Raj Kumar Mahant v. Smt. Indra Kumari W/O Raj Kumar Mahant

This is an appeal under section 47 of the Guardians and Wards Act, 1890, from an order of the First Civil Judge, Class I, Jabalpur, dismissing the appellant's application under section 6 of the Hindu Minority and Guardianship Act, 1956, read with section 25 of the Guardians and Wards Act.

2. Rajkumar Mahant (appellant) was married to Smt. Indra Kumari (respondent) in the year 1951. After four or five years, she went away from the matrimonial home and lived with her parents. However, in the year 1958, she returned to her husband and on August 9, 1959, she gave birth to twins a son and a daughter, by name Ravi Kumar and Shashibala respectively. In the year 1960, she again went away from the matrimonial home, along with the children, and since then she has been living with her father. On Febru­ary 8, 1966, Rajkumar made an application under section 6 of the Hindu Minority and Guardianship Act, read with section 25 of the Guardians and Wards Act, claiming custody of Ravikumar and Shashibala, inter alia alleging that he is the natural guardian of the children; that Smt. Indra Kumari desert­ed him; and that he was not permitted to meet the children. The application was resisted by the respondent, inter alia contending that the appellant was cruel to her and also to the children; that he neglected them both; that ii was he who deserted her that he did not pay even the maintenance which was awarded under section 488, Criminal Procedure Code; and that by his own misdeeds and indifferent conduct, the appellant had lost all his rights of guar­dianship of the persons of the children.

3. The learned trial Judge held that the respondent did not remove the children; that the appellant neglected them; and that having regard to the welfare of the children, they should continue under the care of their mother.

4 The main contention for the appellant is that under section 6 of the Hindu Minority and Guardianship Act, 1956, the appellant, as father of the minor children, is their natural guardian and he cannot be deprived of his statutory right to have the custody of the two children. But the law is clearly this: (1) The provisions of the Hindu Minority and Guardianship Act, 1956, mainly intend to cry in a statutory form who are the persons entitled to act as natural and testamentary guardians of a Hindu minor and also to impose certain restrictions on their powers. The provisions of the Act, in respect of the matters dealt with in them, no doubt override and abrogate all other pro­visions and rules of law either by virtue of any text, or any custom or usage having the force of law. (2) But, as expressly enacted in section 2 of the Act, its provisions are supplementary to and not in derogation of the provisions con­tained in Guardians and Wards Act, 1890. (3) The 1956 Act does not speci­fically lay down the powers of the Court to appoint or declare guardians. Therefore, section 7 and 17 of the Guardians and Wards Act apply to a case such as the present one. Section 7 deals with the powers of the Court to appoint guardians. Section 17 enumerates the matters which the Court must consider in the matter of appointment of guardians. It is emphasised in both these sections that the welfare of the minor must be the paramount consideration in appointment or declaration of any person as guardian. (4) Section 13 of the 1956 Act removes all doubt when it lays down that notwithstanding anything contained in the provisions of the Act, no person shall be entitled to the guar­dianship if the Court is of opinion that his or her guardianship will not be for the welfare of the miner. This section merely reiterates the statutory rule which is the key stone of the whole law on guardianship. (5) The cardinal principle is (hat minors cannot take care of themselves so that the State as Las powers to do all acts and things necessary for their protection. It is, therefore, the primary duty of the Court to be satisfied what would be for the welfare of the minor and to make an order appointing or declaring a guardian accordingly. (6) It is settled law that the word ''welfare" must be understood in its widest sense so as to embrace the material and physical well-being; the education and upbringing; the happiness and moral welfare. The Court must consider every circumstance bearing upon these considerations.

5. Applying these tests, the following considerations are important:- (1) A partition suit instituted on behalf of the children is pending against the appellant. Learned counsel asked my attention to the appellant's deposition where he states that whatever he has, belongs to the children. But this state­ment does not appear to be truthful, inasmuch as he is resisting the children's suit as admitted by him at the hearing of this appeal. (2) The children have been living with their mother from 1960-now 10 years. During these ten years, the appellant has not cared for them at all. It is a different matter that there was dispute and litigation between the appellant and his wife, but he had no quarrel with the children. Even he does not say that he ever sent them clothes or books to read or even sweets on their birthday. This is not the atti­tude of an affectionate father. If he did not care for all these ten years, his anxiety to get back the children obviously has some ulterior motive; may be, to make his wife unhappy. The appellant had made an application under section 10 of the Hindu Marriage Act for judicial separation. He did not suc­ceed in the trial Court but in this Court his appeal was allowed and he got a decree for judicial separation in the year 1969. (3) It is a remarkable circum­stance against the appellant that he did not pay regularly even the mainten­ance which was awarded for the children in proceedings under section 488, Criminal Procedure Code. It is common ground that Rs.100 per month for the respondent and Rs.50 per month for the children were awarded. He admitted that he paid only a small portion of the amount payable by him and that he was in arrears. Learned counsel end devoured to argue before me that whatever was paid could have been appropriated for the use of the children but no such appropriation was made, when he made the pay­ment. The payments must, therefore, be taken to have been made for both the wife and the children. Learned counsel for the respondent pointed out that although the appellant had deposited another sum of Rs.4,000 he creat­ed every kind of obstacle so that up till now that amount could not be withdrawn from the Court. Thus, the appellant is in heavy arrears. (4) The children have been brought up by their mother and maternal grandfather. This shows that the appellant had been neglecting them and is hard-hearted so far as his relations with the children are concerned. There is nothing to show that he made any sincere attempt to meet the children at any time during these

