Motilal B. Naik, J.:— This appeal is filed against the dismissal of O.P No. 1186 of 1990 by the Additional Chief Judge, City Civil Court, Hyderabad (Temp) filed under Section 25 of the Guardian and Wards Act for custody of minor children, viz., Master Bharat Kumar and Baby Arti from the respondent-husband.
2. Appellant herein is the wife and the respondent is the husband. It is the case of the appellant that their marriage took place in the year 1985 at Maheshwari Bhavan, Begum Bazar, Hyderabad as per Hindu rites and customs. After the marriage the respondent was not satisfied with the articles and gifts presented by the parents of the appellant and there was a demand from the respondent-husband and his family members for getting more dowry. In the month of October, 1990 the parents of the appellant were at Rajasthan and on the intervening night of 4th and 5th October, 1990 the appellant was beaten mercilessly and was driven out of the house with a pre-planned scheme to drive her from the house after the departure of the respondent to Delhi. It is alleged that the appellant's life became miserable at the house of the respondent. She was also threatened with dire consequences and was driven out of the house of the respondent with four sarees and Rs. 60/- only. The appellant had no other go than to leave the matrimonial house. After being driven out, she desired to go to Tuljapur for staying in the temple peacefully in order to forget the torture and physical assaults. However, she had no money to proceed to Tuljapur and therefore, desired to sell her gold ring at Secunderabad. In that pursuit, she went to one Jawaharmal's shop for selling the gold ring, which is situated in Secunderabad. It is stated that the said Jawaharmal took pity on the appellant and gave shelter to her for nearly ten days. Subsequently he Informed the father of the appellant on 15-10-1990 about the appellant's stay in his residence, over telephone. On receipt of the telephonic message, the father of the appellant seems to have rushed to the house of Jawaharmal and brought the appellant to his house. The father of the appellant suspected foul play on the part of the respondent and his parents, lodged a complaint with the concerned police. However, the respondent seems to have managed with the police and got the case registered as a case of girl missing. The matter was later on enquired by the police and the case was altered and registered under Section 498-A of IPC. It was stated that the two children born from out of the legal wed-lock were in the custody of the respondent-husband since 5-10-1990. It is alleged that they were wrongfully detained as a result of which the appellant's life has also become miserable. She made efforts to seek the custody of the children but could not succeed. It is further alleged that if the children are to remain in the custody of the respondent-husband, their life will be miserable without their mother's services and affection. It is alleged that the respondent being a businessman, has no time to attend to the welfare of the children.
3. To meet these allegations, the respondent-husband has filed a detailed counter before the Court below, inter-alia, contending that the respondent-husband went to Delhi for business purpose only for three or four days from 5-10-1990. The father of the respondent came to the station to see him off. Immediately after the respondent leaving for Delhi, the appellant seems to have left the house of the respondent causing confusion in the family without the permission of anybody. The father of the respondent contacted him on telephone and passed on the message to him. After receiving the message from his father, the respondent rushed back to Hyderabad and made enquiries. A complaint was also lodged with the police in this regard. Ultimately, it was detected that the respondent was stationed in the house of one Mr. Jawaharmai at Secunderabad. It was denied in the counter by the respondent that there was any ill-treatment meted to the appellant, much less any ill-treatment to the children. It is categorically denied that the children were happily placed in the residence of the appellant as the family of the appellant is a large family consisting of four brothers, their wives and old-aged parents.
4. It is stated in the counter that the children had developed special love and affection towards the parents of the respondent and they were treated very well in the family. There was no occasion or reason for the children to feel loneliness or to have grievances of any sort.
5. During the pendency of the O.P No. 1186/90 filed by the appellant herein, an inter-locutory application for interim custody of the children from the respondent, in I.A No. 670 of 1990 was also filed by the appellant herein. The Court below by an order dated 20-3-1991 ordered interim custody of the minor children to the appellant herein as she being the natural mother. As against the said order in I.A No. 670/90, dated 20-3-1991 the respondent carried the matter by way of an appeal in A.A.O No. 440 of 1991 before this Court. A division Bench of this Court on hearing both the parties did not interfere with the order of granting custody of the children to the appellant on the ground that the two children were aged below five years and in terms of Section 6(a) of the Hindu Minority and Guardianship Act (Act No. XXXII of 1956) which postulates that mother being the natural guardian of the minors aged below five years, she is entitled to have their custody. However, the Division Bench made it clear that once the children complete five years, it is open to the respondent to file an appropriate application before the Court seeking their custody. The Division Bench has also directed the lower Court to dispose of the O.P within a period of four months from the date of receipt of the said order. Pursuant to the said direction, the O.P has been disposed of, against which the present appeal is filed.
