1. In the present case Shri P. N. Datt has filed a caveat on behalf of the respondent. On 20th November, 1978, after hearing the case for sometime at the admission stage I suggested both the parties to make full arguments of the main appeal. Both the learned counsel agreed to argue the case in full. Thus the case was heard at length on 20th and 21st Nov., 1978.
2. This is an appeal under Section 47 of the Guardians and Wards Act, 1890, (hereinafter referred to as 'the Act, 1890), against the order of the learned District Judge, Jaipur City, dated 30th March, 1978, whereby an application filed by the respondent under Section 10 of the Act, 1890, has been allowed declaring him as guardian of the person of minor girl Mona till she attains majority.
3. Brief facts of the case are that the parties were married on 19th January, 1971. The appellant gave birth to a girl on 26th January, 1972. The relations between the parties soon after the marriage became strained. The appellant Snehlata who is doctor by profession and is at present living in United Kingdom for further studies left her husband's house and started living with her parents when the child was only five months old. When the respondent and his mother refused to send the newly born child, the appellant took the help of the court and moved an application in this regard in the court of Additional District Magistrate, Jaipur, on 19th June, 1972. The respondent handed over the custody of the child to the appellant before the court on 22nd June, 1972 and since then the child has been continuously living with her mother, the appellant, and in her absence with the appellant's parent. In November 1974, the appellant obtained study leave from the Government and proceeded to England for M. R. C. F. course and since then for the most part she is living in England and is still there for study on sanctioned leave. During the course of arguments it was informed that the appellant shall complete her studies in November, 1979. During the absence of the appellant she has left the child to the care of her father Shri Kiran Babu at Jaipur. It is not disputed that the girl Mona is at present receiving education, in M. G. D. School, which is one of the best institutions of the city and stood first in her class. The girl was also called by the learned District Judge and on questions being put to her on 3rd November, 1977, the following observations were recorded by the Court:
‘‘बच्चे को बुला कर पूछा गया तो उसने अपना नाम मोना बताया । वह टाईनी टाटस स्कूल में पढतीहै । उसने स्नेहलता को सिस्टर बताया व श्रीमती उमा माथुर जो स्नेहलता की मां है, जिनकी गोद में बच्ची आई थी, को कहा कि यह मेरी मम्मी है । मै इनके पास रहूँगी । साचल के पूछने पर कि मै कौन हूँ कहा कि मैं नहीं जानती ।’’
4. The appellant came to India in March, 1976, for a short visit and the respondent succeeded in obtaining a decree of divorce from the court of District Judge, Jaipur City on March 9, 1978. An application was filed under Section 10 of the Act, 1890, for appointing and declaring the respondent as guardian of the minor Mona. The application was hotly contested by the appellant. The learned District Judge by bis order dated 30th March, 1978, held that it was in the welfare of the minor Mona to remain under the guardianship of the respondent who was her father, appointed and declared the respondent to be the guardian till she attains the majority and further gave a direction that the minor Mona to be returned to the custody of the respondent. This appeal is directed against the above order of the learned District Judge, dated 30th March, 1978.
5. Mr. Bhargava, learned counsel for the appellant has contended that admittedly the minor at present was in the custody of the parents of the appellant Dr. Snehlata and it was incumbent upon the respondent under Section 10(1)(d) to make them as a party to the application under Section 10. No order or direction could at all have been given for the custody of the minor in favour of the respondent without impleading these persons as party. Reliance is placed on the following observations in Jotram v. Taru Ram. ILR (1969) 19 Raj 989:--
"There is another important aspect of the matter, Mst. Amri is bringing up the boy Mahendra. It was necessary for Taru Ram to make her a party in accordance with
Section 10(1)(d) of the Guardians and Wards Act. 1890, as she admittedly is having the actual custody of the child. Omission to make her a party is an irregularity vitiating the whole proceedings and order appointing the guardian; vide
Bhai Suchet Singh v. Collector of Amritsar,
1919 Pun LR 223. Without making Mst. Amri a party in the case, no effective order, removing the custody of the child, could have been passed."
