appellant that the respondent left the matrimonial house without any reasonable excuse as the relationship between the parties became bitter and strained. The appellant pleaded that the respondent with some ulterior motive instituted a false petition under Section 97 of the Code of Criminal Procedure before the learned Additional Chief Judicial Magistrate, Sundernagar, in which search warrants were issued against the appellant. Pursuant to the orders dated 27.8.1998, passed in that petition, the custody of the child was handed over to the respondent-mother and the child was living with her w.e.f. 27.8.1998. Proceedings under Section 125 of the Code of Criminal Procedure were also instituted by the respondent against the appellant. It is also undisputed before me that the petition under Section 9 of the Hindu Marriage Act, 1955, instituted by the appellant herein was dismissed but was compromised in this Court in the year 1998.

4. The petition was opposed by the respondent-mother on the ground that she was forcibly thrown out of the house by the petitioner, appellant and his parents and was threatened with dire consequences if she dared to return. She pleaded that they even threatened her that they would kill her. She pleads that the appellant is a drunkard and was harassing the respondent and her parents with constant demands of dowry. In August, 1998 while she was ill, she was beaten mercilessly for 3/4 days and she was not given any medical aid and attention. In these circumstances she was forced to leave the house and part with the custody of the child who was illegally confined by the appellant and his family members which prompted her to initiate proceedings under Section 97 of the Code of Criminal Procedure for his recovery.

5. On the settled issues and more especially issue No.1, which reads:

“1. Whether petitioner is entitled tothe custody of the minor ward Prashant? OPA.”

which is the crux of the case, the learned Court below on the evidence on record held that the appellant was not a fit person to whom the custody of the child could be granted.

6. PW-2 Puran Singh, appellant,appeared as his own witness and testified that the respondent used to leave the matrimonial home without any justifiable cause. He states that a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights had been filed by him which petition was ultimately compromised in this Court and the respondent lived with him between 1992 to 1998. He states that the respondent was not mentally fit in July, 1998 and he brought her to his house for treatment. She thereafter went to the house of her father while the child remained with him for the reason that the respondent was mentally unfit to look after the welfare of the child. He states that she is not in a fit mental and economic condition to maintain the child nor does she have the necessary means to support and bring up the child and that she has filed a suit in forma paupris claiming maintenance from him for herself and their child. He is the only fit person who can look after the welfare of the child in the best possible manner and to educate him in a good school.

7. PW-2, Shri Onkar Singh, uncle of the appellant states that after marriage of the parties to this appeal, there were disputes and differences between them and the matter was referred to the Panchayat which was ultimately settled by a compromise in this Court.

8. Respo