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Balbir Kaur v. Jit Kaur And Others
Judgment Summary — Custody dispute concerning minor Amrik Singh alias Biiti
Factual and Procedural Background
The dispute concerns custody of the minor Amrik Singh alias Biiti. The appellant is Balbir Kaur (the mother). Her husband, Gurdev Singh, is deceased. Respondent No.1 is Jit Kaur (the paternal grandmother) and Respondent No.2 is Kulwant Singh (the paternal uncle). Respondent No.3 is the minor.
The appellant married Gurdev Singh in 1991 and the minor was born on 5.1.1992. The couple had two children, but disputes arose and the appellant left the matrimonial house, returning to her parental home with a daughter while the minor remained at the husband's house. Subsequently, Gurdev Singh committed suicide; respondents assert the suicide was caused by quarrels involving the appellant and refer to a suicide note and a pending case under Section 306/34 of the Indian Penal Code against the appellant and her parents.
The appellant filed a petition seeking declaration that she is the natural guardian of the minor and for custody of his person, property and custody. After evidence was led, the trial Court dismissed the petition. The appellant appealed; this opinion is the appellate decision. The appellate judge also called the minor into the Chamber, and the minor expressed that he did not want to go to the appellant's house.
Legal Issues Presented
- Whether the appellant (the mother) is the natural guardian entitled to custody of the minor and should be awarded custody.
- Which arrangement—custody with the mother or custody with the paternal grandmother/uncle—best serves the welfare of the minor, given the facts presented (including financial circumstances, ages, and family circumstances).
Arguments of the Parties
Appellant's Arguments
- The appellant is the mother and is entitled to custody of the minor and can keep him properly.
- She has reasons for separation from her husband (including alleged physical abuse and demands that she leave unless she brought money, a TV and scooter) and she lived with her parents after separation.
- She is employed (in a chappal factory) and earns Rs. 1,500 per month and is residing with her parents in Jalandhar.
- There was no dispute between the appellant and the minor; the past quarrels were between the appellant and other family members and should not determine custody.
Respondents' Arguments
- Respondents assert that Gurdev Singh committed suicide because of quarrels involving the appellant and that a suicide note exists; a case under Section 306/34 IPC is pending against the appellant and her parents.
- The written statement alleges the appellant habitually quarrelled with her husband and levelled false allegations against respondents No.1 and No.2; it also alleges an earlier suicide attempt by the appellant which she attributed falsely to respondent No.1.
- Respondents contested the appellant's account of events and contended that the husband had shown inability to keep appellant and children at his place of service, which led to quarrels and the husband's suicide (12.11.1996).
- Respondent No.1 stated financial capacity: she receives family pension of Rs. 1,500 per month and respondent No.2 (described in different parts of the record as a Postman and elsewhere as serving in the Army) sends Rs.1,500–2,000 per month for maintenance; respondent No.1 indicated she can produce postal receipts and bank records for pension and money orders.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Keshav Ram Thakur v. Smt. Suchhibai, AIR 1999 Madhya Pradesh 260 | Holds that a child's disinclination to live with the mother because of long separation is temporary; grandparents' love cannot substitute for a mother's love and affection; younger mother with ability to provide is preferable to aged grandparents. | The court relied on this principle to emphasize that long separation-induced disinclination may be temporary and that grandparents' care does not substitute for maternal care; this supported the conclusion that the mother could be preferred as custody-holder here. |
| Poonam Datta v. Krishanlal Datta, 1989 Supp (1) SCC 587 : AIR 1989 SC 401 | Supreme Court directed that a minor reside with his mother while permitting the grandfather limited access (weekend visits) and directed parties to avoid actions adverse to the child's interests. | The court cited this authority as supportive precedent for awarding custody to the mother while recognising the possibility of regulated access, and as authority for prioritising the child's welfare and protection from actions that could affect the child physically or mentally. |
Court's Reasoning and Analysis
The court proceeded by focusing on the child's welfare and suitability of guardianship rather than the antecedent quarrels between the appellant, her husband and in‑laws. The judge explained that prior quarrels and allegations (including those related to the husband's suicide) would not have bearing on the core question of custody because there was no dispute shown between the appellant and the minor.
The court considered the following factual elements and applied the cited legal principles:
- Child's welfare and continuity: The court noted the minor's present feelings on being called into the Chamber (initially expressing he did not want to go to the appellant's house) but still emphasised that a child's temporary disinclination due to separation is not decisive, relying on the cited authority (Keshav Ram Thakur).
- Parental status and relationship: The appellant is the biological mother; the court placed weight on the principle that maternal custody carries significant weight unless reasons exist to deprive the mother.
- Financial capacity and household circumstances: The appellant stated she earns Rs. 1,500 per month working in a chappal factory and lives with her father (a contractor). Respondent No.1 stated she gets a family pension of Rs. 1,500 per month and that respondent No.2 provides Rs. 1,500–2,000 per month, although respondent No.2's continued contribution after his marriage was uncertain and he did not testify. The court observed respondent No.1 is about 60 years old, which the court viewed as a relevant factor in assessing long‑term care capacity.