On the other hand, it is contended by the learned counsel for the respondent that no such objection was taken, by the appellant before the learned District Judge nor in the grounds of appeal before this Court. Dr. Snehlata had left the child to the care of her parents and thus the custody would be deemed to be that of Dr. Snehlata. It is further contended that Kiran Babu is the lather of Dr. Snehlata and is also her power of attorney holder and as such the custody of the child with Kiran Babu is on behalf of Dr. Snehlata.
6. Jotram's case ILR (1969) 19 Raj 989 (supra) was a case where an application under Section 25 of the Act 1890 was filed by Taru Bam alleging that Jotram had been forcibly keeping both his minor children Mahendra and Kamla for sometime. The non-applicant Jotram contested the application on the ground that after the death of the mother of minor children, Taru Ram contacted a second marriage. The step mother ill-treated the minors. Taru Ram was under the influence of bad characters and was squandering away the ancestral property to the detriment of the minors' interest. He further stated that Taru also agreed that his minor children would be brought up by Mst. Amri who was the real sister of the minors' mother vide Ex. A3 dated March 2, 1967. Hon'ble Justice Mehta held that Taru Ram had contacted a second marriage after the death of the minors mother. The execution of Ex. A2 was held proved. It was further held that Taru Ram himself foresaw trouble for the children after contacting second marriage with Mst. Kalawati. He, therefore, arranged that the children should be brought up by his deceased wife's sister Mst. Amri wife of Jot Ram. Relying on the statement of Ram Pratap PW 6 maternal uncle of the minor it was held that it was for the safety of the minors that they were kept under the custody of Mst. Amri. Thus looking to all the circumstances it was held that in the welfare of the child he should be brought up by his mother's sister and Uncle's wife. While giving this finding the learned Judge also took the view as mentioned above that without making Mst. Amri a party in the case no effective order, removing the custody of the child could have been passed. In the present case the facts are entirely different. As already stated above Dr. Snehlata herself moved an application for giving her the custody of the child when she was about 5 months old. The respondent on filing such application by the appellant handed over the child to the custody of the appellant before the court on 22nd June, 1972. This fact is admitted by the appellant in para No. 3 of the grounds of appeal and it has been further stated that since 22nd June, 1972, the girl has continuously been living with her mother, Dr. Snehlata, the appellant, who has been bearing expenses of her maintenance, education etc. In para 4 of the grounds of appeal it has been further stated that in November, 1974, she proceeded to England for M. R. C. P. course and she has left the child with her parents Shri Kiran Babu, his wife and other family members at Jaipur. Though Shri Kiran Babu is contesting the case on behalf of her daughter Dr. Snehlata as an attorney but neither he nor Dr. Snehlata ever took the objection before the learned District Judge or in the grounds of appeal in this court, that Kiran Babu and Ms wife being in actual custody of the minor, should have been impleaded as a party under Section 10(1)(d) of the aforesaid Act. The custody of the minor was given to Dr. Snehlata herself on 22nd June, 1972 in the Court. Dr. Snehlata has nowhere taken the stand that she has ever lost the custody of the minor. On the contrary, her stand is that she had left the child to the care of her parents on account of her temporary absence from India to complete her studies in England. The custody of the minor with the parents of Dr. Snehlata under these circumstances will be deemed to be the custody of Dr. Snehlata herself. The entire case has been fought on the assumption that Dr. Snehlata appellant has a better claim and the welfare of the minor would be if she is kept in the custody of Dr. Snehlata the appellant. The parents of Dr. Snehlata nowhere come in the picture claiming any right in themselves to keep the custody of minor. In any case this objection has neither been raised before the learned District Judge nor in the grounds of appeal before this Court and as such objection cannot be permitted to be raised by the appellant during the course of arguments. In Jot Ram's case (supra) applicant himself had agreed that his minor children would be brought up by Mst Amri who was the real sister of the minor's mother vide Ex. A/2. Thus Mst. Amri was the person who was in rightful custody of the minor children and the petition was filed against Jot Ram, the husband of Mst. Amri. In these circumstances if Jotram had taken the objection that it was necessary for Taruram to make Mst. Amri a party in accordance with Section 10(1)(d), it could be held that no effective order removing the custody of the child could have been passed without making Mst. Amri a party in the case. Thus the above case is entirely distinguishable and no help can be sought by the appellant in this case.
