1

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN,

AT JODHPUR

S. B. CIVIL MISC. APPEAL NO. 1652/2007

Murari Lal Sidana & Ano.

Versus

Smt. Anita.

S.B. Civil Misc. Appeal under Section 47 of

the Guardians and Wards Act 1890 against

the judgment and decree dated 20-04-

2007 passed by the Additional District

Judge No. 2, Sri Ganganagar, Camp

Suratgarh

JUDGMENT

Date of Judgment

:: September19^th ,2012

HON’BLE JUSTICE MR. R. S. CHAUHAN

Reportable

Mr. R. K. Singhal for the appellants.

Dr. P. S. Bhati for the respondent.

In this case the tug of war is over the custody of two

children, Nikhil, aged about thirteen and a half years and

Chandini @ Charvi, aged about twelve years. While the

Appellants, the grand-parents, who have brought up the

children almost ever since their birth, claim the right to their

2

custody, the respondent--the mother--claims the right on the

basis of her motherhood. Since the appellant No. 1, the grand-

father has expired during the pendency of this appeal the

contest is now reduced to between the appellant No. 2, the

grand-mother, and the respondent-mother. (However, for the

sake of convenience the word ‘the appellants’ shall be used,

but it shall connote only ‘the appellant No. 2’). The appellants

are aggrieved by the judgment dated 20-04-07 passed by the

Additional District Judge No. 2, Sri Ganganagar, Camp

Suratgarh, where by the learned judge has granted the custody

of the children to the respondent-mother.

Briefly the facts of the case are that on 10-10-1997, the

appellants’ son, Rajesh Kumar married Anita, the respondent,

as per the Hindu rites and customs. Out of the wedlock, Nikhil

was born on 1-5-1999, and Charvi on 6-12-2000. Initially, the

relationship between the husband and the wife was cordial.

However, after Nikhil’s birth, it began to sour. While the

appellants and the respondent have held each other

responsible for the souring of the matrimonial relationship,

the fact remains that on 9-5-2002 the couple parted. The

children were left with the father and the grand-parents, the

appellants. Subsequently, on 8-10-2003, Rajesh Kumar, the

3

father, committed suicide, leaving the kids to the care of the

appellants. According to the appellants, the respondent did

not come to grieve with the family at the loss of her husband

and of their son. Ever since 2002, the children are under the

care of the appellants. Presently, the children are residing with

the grand-mother, the appellant No. 2.

On 18-3-2004, the respondent moved an application for

the custody of the children under Section 25 of the Guardians

and Wards act, 1890 (‘the Act of 1890’, for short) and under

Section 6 of the Hindu Minority and Guardianship Act, 1956

(‘the Act of 1956’, for short). In order to buttress her case, Smt.

Anita examined a number of witnesses and submitted a few

documents. In turn, the appellants also examined a number of

witnesses and submitted a few documents. After going

through the oral and documentary evidence, by judgment and

decree dated 20-04-2007, the learned Judge granted the

custody of the children to the respondent-mother. Hence, this

appeal before this court by the grand-parents.

Mr. R. K. Singhal, the learned counsel for the appellants,

has strenuously raised the following contentions before this

court: firstly, the learned judge has based the decision not on

the evidence produced by the parties, but on basis of

4

presumptions, conjectures and surmises. The learned judge

has presumed that “a mother is always the well-wisher of the

children.” Therefore, notwithstanding the fact that the

respondent had abandoned the children just after they were

born, still he has given the custody to her. Secondly, the

learned judge has not elicited the views of the children

ostensibly on the ground that they are too young. According to

the learned counsel the said ground is no l