JUDGMENT R.K. Mahajan, J.
1. Smt. Sadhana wife of Mr. Santosh Kumar Randev @ Santosh Kumar Panda has filed the above appeal against the order dated 31.5.1994 by the IInd Additional District Judge, Varanasi in Misc. Case No. 35 of 1992, Santosh Kumar Randev v. Smt. Sadhana under Section 25 of the Guardians & Wards Act, 1890, by virtue of which an order was made that the custody of three minor children namely, Abhilasha @ Nanu. Abhijeet @ Mambi and Km. Jasvi be given lo the father as it is in their welfare. The order was passed taking into consideration the dubious relation of Smt. Sadhana with one Sanjiv Misra with whom she is living at Varanasi. Before proceeding straightway to the controversy, the brief facts of the case are to referred.
2. The marriage was solemnized between the parties on 20.2.1981. A daughter namely Km. Abhilasha was born on 10.12.1981. Thereafter a son Abhijeet was born on 29.8.1983. It appears that Smt. Sadhana left the house of her husband and went to the house ofherfatheratBhopalon30.10.1984. It appcars that litigations were ensued and a petition was filed by Santosh Kumar (Suit No. 34 of 1985) against Smt. Sadhana for restitution of conjugal rights. The said petition was decreed ex-parte on 15.11.1985 by the Civil Judge, Varanasi. As a result of the intervention of the older members of the family, she came to the abode of her husband at Varanasi and again gave birth to a daughter, namely, Jasvi on 15.2.1988. In June, 1991, she went to Bhopal again at his father's house. It appears that an application under Section 125 of the Code of Criminal Procedure was filed by Smt. Sadhana against Santosh Kumar on 15.7.1991 and it was dismissed in default on 11.5.1992. A lot of litigation has occurred between the parties and allegations have been exchanged obviously regarding the illicit relation with one Sanjiv Misra. It appears that a report of kidnapping/abduting/under Section 342 I.P.C. (wrongful confinement) was lodged against Sanjeev Misra and Sheo Kumar.
3. Without going into the details of the case, the broad features of the case, of the petitioner are that the custody of the children be given to him, as he, being the natural guardian is entitled for the custody of the children under the Guardians and Wards Act, 1890 read with Hindu Minority and Guardianship Act, 1956. He further submits that since she is not living chaste and good life, the development of the children would suffer. The wife's case is that her mother-in-law Smt. Annapurna Devi willed the entire property to Abhijeet son of Santosh because of ill repute and bad habits of her son on 4.2.1987 and the father of the ward had made an agreement to sell the property to one Shri. Ram Housing Finance and Investment India Limited, Mahmoorganj, Varanasi and he wants to grab the property. He further asserts in the written statement that the parents of Sanjiv Misra and that of Smt.Sadhana are family friends. In fact, they were instrumental in getting them married. At the most, he is rendering occasional help of routine nature in filing petitions etc.
4. The learned Counsel for the appellant submitted that the lower Appellate Court has fallen into error in handing over the custody of the children to the father who was having no income. The welfare of the minor lies with the mother in the facts and circumstances of the case. He further submitted that she can get them properly educated at the best schools of Varanasi. Their interest can be looked by the mother very well. On the other hand, the learned Counsel for the respondent Santosh Kumar Randev, submitted that since Smt. Sadhana is living with Sanjeev Misra and father is a natural guardian, it would have very bad effect on the children's education and development if the custody is left with the mother. These are the short submissions in the light of the backgrounds of the case.
5. Hon'ble Mr. Justice N.L. Ganguly has also recorded the statements of Santosh Kumar Randev @ Santosh Kumar Pandey, Abhijeet, Smt. Sadhana and Km. Abhilasha in the chamber on 12.10.1995. Mr. Santosh Kumar Randev in his statement expressed his unwillingness to live together with Smt. Sadhana as husband-wife. He further stated that his wife simply wants to sell the property. He alsostated hisaveragemonthlyincomeisRs.8000/-permonth which includes the income from agricultural land etc. and other properties. On the other hand, Smt. Sadhana in her statement in this Court stated that the relations between the parties have become very strained and it was not possible for her to stay or permit her minor children to go and stay with him. She described her husband doing nothing and having no source of income of his own except the rent of the shops, rooms which, in fact, belong to the minor children. She further stated that site is a partner in a hotel 'Moon Restaurant', Maharana Pratap Nagar, Bhopal, from where she gets about Rs. 10,000/- and she earns about Rs. 5000/- per month by doing separate garment business which is being done by her from her residential quarter and she is capable of maintaining her minor children.
6. Considering the above statement of the husband and wife, in my view, the marriage between the spouse has become sick and it cannot be now healed. The children in their statement have also not shown preference and they wanted to live with found to be having maturity by the Court on the date of their statement.
7. Now the critical question for decision is whether the mother be given the custody of the children or father. Father is undoubtedly the natural guardian of the children under Section 6 of the Hindu Minority and Guardianship Act, 1956 which is quoted with advantage as under :
"6. Natural Guardians of a Hindu minor : The natural guardians of a Hindu minor, in respect of the minor's person as well in respect of the minor's property (excluding his or her undivided interest in joint family property), are :
(a) in the case of a boy or an unmarried girl the father, and after him, the mother: Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl the mother, and after her, the father;
(c) in the case of a married girl the husband.
