Jaswant Kaur v. Chanan Singh — 1961 DIGILAW 47 (GAU)

JUDGMENT:- This is an appeal filed against the order of the Subordinate Judge (II), Manipur, in Civil Miscellaneous Case No.34 of 1959, directing under S.25 of the Guardians and Wards Act, on title application of the respondent that the minor Paramjit Singh will be placed in the custody of his father Chanan Singh, the respondent herein and that the appellant Jaswant Kaur, the mother of the said minor should deliver the child to the father Chanan Singh. 2. Chanan Singh and Jaswant Kaur were married in 1944 and the minor boy Paramjit Singh was born in March, 1952. They belong to Punjab and they are Sikhs by religion. Chanan Singh with his family came over to Imphal some years ago and was staying in the house of his brother-in-law Santah Singh at Maxwell Bazar and Chanan Singh was carrying on business having some public carrier lorries. One Chinglen Singh (D.W.3) was the driver of one of the lorries of Chanan Singh. 3. It is clear from the evidence in the case that Jaswant Kaur did not like that Chanan Singh should reside in the house of Santah Singh. This is said to have led to bitter quarrels between the husband and wife. In April, 1958, Jaswant Kaur with the minor child left the house and went to the house of Chinglen Singh, in a Manipur village about 3 miles away from Maxwell Bazar. It is the case of Jaswant Kaur that she was driven out of the house and so she went to the house of Chinglen Singh. But Chanan Singhs case is that Jaswant Kaur became intimate with his driver Chinglen Singh and so she left to the latters house. The Gurudwara Committee of the Sikhs in Imphal did not like this conduct on the part of Jaswant Kaur and they brought her back from Chinglen Singhs house and she stayed for two weeks at the Gurudwara and after that she was sent to Punjab with her brother. 4. Chanan Singhs story that his wife had got into illicit intimacy with his driver Chinglen Singh and that he dismissed his driver and that it was after this that she ran away to Chinglen Singhs house, was hotly denied by Jaswant Kaur and by Chinglen Singh (D.W.3). 4. Chanan Singhs story that his wife had got into illicit intimacy with his driver Chinglen Singh and that he dismissed his driver and that it was after this that she ran away to Chinglen Singhs house, was hotly denied by Jaswant Kaur and by Chinglen Singh (D.W.3). Again, according to Chanan Singh, Jaswant Kaur later came back with the child to Imphal with him and they were staying in Santah Singhs house. While so, Chanan Singhs mother got ill in Punjab and he had to leave for Punjab leaving Jaswant Kaur and the minor child in Santah Singhs house. Chanan Singh himself fell ill at Punjab and at that time he got a letter from Santah Singh that Jaswant Kaur had left the house with the minor child. He could not immediately return to Imphal on account of his illness. He returned in July, 1959 and made enquiries and came to know that Jaswant kaur was living with the child in the house of Chinglen Singh. He therefore instituted a criminal case against Chinglen Singh and Jaswant Kaur in the Court of S.D.M., I.W. under Ss.363, 497 and 498, I.P.C. During the pendency of that criminal case Chanan Singh filed the present case under S. 25 of the Guardians and Wards Act to get the custody of his son. The learned Subordinate Judge ordered Lao custody of the minor Paramjit Singh, in favour of Chanau Singh by his order dated 10-5-1960. The Criminal Case was, however, dismissed by the Magistrate on 14-5-1960 under S.253 Cr.P.C. and a copy of the said order has been produced in appeal. Jaswant Kaur continues to stay with Chinglen Singh with the minor child even to this day. It was admitted that the minors hair has been cut which is against the custom of the Sikhs. According to Jaswant Kaur, the child had to live with other Manipur Children in the Manipuri village and he was being made fun of by other Manipur children and so the hair was cut. He attends School along with other Manipuri children and not the School which is being run by the Sikh community for Sikh children. 5. Jaswant Kaur has denied that she left the house of her husband during his absence at Punjab. He attends School along with other Manipuri children and not the School which is being run by the Sikh community for Sikh children. 