10 years. Even in this petition he states that the children even do not know that the appellant is their father. (5) The children-the girl and the boy-are reading in Johnson school in classes Vlth and Vth respectively. Thus, they are receiving education in a school of good reputation. It is emphatically argued for the appellant that if the children are placed in his custody, they will receive much better education and the appellant would be prepared to spend much more on their education. I asked him whether he was prepared 10 send both the children to the Scindia Kanya Vidyalaya and the Scindia School, Gwalior. In the heat of the moment, the appellant agreed. The respondent also agreed. Both the schools are said to be the best public schools. But within a few mo­ments thereafter, the appellant said that he would not be able to spend more than Rs.1,200 or Rs.1,500 a year on the education of both the children. In order to test the bona fide of the offer, he was asked to suggest the school in which he would put the children. He suggested the name of the Christ Church School which undoubtedly is a good school. Johnson School is also good. The appellant's offer is obviously a mere pretext to get the custody of the children because if he were to put both the children in a school and its boarding house, the expenses would be much more than he is prepared to spend. (6) Both the children having lived all these 11 years with their mother have naturally greatest attachment to her and they are getting the best affection. No one can be as affectionate to the children as their own mother. It is further clear from the facts and circumstance that their maternal grandfather is also doing as best as he can for them. (7) The girl is now about 11 years of age. She is about to reach the age of adolescence and puberty and she would naturally need the care of her mother. (8) In the appellant's house, he has step-mother, his maternal uncle and his maternal aunt. Some evidence was produced by the respondent to the effect that his younger brother died an unnatural death and that his own mother also died an unnatural death. His sister also com­mitted suicide, (9) There is evidence of Smt. Indira Sharma (N. A. W. 1) who had been seeing the children. She testified to the fact that the children are kept well by the respondent. (10) Both the children were produced by the respondent at the hearing of this appeal. They looked cheerful and healthy, though slim.

6. Having regard to all the above circumstances, it must be said that the welfare of the children is in their continuing in the care and custody of their mother.

7. Learned counsel for the appellant relied on Geeta v. Ratan Dhuraji 1966 M PL J Note 157=A I R 1966 M. P.221, on the question of removal of the children. The second case relied on is Sheo-kumar v. Shiv Rani Bai 1965 MPL J953=A I R 1966M. P. 189, but there the dispute was between the father and a stranger. The next case relied on is B. N. Ganguly v, C, H, Sarkar 1961 M P L J 208-A I R 1961 M. P. 173. There also, the dispute was between the parents and the allegedly adopted parents. These cases are not in point. The cases reported in Sukhdeo v. Ramchander A I R 1924 All. 662, and Atchaya v. Kosaraju Narahari AIR 1929 Mad. 81, relied on for the appellant, are also distin­guishable.

8. The greatest point urged for the appellant is that he is well-to-do and that he would be able to spend much more than the respondent is able to do, on the education of the children. If this is not really an argument merely for its sake and as a pretext for getting the custody of the children, but the appel­lant sincerely wants that the children should have better education, it is open to him to send substantial amount regularly to the respondent in cash, or, if he feels any risk that the cash may be used by the respondent, he can send good books, exercise books and stationery and clothes and other necessities of life, in kind, for the children. In Radhakrishnan v. Sonibai Civil Misc. Appeal No. 8 of 1958, decided on the 10th February 1959=(1959) J L J S. N. 38, it was held that although facts differ from case to case, the predominant consideration which out­weighs all others is the welfare of the minor. In that case also the father neglected the son for w 1 -right six years and the machinery of the law had to be moved for grant of maintenance against him. The plea that the father and the uncle of the boy were anxious to provide for suitable education to the child sounded very philanthropic and generous If they were sincere in their bene­volence and if they were aware as regards the interest of the minor, there was nothing to prevent them from giving to the mother a handsome monthly allow­ance for the boy's education. I say the same thing here.

9. The appeal is dismissed. The appellant shall pay to the respondent Rs.100 as costs in this Court.

Appeal dismissed.