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section :
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (Vanprastha) or an ascetic (Yati or Sanyasi).
Explanation : In this section, the expressed 'father' and 'mother' do not include a step-father and a step-mother."
8. The Hindu Minority and Guardianship Act, 1956 was amended and modified. It is supplemented to the Guardians & Wards Act, 1890. The Court has taken preference of the minors under Section 17 of the Guardians & Wards Act, 1890. Section 17 of the said Act is quoted as under :
"17. Matters to be considered by the Court in appointing guardian :- (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, 01 a deceased parent, and 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.
Section 13(2) of the Hindu Minority and Guardianship Act. 1956 has been supplemented by the legislature in such a way that the Court is to appoint the guardian or give the custody of the child where his/her welfare of the minor lies. The paramount consideration is the welfare of the minor. Even if the Court finds that the person, i.e. mother or father or any relative, is not entitled to be appointed as guardian, the Court can appoint any other person.
9. Mr. Sankatha Rai, learned Counsel for the respondent has argued that since Smt. Sadhana, the appellant, has relation with Sanjiv Misra and she has a daughter, she is not entitled for the custody of the child as alleged in paragraph 11 of the objection filed by Smt. Sadhana. The averment made in para 11 of the objection is being reproduced as under :
"11. That the contents of para 11 of the petition under reply, only this much is not denied that Sanjeev Misra by virtue of his position as local guardian of the opposite party and of her minor children allowed them to stay in a portion of premises No.S21/58, Englishia Line, Varanasi City-Rest contents as stated are not correct, hence dismissed."
This shows that she is living in a portion of premises No.S21/58, Englishia Line, Varanasi City and the rest of the other allegations, she has denied.
10. Even for the argument's sake assuming that she is having some relations with Sanjiv Misra, it should not disqualify her to become a guardian and keep the custody of the child for the following reasons :
(i) The children have expressed their preference.
(ii) She being the mother and motherly instinct is of emotional value than fatherly instinct. The children are living with the mother and she is giving education to them. It would not be possible to hand over the " .children against their wishes to the father as they are now grown up beyond 13 years.
(iii) It cannot be ruled out that the father has an intention to grab the property and as such wants to get the custody of children and then dispose of the property. The mother also cannot dispose of the property without the consent of the Court i.e. the District Judge unless the District judge is found that it is essential for the benefit of the minor and in such circumstances if she has taken some social help from Sanjiv Misra, it does not mean that she is virtually living as wife. Once the allegations of chastity are levelled against the wife by the husband and there is complete breakdown of marriage, no reconciliation is possible.
For the aforesaid reasons, in my view, the Court below fell in error in handing over the custody of the children to the father by passing Section 25 of the Act which is unwarranted under the facts and circumstances of the present case and as such I am unable to agree with the reasonings of the Court below.
11. The learned Counsel for the appellant has relied upon a decision of the Supreme Court in the case of Chandrakala Menon & Anr. v. Capt. Vipin Menon & Anr., reported in 1(1983) DMC 135, in which it was observed as under :
".....Minor living with material parents - Parties living separately for over a period of one year - Petition for divorce and mutual consent disposed of - Respondent nutual guardian - Predominant criterion -Welfare of the child - Custody handed over to the petitioner."
It was further observed that the custody of a child had to be decided on the sole and predominant criterion of what would best serve the interest and welfare of the minor. In this case, both the parties were highly educated and liberty was given to the father to have access to the child for developing fatherly affection. The mother was also given liberty to see child when she visited India from America so that she can live with her for some time.
12. The learned Counsel has also relied upon 1 (1995) DMC 142 (DB),Andhra Pradesh High Court Archna Desradhi v. Sivakumar, wherein it was observed as under:
"Guardians and Wards Act, 1890 - Section 25 - Hindu Minority and Guardianship Act/1956 - Section 6 Custody of Minor - Welfare - No other consideration out weigh this requirement-Minor not willing to live with father-Interest of minor better served by keeping him with mother- Father's right to vist - Directions - Nearly tentative - Entitled to be. varied - Whether correct - (Yes)."
13. Mr. Sankatha Rai, learned Counsel for the respondent has relied on a number of rulings on the welfare of the minor. In Sukhdeo Rai v. Ram Chander Rai & Anr. reported in A.I.R. 1924 Allahabad 622, it was laid down that the father cannot be deprived of the society of his child or the control of his child, because he quarrelled with the mother or distrusted the mother's moral character or because of his handing over the child to female relative during infancy, nor because of his immorality. The emphasis has been laid that it is the duty of the Court to see where the welfare of the child lies. The children are grownup; time has passed and there will be no at present here to heel the wound between the husband and wife now. In this view of the matter, I dispose of this appeal with the following directions :
The appeal is allowed keeping in view of the welfare of the minor and the order of the Court below is reversed. The father has right to visit children twice a month after obtaining permission by filing application before the District Judge concerned on the date, time and place fixed by the District Judge. The mother is directed to afford opportunity to allow the children to meet him and this process will continue till they attain majority. It is hoped that frequent meetings make the parents for may cementing relations in the normalisation of relation.