5. Jaswant Kaur has denied that she left the house of her husband during his absence at Punjab. According to her, her husband came earlier from Punjab and she later followed him with the child and on their arrival her husband took her to the house of Chinglen Singh as it was not possible to reside in the house of Santah Singh and left her with the child in Chinglen Singhs house, while her husband continued to stay with Santah Singh and he used to visit her in Chinglen Singhs house. It appears that there was no accommodation to Chinglen Singhs house for her to stay. So for a few days she was made to reside in two other houses in the Manipur village and a room was constructed in Chinglen Singhs house for her to stay and she then moved to Chinglen Singhs house permanently. It was after leaving her with the child in Chinglen Singhs house that her husband left again for Punjab on account of his mothers illness. He returned after 5 or 6 months and then started the criminal case against Chinglen Singh and Jaswant Kaur and later filed this petition for the custody of the minor child. 6. Thus she wanted the Court to believe that she was not living with Chinglen Singh in illicit intimacy, but that she was left in Chinglen Singhs house by her own husband and that therefore S.25 of the Guardians and Wards Act will not apply to the case as the minor did not leave or was not removed from the custody of the father. She admitted that she was asked by the Magistrate in the Criminal Case to go to Punjab along with her minor son and with her husband, but that she refused to do so, because, according to her, she was then sickly. She was then asked whether she was willing to go to the house of the petitioner with the minor child to which also she replied that she was not willing, as, according to her, he has brought many cases against her, meaning thereby the criminal case and this petition under S.25 of the Guardians and Wards Act. 7. She was then asked whether she was willing to go to the house of the petitioner with the minor child to which also she replied that she was not willing, as, according to her, he has brought many cases against her, meaning thereby the criminal case and this petition under S.25 of the Guardians and Wards Act. 7. The learned Subordinate Judge discussed the evidence in the case and was of the opinion that Jaswant Kaur was living with Chinglen in illicit intimacy and that it was not therefore for the welfare of the minor child to be left in the custody of the mother, as she was a woman of doubtful character. This finding of the Subordinate Judge was strongly attacked before me. 8. But before I go into that question, I have to dispose of a question of law raised by the appellant regarding the very maintainability of this petition under S.25 of the Guardians and Wards Act. Now under S.4 of the Guardians and Wards Act, the Court having jurisdiction to entertain applications under the Guardians and Wards Act is the District Court. Section 4A(1) of the Act further provides for the High Court by general or special order to empower any officer exercising Original Civil Jurisdiction subordinate to a District Court or to authorise the Judge of any District Court to empower any such officer subordinate to him, to dispose of any proceedings under the Act transferred to such officer under the said act. Sub-section (2), authorised the District Judge by order in writing to transfer at any stage any proceeding under the Act pending in his Court for disposal to any officer subordinate to him empowered under sub-section (1). But in the present proceedings no orders under S.4A were passed either by this Court or by the District Judge. As far as the Union Territory of Manipur is concerned, we have another provision in section 25 of the Manipur (Courts) Act, 1955, regarding the transfer of proceedings under, (a) Indian Succession Act, 1925, (b) Guardians and Wards Act, 1890 and (c) Provincial Insolvency Act, 1920. The said provision is as follows: "25. As far as the Union Territory of Manipur is concerned, we have another provision in section 25 of the Manipur (Courts) Act, 1955, regarding the transfer of proceedings under, (a) Indian Succession Act, 1925, (b) Guardians and Wards Act, 1890 and (c) Provincial Insolvency Act, 1920. The said provision is as follows: "25. (1) The Judicial Commissioner may, by general or special order, authorise any subordinate Judge or Munsiff to take cognizance of, or any District Judge to transfer to a Subordinate Judge or a Munsiff under his administrative control any proceeding or class of proceedings specified in such order, under: (a) the Indian Succession Act, 1925; or (b) the Guardians and Wards Act, 1890; or (c) the Provincial Insolvency Act, 1920. (2) The District Judge may withdraw any such