6. Sri K. Maliikarjuna Rao, learned counsel appearing on behalf of the appellant-wife primarily contends that though as per Section 6(a) of the Hindu Minority and Guardianship Act (hereinafter referred to as “the Act”) the father is entitled for the custody of the minor children who complete the age of five years, yet the interest of the minors is the paramount consideration for the Court while granting custody. It is contended that the lower Court has failed to look into these aspects as to where the paramount interest of the children lie while granting custody. It is also stated that though the respondent-father has sufficient means to maintain the children, having sufficient means alone cannot be the sole ground for granting of custody of the children to the respondent. It is stated that the father has no time to look to the needs of the children as he is busy with his business activities. It is also submitted that being a businessman, the respondent remains out of station for days together and therefore, these children have to be necessarily depend upon other members of his family, viz., brothers of the respondent and his old parents. In this background, it is stated that the interests of the minors cannot be looked after properly, and therefore, the appellant being the natural mother is entitled to have the custody of the children. It is further stated that the mother, for the purpose of these 5 two children, has sacrificed her life and is staying away from her parents by doing tailoring work and earning sufficient money to look to the needs of the minors. It is contended that if the custody of the children is to be entrusted to the respondent, these minors who have been staying with the mother till now, would find it difficult to adjust in the new environment.
7. On the contrary, Sri Murlinarayan Bung, learned counsel for the respondent contended that in terms of Section 6(a) of the Act, the appellant is entitled to have the custody of the children till they attain the age of five years and when once the minors cross the age of five years, the respondent becomes the natural guardian. It is also stated that the children viz., Master Bharat Kumar and Baby Arti are aged 9 and 7 years respectively and when the law itself vest custody with the father after completion of five years by minors, father's custody cannot be denied unless there is sufficient reasons before the Court to hold that the father is unfit to be the custodian of the minor children. The learned counsel for the respondent has justified the order of the Court below by stating that the lower Court has given cogent reasons while rejecting the plea of the appellant and rightly directed the appellant to entrust the custody of the children to the father.
8. The learned counsel for the respondent has also made further efforts to persuade us to the fact that the respondent-father has sufficient means and is capable of providing better livelihood to the minors. It is stressed that not only the material welfare of the children are to be taken care of, but also their moral welfare has to be cared as these two minors are of tender age. It is stated that along with respondent, his four brothers and their wives who form joint family, and his parents also reside in the same house. The two minor children are getting sufficient love and affection not only from their grand-parents but also from their paternal uncles and aunts, besides from the respondent. It is further stated that the appellant who is staying away from her parents has no sufficient income to maintain and bring up the children. The appellant gets a meagre income on her tailoring work and is living in a small rented house just located near Leprosy Home. If these two minors are allowed to stay with her, hygenicaliy, it is not suitable for them to stay with the mother.
9. In support of his contentions, Sri K. Mallikarjuna Rao, learned counsel for the appellant has taken us to the following decisions reported in Rosy Jacob v. Jacob A. Chakramakkal. (1) (1973) 1 SCC 840 : AIR 1973 S.C 2090, Saraswatibai Shripad Vad…(Original ), v. Shripad Vasanji Vad…(Original Petitioner), .* (2) AIR 1941 Bombay p. 103, Muthuswami Chettiar v. K.M. Chinna Muthusami Moopanar (3) AIR 1935 Madras p. 195, Hoshie Shavaksha Dolikuka v. Thrity Hoshie Dolikuka. (4) 1984 Supp SCC 345 : AIR 1984 SC 410 and in Archana Dasaradhi v. V. Shivakumar (5) 1994 (3) ALT 450.
10. Sri Murlinarayan Bung, learned counsel for the respondent, in support of his contentions has taken us to the following decisions reported in Mohammed Jameel Ahmed Ansari v. Ishrath Sajeeda (6) AIR 1983 AP 106, Kamalamma,… v. Laxminarayana Rao,…. (7) AIR 1971 Mysore 211 and in Raj Rani v. Subhash Chander (8) 1 (1982) DMC 123.
11. We have heard both the learned counsel at length and have examined the decisions cited by them. The principle laid down in few of the above decisions has also been discussed by this Court while deciding the question of granting guardianship in Archana Dasaradhi… v. V. Sivakumar…. (5) cited sra, to which decision myself (Motilal B. Naik, J.) is a party. The Division Bench in the said case, while examining the various decisions on the question of granting guardianship of minors with reference to Sections 6 and 13 of the Act, held that the provisions contemplated under Section 6 are subjected to Section 13 of the said Act which specifically lays emphasis that “in the appointment or declaration of any person as a guardian of a Hindu minor by a Court, the welfare of the minor should be the paramount consideration.”
