IMPORTANT POINT
Remarriage of mother cannot be taken as a ground for not granting custody of child to the mother.

Dev Darshan Sud, J.—This appeal has been preferred by Shri Shamsher Singh, great grandfather of the minor Satinder Pal Singh whose custody has been claimed by respondent Smt. Jasbir Kaur being her mother and natural guardian and granted as such by the learned Court below.

2. The brief facts of the case are that a petition under Section 6 of the Hindu Minority and Guardianship Act, 1956 read with Sections 7, 8 and 10 of the Guardian and Wards Act, 1890 was instituted by the respondent claiming custody of the minor. She pleaded that the minor Satinder Pal Singh was born on 16.02.2000 out of her wedlock with Jasdev Singh who died on 06.01.2000. She became a widow at a very young age and with the consent of the parents of her late husband Jastev Singh she remarried and out of that wedlock she has two children. The case pleaded is that in order to facilitate this marriage, the custody of the minor was handed over to the grandfather Kishan Singh for a short period for which purpose agreement Ex. RW1A was executed between the parties. It is undisputed before me that Shri Kishan Singh has Singh died and now the custody of the child is with the appellant who is his great grandfather who is more than eighty years of age. The mother claimed custody of the child inter alia on the ground that she is the natural mother; is in a better position to look after the interest of the child, to provide him good education and medical treatment required by the minor. It is also undisputed before me that surgical intervention was required for treating the minor which procedure had carried out at the Indira Gandhi Medical College and Hospital, Shimla on the directions of this Court.

3. The petition was resisted on a number of grounds by the respondent inter alia that Kishan Singh was in a better position to look after and protect tile interest and welfare of the minor; the appellant had made no effort or attempt either to visit him or provide monetary or other assistance or look after his welfare. The learned trial Court on the evidence and on the interpretation of Ex.RW1A held that the mother had not abandoned the custody of the child and that she was the best person to look after his custody. The agreement Ex.RW1A was only transient to enable the appellant to resettle in life.

4. A number of submissions have been made by learned counsel for the parties in support of their respective contentions. Shri N.K. Thakur, learned Senior counsel appearing for the appellant, urges that the order of the learned District Judge on 07.10.2009 records that the child had not inclined to go with the respondent/mother. To similar effect orders passed by this Court on 25.02.2010, 29.09.2010,18.10.2010,27.06.2011 and 23.08.2011 also note that the minor has more attachment with his grand parents and is unwilling to go with his mother. In these circumstances, he urges that the principle of law is that it is the wish of the minor which is to be given due weight and the custody should and ought to remain with the appellant. Learned Senior counsel places reliance on the judgment of the Supreme Court in Sheila B. Das v. P.R. Sugasree, 2006(1) Apex Court Judgments 591 (S.C.), 2006(3) SCC 62, on the facts in that case, the Court held:

“29. Having regard to the complexities of the situation in which we have been called upon to balance the emotional confrontation of the parents of the minor child and the welfare of the minor, we have given anxious thought to what would be in the best interest of the minor. We have ourselves spoken to the minor girl, without either of the parents being present, in order to ascertain her preference in the matter. The child who is a little more than 12 years of age is highly intelligent, having consistently done extremely well in her studies in school, and we were convinced that despite the tussle between her parents, she would be in a position to make an intelligent choice with regard to her custody. From our discussion with the minor, we