proceedings taken cognizance of by, or transferred to, a Subordinate Judge, or a Munsiff and may either himself dispose of them or transfer it for disposal to any other competent Court under his administrative control. (3) Proceedings taken cognizance of by, or transferred to, a Subordinate Judge or a Munsiff under this section shall be disposed of by him subject to the rules applicable to like proceedings when disposed of by the District Judge: Provided that an appeal from an order of the Munsiff in any such proceedings shall lie to the District Judge. (4) An appeal from the order of the District Judge on appeal from the order of a Munsiff under this section shall lie to the Court of the Judicial Commissioner if a further appeal from the order of the District Judge is allowed by the law for the time being in force". It will be seen that this provision differs to some extent from the provision contained in section 4A of the Guardians and Wards Act, 1890. My learned predecessor acting under Sec.25 of the Manipur (Courts) Act, passed Order No.9 of 1958 dated 3-5-1958 authorising the District Judge, Manipur, to transfer to a Subordinate Judge under his administrative control all kinds of proceedings under the 3 Acts mentioned above. It was under this authorisation that the District Judge transferred this particular proceeding filed in his Court to be dealt with by the Subordinate Judge. It was under this authorisation that the District Judge transferred this particular proceeding filed in his Court to be dealt with by the Subordinate Judge. What was argued before me was that the provision in section 25 of the Manipur (Courts) Act, 1955 differed in material particulars from the provision in section 4A of the Guardians and Wards Act, that the Guardians and Wards Act was made applicable to Manipur on 14-4-1950 by the Part "C" States Laws Act, that the Judicial Commissioners Court has been declared a High Court Within the meaning of Article 241 of the Constitution by the Judicial Commissioners Courts (Declaration as High Courts) Act, 1950. Thus, section 4A of the Guardians and Wards Act applied to Manipur and the Judicial Commissioner should have either empowered the Subordinate Judge or authorised the District Judge to empower the Subordinate Judge to dispose of the proceedings under the said Act and that section 25 of the . Manipur Courts Act which differed materially from section 4A of the Guardians and Wards Act was thus inconsistent with section 4A and no authorisation under section 25 of the Manipur (Courts) Act was therefore permissible. I am unable to agree with this contention. 9. Section 25 of the Manipur (Courts) Act, 1955 appears to have been incorporated in the Act in the same manner as in the Himachal Pradesh Courts Order, 1948, the Kutch Courts Order, 1948, the Bilashpur Courts Order, 1949 and the Tripura Courts Order, 1950, in all of which there is a similar provision. The above said Orders came into existence before the Indian Constitution came into being and before those territories were declared as part "C" States or Union Territories and before the Judicial Commissioners Courts (Declaration as High Courts) Act was passed. Thus, at that time the Courts in those Territories had to be authorised or empowered to deal with proceedings under the said 3 Acts. That could be done only by giving the necessary authority to the Judicial Commissioner by a provision like section 25 in the Manipur Courts Act. Strictly speaking, it was not necessary in the Manipur (Courts) Act, 1955 to have enacted a provision like Sec.25 in view of the Judicial Commissioners Courts (Declaration as High Courts) Act, 1950 and in view of the fact that the Chief Commissioner of Manipur has been given the powers of a State Government. Strictly speaking, it was not necessary in the Manipur (Courts) Act, 1955 to have enacted a provision like Sec.25 in view of the Judicial Commissioners Courts (Declaration as High Courts) Act, 1950 and in view of the fact that the Chief Commissioner of Manipur has been given the powers of a State Government. It is not known why the said provision was really enacted by Parliament when passing the Manipur (Courts) Act, 1955. Perhaps, it was done through oversight without realising that such a provision was no longer necessary. 