12. In the light of the above principle, it is necessary for us to examine as to who could be the proper person i.e, appellant or the respondent, entitled, in the facts and circumstances of the case, to the custody of the minors where the welfare of the minors could be better served.
13. It is on evidence that the appellant is a lonely lady, eking out her livelihood by doing tailoring work. It is not disputed that she is staying in a rented house which is located near the Leprosy Home. It is also in evidence that the respondent is a member of a joint family having big accommodation consisting about 12 to 15 rooms. The respondent's family could afford to lead a decent life. Besides the respondent, his four brothers, their wives and his parents are also staying in his house. In our view, the joint family is a better place to look after the needs of the minors than that of the appellant herein, who is fighting a lone battle against the respondent for her right to lead a marital life with him. As discussed earlier, the paramount consideration being the welfare of the minors, in our view, the welfare of the minors would better served if they are given in custody to the respondent as he is better placed than the appellant. The law is, very clear in this regard. In terms of Section 6(a) of the Act, the appellant is entitled to have the custody of the minors till they attain the age of five years and once the minors complete the age of five years, the respondent automatically becomes the natural guardian of the minors.
14. The learned counsel for the appellant Sri K. Mallikarjuna Rao submits that during the stay of the children with the appellant pursuant to the direction of the Court below, granting interim custody of the minors to the appellant, the respondent has not evinced any interest to look after the welfare of the minors and has not even sent a single pie to show his love and affection towards them. We are not persuaded to accept this submission. The tussle between the appellant and the respondent is such that they hate to see each other. Probably the respondent felt that since the appellant obtained an order of interim custody of the children, she is bound to look after the welfare of the children. Even in the interim direction, the Court below has directed the appellant herein to send the minors to the respondent on every Sunday mornings between 8.00 AM and 4.00 PM. However, the appellant did not comply with this direction. No evidence is placed before us to show that the appellant really desired the husband to send some money for the welfare of the children. On the contrary, the appellant was adament in not complying with the orders of the Court. Therefore, in the absence of any evidence, we are unable to accept the submission of the learned counsel for the appellant that the respondent has no love and affection towards his children.
15. Sri Mallikarjuna Rao, learned counsel for the appellant made yet another attempt by submitting that the minors could be interviewed by this Court to know their mind as to where they would like to stay. Since the minors are staying with the appellant for the past few years pursuant to the interim orders by the Court, probably the minors would be tutored by the appellant to speak in her favour as the minors are still under her influence. Therefore, we do not think interviewing the minor children, in this background, would reflect the true inner voice of the minors.
16. The evidence on record goes to show that the interests of the minors will be well safeguarded if their custody is retained by the respondent who is their natural father. To deny the respondent of the guardianship of the minors, the Court must necessarily have sufficient reasons to do so. In this case, there is no evidence before us to hold that the respondent is unfit to be the custodian of the minors. On the contrary, the evidence before us shows that the interest of the minors would be well served, if their custody is restored to the respondent being their natural father.
17. As discussed by us, we do not see any reason calling for our interference in the order assailed before us. The C.M.A is accordingly dismissed. No costs.
18. The appellant is the mother of the minors. We cannot deny her to have the company of the minors at least once in 15 days. We are of the view that she could be permitted to have the company of the minors. The respondent, therefore is directed to send the two minor children to the house of the appellant on second and fourth Sundays of every month from 9.00 A.M and allow them to stay with the mother upto 4.00 P.M on those days. This arrangement shall continue as long as the minors desire.
19. The appellant who got the custody of the minor children, pursuant to the interim orders passed by the lower Court, pending disposal of the O.P, shall return the custody of these minors to the respondent within a period of six weeks from today. Keeping in view the ensuing Deepawali Festival, we direct the appellant to send the minors to the residence of the respondent herein on 21-10-1995 after school hours. The respondent shall send back the children to the appellant on 26-10-1995 before school hours.
20. After dictating the order, both the counsel stated before us that the O.P filed by the husband for divorce and also the O.P filed by the wife for restitution of conjugal rights are pending adjudication. We are of the view that this dispute has to be resolved at the earliest. Accordingly, we direct the Family Court, Hyderabad to dispose of these two O.Ps preferably within a period of six months from the date of the receipt of this order.
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