7. Mr. Bhargava then contended that under Section 13 of the Hindu Minority and Guardianship Act 1956, (hereinafter referred to 'as the Act, 1956') in the appointment or declaration of any person as guardian of a Hindu minor by a court the welfare of the minor shall be the paramount consideration. No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to the guardianship in marriage among Hindus if the court is of the opinion that his or her guardianship will not be for the welfare of the minor. He has further drawn my attention to Section 17 of the Act 1890 which reads as under:
"Section 17.--- (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference the Court may consider that preference, XXXXXX X (5) The Court shall not appoint or declare any person to be a guardian against his will."
It is, therefore, contended that although under Section 6 of the Act, 1956, the only guardian of a Hindu minor, in respect of the minor's person in the case of a boy or an unmarried girl will be the father and after him the mother, provided that the custody of a minor, who has not completed the age of 5 years shall ordinarily be with the mother, yet the paramount consideration should be the welfare of the minor as contained in Section 13 of the Act, 1956, According to the learned counsel the conduct of the respondent in not having met the minor since 1972 and having not cared to take any interest in her for such a long period is a factor which clearly shows that the respondent bad no love or affection towards the minor. Learned counsel placed strong reliance on the contents of letters Ex. A5 in which the respondent had written to the appellant as under:
‘मुझे मालूम नहीं था कि तुम इस हद तक नीचे गिर सकती हो । और मुझे ब्लैकमेल कर सकती हो । आज तक मैं धोखे में रहा । अपनी फेमली लाइफ बनाने में तुमहारा क्या कन्ट्रीब्युशन रहा । अब मै कभी लेटर नहीं लिखुँगा । मेरी तरफ से तु और तुम्हारी बेटी से कोई रिश्ता नहीं है । जाओ उन लोगों के पास जो तुम्हें एम डी और पी एच डी करा देंगे । अब मैं तुमसे नफरत करता हूँ । आज के बाद अपनी बदनाम सूरत मुझे मत दिखाना ।’ On the basis of the contents of the above letter it is strenuously contended that as the respondent had clearly written"
‘‘मेरी तरफ से तुम और तुम्हारी बेटी से कोई रिश्ता नहीं है ।’’ clearly shows that he had a scant regard or affection for the appellant as well as her daughter Mona. Not only that the language used in the above letter to the effect"
अब मैं तूम से नफरत करता हूँ आज के बाद अपनी बदनाम सूरत मुझे मत दिखाना A clearly shows the mind of the respondent that he had developed a hatred with the appellant and also with her daughter. It is further contended that from the contents of another letter Ex. A4 dated 21st August, 1972, it becomes quite clear that the respondent was developing intimacy with another girl Jyoti with whom he intended to many. This is further strengthened by the fact according to the learned counsel, that the respondent succeeded in obtaining a decree of divorce in March, 1978. It is next contended that the welfare of the minor will be in keeping her in the custody of the mother as she failed to recognise the respondent when she was called by the learned District Judge. There was no assertion in the petition nor in evidence led by the respondent to show that the child had not been treated or looked after properly by the appellant or her parents. The appellant had deposited a sum of Rs. 3,000/- in the name of her younger sister Kukee in the State Co-operative Bank so that she could operate the account to meet the personal requirements of the child. Further the appellant was sending every month $ 20 which are being deposited in the name of the child in her account. This amount after deducting the expenditure has now accumulated to the tune of Rs. 5,000/-. As regards the education, the child is getting education in a best school of Jaipur City and that the child cannot get such education and affection in the family of the respondent. It is alleged that mother of the respondent is indulged in the habit of drinking and has ill temparament. Thus according to the learned counsel all the above factors when taken into consideration outweigh the claim of the respondent on the basis that he is a natural guardian of the minor. Reliance is placed on Jijabai Vithalrao Gajre v. Pathankhan, AIR 1971 SC 315; Lalta Prasad v. Ganga Sahai, AIR 1973 Raj 93; Saraswatibai Shripad v. Shripad Vasanji, AIR 1941 Bom 103; Rosy Jacob v. Jacob A. Chakramakkal., AIR 1973 SC 2090; Gurdeo Singh v. Mst. Daulat Kaur, AIR 1961 Raj 30; Muthuswami Chettiar v. Chinna Muthuswami Moopanar, AIR 1935 Mad 195; Ponniah Asari v. Suppiah Asari, AIR 1935 Mad 363; Gangarapu Chinna Sambayya v. Polepalli Rudrappa, AIR 1935 Mad 568; Surat Ram v. Mt. Nardu, AIR 1953 Him Pra 50; Smt Mohini v. Virender Kumar., AIR 1977 SC 1359 and Mt. Sudhia v. Makka; 54 Ind Gas 418; (AIR 1919 All 49 (2)). It is contended on the basis of the above authorities that the welfare of the minor lies in allowing her to remain in the custody of her mother and her maternal grand parents and that it would be too harsh to give a direction for handing over the child to the custody of the father whom she does not recognise and has developed no feeling of affection towards her father.