- Evidence and credibility: The court considered the evidence led by both parties (witnesses for appellant and respondents, postal receipts and a school certificate produced by respondents) and the fact that respondent No.2 did not give evidence in person.
- Potential for separation from siblings and access difficulties: The court was influenced by the prospect that keeping custody with respondents would likely prevent the appellant from meeting the minor due to the pending criminal cases and mutual allegations. The judge noted the risk that the minor would become estranged from his sister if custody remained with respondents.
- Application of precedents: The court relied on the principles in the cited cases (that maternal custody is presumptively preferable and that temporary reluctance of the child due to prior separation is not determinative) to conclude that the mother was the better custodian in the present circumstances.
Balancing these factors, the court concluded that the appellant would be a better guardian for the minor despite the earlier expressed reluctance by the minor; the court emphasised the mother's role, relative ages and capacities of caretakers, and the practical impediments to contact if custody remained with respondents.
Holding and Implications
Holding: The appeal is allowed. The judgment of the trial Court is set aside and the appellant's petition for custody is allowed.
The specific operative order: respondents are directed to hand over custody of the minor to the appellant within two months from the date of the order; failing which the appellant is at liberty to have the order executed.
Implications:
- Direct effect: Custody of the minor is transferred from the paternal grandmother/uncle to the mother (appellant). The trial Court's dismissal of the appellant's petition is reversed.
- Procedural effect: If respondents do not comply within two months, enforcement measures for execution of the order are available to the appellant.
- Broader precedent: The opinion applied established principles favouring maternal custody in appropriate cases and cited prior decisions for guidance; the judgment does not purport to create a novel rule beyond applying those principles to the facts before the Court.
Note: This summary is strictly confined to the facts, reasoning and holdings as stated in the provided opinion and does not add information beyond that text.
S.S Sudhalkar, J.:— The dispute in this case is regarding custody of minor Amrik Singh alias Biiti (hereinafter referred to as the minor). He is son of appellant Balbir Kaur. Gurdev Singh was the husband of the appellant. Respondent No. 1 Jit Kaur is mother of Gurdev Singh and respondent No. 2, Kulwant Singh is brother of Gurdev Singh. Respondent No. 3 is minor himself.
2. The appellant was married to Gurdev Singh in the year 1991. The minor was born on 5.1.1992 In the initial period after the marriage, appellant and Gurdev Singh lived together. Appellant gave birth to two children, the minor and a daughter. However, dispute started between them which ultimately resulted in appellant's leaving her matrimonial house and going to her parental house with her daughter. Minor remained at the husband's house. Subsequently, Gurdev Singh committed suicide and it is the case of the respondents that he committed suicide because of the quarrels of the appellant and he left a suicide note also and a case under Section 306/34 of the Indian Penal Code is pending against her and her parents.
3. Appellant filed a petition for declaration that she is natural guardian of the minor and also his person, property and custody.
4. Evidence was led before the trial Court and it at the conclusion of the trial by the impugned judgment dismissed the petition. This appeal is, therefore, filed by the appellant.
5. I have heard learned counsel for the parties and gone through the record.
6. I have also called the minor in the Chamber. He did not want to go to the house of the appellant.
7. Counsel for the appellant argued that the appellant is the mother and she is entitled to the custody of the minor and that she is able to keep him properly. The reasons for separation of the appellant from her husband given by the appellant are not admitted by the respondents. However, I do not think that they should have any bearing on the merits of this case. However, some allegations may be noted. According to the appellant her husband was working as a Beldar in Ranjit Sagar Dam and lived at Ucha Thara Colony and that he had left the appellant and his children in his native house at Sham Churasi with his mother and brother. In December, 1995, he came to his village and on the instigation of his mother he gave abuses, slaps and fist blows to the appellant and went back to his work saying that she must leave his house and return only if she brought money, colour TV and Scooter from her parents. Three days thereafter, respondents No. 1 and 2 gave slaps, fist blows and gave her push due to which she fell on the ground and sustained injuries. Father of the appellant was called and she and her daughter were sent with him to her parents' house and the respondents retained the minor.
8. In the written statement it is conceded that the appellant always quarrelled with her husband and levelled false allegations against respondents No. 1 and 2. It is also contended that in June, 1996, appellant jumped from the roof for the purpose of committing suicide but she levelled false allegation against respondent No. 1 that she pushed her from the roof. Appellant also levelled false allegations against respondent No. 2 and always insisted to live with her husband at the place of his service but the husband showed his inability to keep the appellant and the children with him and due to this the appellant always took quarrel with her husband and ultimately on 12.11.1996 the husband committed suicide.
9. In this case the contest is, therefore, between the mother of the minor and grand-mother and uncle of the minor. As mentioned earlier, what transpired between the parties prior to the death of her husband will have no bearing on the merits of the case, the reason being that the question to be seen is who should be given the custody of the minor. The appellant is not wanting to stay at the house of the respondents. Therefore, reasons for the quarrel have lost importance. In other words, it may be mentioned that there was no dispute between the appellant and the minor and, therefore, the quarrels which took place earlier between the appellant, her husband and in-laws will not be material.