8. Learned counsel for the respondent has contended that according to Section 6 of the Act, 1956, the respondent being the father of the minor is her nautral guardian in respect of the minor's person as well as in respect of minor's property. The only restriction is that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. He has drawn my attention to Section 19(b) of the Act, 1890 and has contended that no other person shall be appointed or declared a guardian of the person of the minor whose father is living and is not, in the opinion of the court, unfit to be guardian of the person of the minor. The respondent is an assistant engineer. There is neither any allegation nor any evidence to show that the respondent is unfit to be appointed or declared as a guardian of the minor. The appellant had moved an application for handing over the custody of the minor when she was only 5 months old and the respondent was, therefore, compelled to handover the girl to the appellant. As there was a prohibition under Section 6 of the Act, 1956, for taking the custody of the minor girl up to the age of five years, by the respondent, there was no ill will or any other mala fide intention in moving this petition in 1976. It is further contended that the respondent has nominated the minor Mona as a successor in various insurance policies. The respondent made several attempts to meet Mona during all this period but the attempt was thwarted by the parents of the appellant and as such the charge that he did not take any interest or care to meet Mona during all this period was totally baseless. The appellant has tailed to prove that the respondent's mother was addicted to liquor. The parties are Kayasth and it was customary in their society to take drinks. The only evidence in this regard was that the mother of the respondent wanted drinks to be served when Mona was born. This cannot, according to the learned counsel, in any way, lead to the inference that the mother of the respondent was indulged in the habit of drinking. Regarding the use of the language in Ex. A5 the explanation is that it was merely an expression of anger towards the appellant as the marital relations between the parties had become strained and the appellant had deserted the respondent. There was no girl of the name of Jyoti as mentioned in Ex. A4 and the name was mentioned merely to threaten the appellant, Reliance is placed on Mrs. Annie Besant v. G. Narayaniah, AIR 1914 PC 41; Sukhdeo Rai v. Ram Chander Rai, AIR 1924 All 622; Fakhr-ud-din Khan v. Mt. Biro, AIR 1928 Lah 393, Abdul Aziz Khan v. Nanhe Khan, AIR 1927 All 458; Atchayya v. Kosaraju Narhari, AIR 1929 Mad 81; Mt. Haliman Khatoon v. Mt. Ahmadi Begum, AIR 1949 All 627; Gurdeo Singh v. Mst. Daulat Kaur, AIR 1961 Raj 30; Hari Chand v. Ghulam Rasul, AIR 1932 Lah 385 and Kamalamma v. Laxminarayana Rao, AIR 1971 Mys 211.
9. In the light of the above authorities, I may now examine the facts of the present case. The net result of the above authorities is that in the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. However, as provided in Section 17 of the Act, 1890 in appointing and declaring a guardian the court shall be guided by what, consistently with the law to which the minor is subject, appears in the interest and to be for the welfare of the minor. In considering what will be for the welfare of the minor, the court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor and if the minor is old enough to form an intelligent preference, the court may consider that preference. Section 19(b) however, makes it clear that it shall not authorise the court to appoint or declare a guardian of the person of a minor whose father is living and is not, in the opinion of the court, unfit to be guardian of the person of the minor. There cannot be any dispute that the respondent being the father of the minor Mona is her natural guardian in respect of her person as well as in respect of her property with the condition that the custody of a minor, who has not completed the age of 5 years shall ordinarily be with the mother.
10. In the present case the respondent is an Assistant Engineer. Admittedly he has not married so far and there is no charge or allegation that he has any immoral habits. As regards the criticism levelled by the learned counsel for the appellant about the contents of letter Ex. A5 dated 23rd September, 1972, I am in agreement with the observations of the learned District Judge that it was written in a fit of anger. If we consider the events happening prior to September, 1972, when this letter was written by the respondent, he alone cannot be made responsible for using such thing in the letter. The parties were married in January, 1971 and by the time Mona was born in January, 1972 the marital tie had been completely broken down. It is also clear that after the birth of Mona the parties never lived together. According to the appellant the reason for separation is the same oft repeated story in the Hindu society, which the appellant has failed to substantiate in this case. This reason has been assigned by the appellant in para 2 of the memo of appeal which 1 reproduce in her own words:
"The relation between the appellant and the respondent became strained soon after the marriage mainly an account of the hot temperament and vicious habits of the mother of the respondent who never treated well Dr. Snehlata. Dr. Snehlata consequently had to Jive separately from her husband from May, 1972 and at this time the child was only five months old."
There is no cogent evidence on the record to show that it had become impossible for the appellant to live with the respondent. It is further admitted by the appellant that when the respondent and his mother refused to send the newly born child, the appellant was compelled to take recourse to law courts and moved an application in the court of Additional District Magistrate, Jaipur on 19th June, 1972. Both the parties have failed to produce any order of that court in this regard or any copies of the proceedings in that court but it is admitted by the appellant in para 3 of the memo of appeal that on filing such application by the appellant, the respondent banded over the child to the appellant before the court on 22nd June, 1972. Under these circumstances if some harsh language was used by the respondent in September, 1972, soon after Mona was taken away from his custody, it does not lie in the mouth of the appellant to put a blame on the respondent that the respondent did not care to meet or look after Mona for all this long period and has developed hatred towards the appellant and his daughter. There is force in the contention of the learned counsel for the respondent that till Mona attains the age of 5 years, it was not possible for the respondent to have moved for the custody of Mona as contained in Section 6 of the Act, 1956. There is also no reason to disbelieve the statement of the respondent in this regard that an attempt made by the respondent to meet Mona was thwarted by the parents of the appellant. As regards the contents of Ex, A4 1 agree with the conclusion of the learned District Judge that the name of any girl Jyoti mentioned in this letter was merely imaginary and was mentioned to give some psychological treatment to the appellant. Till 1978 when this appeal was being heard, the respondent has not married any other girl. It is also proved on record that respondent's other brothers and their wives along with their mother were living in the same house. Thus it cannot be said that there were no family members in the family of the respondent. There is no doubt that minor Mona is getting the best education and is being properly brought up in the custody of her mother and her parents. But there is no reason to hold that she will not get the same treatment and care in case she lives with her father. It has come in evidence that the respondent is getting a salary of about Rs. 750/- per month and Rs. 75000/- was his bank balance. Some Insurance policies have been nominated in favour of minor Mona. In these circumstances it cannot be doubted that the respondent will also continue the studies of Mona in M. G. B. School. Thus there is no ground or justification for holding that the respondent is in any manner unfit to be appointed or declared as a guardian of minor Mona and to keep her in his custody, he could not be deprived of the custody of his only daughter. There is no doubt that Mona has not attained the age in which her wishes might have any serious consideration. It is but natural for her not to recognise her father when she was removed from the custody at her father at the age of only 5 months. The sentimental argument made by the learned counsel for the appellant in this regard that it would be too harsh to remove the minor from the custody of her mother and her maternal grand parents and to place in the company of totally strangers, do not appeal to the conscience of the court as the appellant herself is responsible for creating such situation. Thus looking to the entire facts and circumstances of the case I fully agree with the view taken by the learned District Judge and see no force in this appeal.
11. In the result this appeal fails and is dismissed with no order as to costs.