10. Next question is regarding income of the parties. The appellant in her deposition has stated that she is working in a Chappal factory and is earning Rs. 1500/- per month and is living with her parents at Jalandhar. According to her, respondent No. 1 is 60 years old and is not doing any work. She has further stated that her husband's younger brother (respondent No. 2) is a Postman and he does not spare any money.
11. As against this respondent No. 1 has stated that she is getting family pension amounting to Rs. 1500/- per month and that respondent No. 2 is serving in the Army and is getting Rs. 4000/- per month as salary and respondent No. 2 used to send Rs. 1500/- or Rs. 2000/- for her and minor maintenance. She has also stated that father of the appellant is a labourer and that appellant has seven sisters out of them four are married and the remaining are unmarried. In the cross-examination, she has stated that respondent No. 2 is not married and he is engaged and they are going to perform his marriage in the coming Navratras. She has also stated that she has money order receipts regarding the money sent to her by their son and she can produce them in the Court. She has also stated that authorities sent her pension by money orders in her bank and she denied a suggestion that she is not getting pension of Rs. 1500/- per month. In the cross-examination she has stated that father of the appellant is a contractor of painting works and that 6-7 persons worked under him. She has denied that father of the appellant earned Rs. 5000/- or Rs. 6000/- per month and that his son also earns Rs. 4000/- or Rs. 5000/- per month. She has voluntarily stated that brother of the appellant is a labourer. She has further stated that father and son do the work of painting. She has further stated in his cross-examination that she has, not seen that the appellant does not work of finishing the scaps (straps?) of rubber chappals and earned Rs. 1500/- per month, however, she is staying with her parents.
12. The appellant has examined herself and Tek Chand and Daulat Ram as her witnesses whereas respondents have examined respondent No. 1 and one Satish Kumar as their witness. After the respondents' deposition was over, their advocate tendered into evidence postal receipts Ex. R1 to R3 and the School Certificate from the School where the minor is studying.
13. Counsel for the appellant has relied on some reported judgments. He cited the case of Keshav Ram Thakur v. Smt. Suchhibai, AIR 1999 Madhya Pradesh 260. In that case father of the child had died in an encounter with Naxalites and the child was staying with his mother and paternal grandparents. The mother was forced to live away from her matrimonial home and the child has shown his disinclination to stay with his mother. It was held that this is due to his long separation from his mother and that would be a temporary phase and that grandparents' love cannot be a substitute for mother's love and affection. The mother was found capable of giving him proper education as she had received ex gratia payment and terminal benefits of her husband. The grandparents were aged 73 and 60 years whereas the mother was aged below 30 years. It was held that the mother alone is entitled to custody of her minor son.
14. Counsel for the appellant has also cited the case of Poonam Datta v. Krishanlal Datta, 1989 Supp (1) SCC 587 : AIR 1989 SC 401. In that case the Supreme Court directed that minor child would live with his mother, however, it permitted child's grandfather to take child to his residence during every week-end and further directed the parties to do nothing which would be adverse to interest of child or affect it physically or mentally in any manner.
15. In the present case, keeping in view the facts of this case and the decisions of the Courts as cited above, it will have to be seen as to who will be a better guardian of minor. Though it is mentioned in the petition that the appellant wanted to be a guardian of the property of the minor, it is not shown that the minor is having any property. Therefore, the question of custody of minor has to be decided. The appellant is earning Rs. 1500/- per month. Respondent No. 1 is getting Rs. 1500/- per month as family pension. Respondent No. 2 is earning and according to respondent No. 1 he is sending to her Rs. 1500/- or Rs. 2000/- per month for maintenance. Respondent No. 2 is not married and it is not known whether after his marriage he will be able to spare any amount for the minor. It may be mentioned that respondent No. 2 has not stepped into the witness box.
16. Respondent No. 1 is 60 years of age. Appellant's father is working as a contractor. Though no evidence has been led to corroborate his income, the fact remains that the appellant is staying with her father. Considering all the facts and circumstances of the case, I find that the appellant will be better guardian of the minor. Moreover, she is mother of the minor. There is nothing shown as to why the appellant should be deprived of the custody of the minor. Another thing which weighs with me is that when I questioned the minor he was called in the Chamber. Along with him a minor girl also came in the Chamber but she did not speak anything. The minor told that she is his sister. The quarrels in the family have led to separation of the appellant from her husband (during his life time) and after his death a brother (i.e minor) is separated from his sister. If the present position continues, his own sister will be stranger to him and he will be stranger to his sister. By keeping the custody of the minor with the respondent, there is no likelihood of the appellant meeting with the minor in view of the criminal cases and the allegations against each other. Considering all these aspects, I find, that custody of the minor should be given to the appellant.
17. As a result, this appeal is allowed. The judgment of the trial Court is set aside and the petition of the appellant is allowed. The respondents shall hand over the custody of the minor to the appellant within a period of two months from today failing which she shall be at liberty to get the order executed.
Appeal allowed.
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