10. We are not concerned for the present with the proceedings under the Indian Succession Act or Provincial Insolvency Act, but only with those under the Guardians and Wards Act. A case had come before me under the Provincial Insolvency Act in which the Subordinate Judge had dealt with a proceeding under the said Act by virtue of the same order No.9 of 1958 dated 3-3-1958 by which my learned predecessor authorised the District Judge to transfer proceedings under the three aforesaid Acts in exercise of the powers conferred under section 25 of the Manipur (Courts) Act. Now under section 3 of the Provincial Insolvency Act, 1920, the State Government can invest subordinate Courts with concurrent jurisdiction to dispose of proceedings under the said Act. But the Manipur Administration had not issued any notification under section 3. It was argued that the Judicial Commissioner cannot act under section 25 of the Manipur (Courts) Act to clothe the Subordinate Judge with the jurisdiction. But I repelled that contention on the ground that both the Manipur (Courts) Act and the Provincial Insolvency Act were Central Acts, that the powers granted under both the Acts could be exercised and that there was no inconsistency between the provisions in the two enactments. The said decision Anoubam Gourbapu Sarma v. Anoubam Radharomon Sarma is reported in AIR 1960 Manipur 53 . 11. The same remarks would apply to the present case. The position is that the High Court can empower Courts subordinate to the District Court under. Sec.4A of the Guardians and Wards Act, and this power under section 4A is applicable to all the High Courts including the Judicial Commissioners Court. 11. The same remarks would apply to the present case. The position is that the High Court can empower Courts subordinate to the District Court under. Sec.4A of the Guardians and Wards Act, and this power under section 4A is applicable to all the High Courts including the Judicial Commissioners Court. As far as Manipur is concerned an additional power is given to the Judicial Commissioner under section 25 to give the necessary authority to the Subordinate Courts to deal with matters arising under the 3 enactments. Though the wording under section 4A of the Guardians and Wards Act and section 25 of the Manipur (Courts) Act, no doubt varied to some extent, I am unable to find any inconsistency. We can only say that the Parliament has given to the Judicial Commissioners Court an additional power besides the power contained in section 4A of Guardians and Wards Act. Thus, the Judicial Commissioner can authorise the Subordinate Courts in either of the ways to deal with proceedings under the Guardians and Wards Act. Order No.9 dated 3-3-1958 is therefore quite valid. 12. It was next argued for the appellant that this application under section 25 of the Guardians and Wards Act, will not lie on the ground that this was a case where Chanan Singh had himself taken Jaswant Kaur and the minor to the house of Chinglen Singh and left them to reside in the said house and that therefore it cannot be said either that the minor had left or had been removed from the custody of the guardian. In support of that contention strong reliance was placed on the evidence of D.Ws.1 to 4. D.Ws.1 and 2 were said to be neighbours of Chinglen Singh. D.W.3 was Chinglen Singh himself and D.W.4 was Jaswant Kaur. Their evidence was rejected by the Subordinate Judge. I have myself perused the said evidence. I entirely agree with the Subordinate Judge that their evidence cannot be relied upon. Chanan Singh and Jaswant Kaur and the minor are Sikhs by religion. Jaswant Kaur had once before run away from the house of her husband with the minor child and gone to the house of Chinglen Singh in April, 1958 and she had to be brought back by a Committee of the Gurudwara of the Sikhs and she had to be sent to Punjab with the minor child. Jaswant Kaur had once before run away from the house of her husband with the minor child and gone to the house of Chinglen Singh in April, 1958 and she had to be brought back by a Committee of the Gurudwara of the Sikhs and she had to be sent to Punjab with the minor child. This was admitted by D.Ws.3 and 4. It is not the case of D.Ws.3 and 4 that on that occasion it was Chanan Singh who took Jaswant Kaur and the child to Chinglen Singh. After all, Chinglen Singh was only the driver of a lorry belonging to Chanan Singh and thus a servant of Chanan Singh. It is something unusual to find a wife running away from her husband to the house of her husbands driver. No doubt it was stated that this was caused on account of the quarrel between the husband and wife, because the wife was not willing to stay with her husbands brother-in-law. Still it is strange that the wife should run away to Chinglen Singhs house. It has to be mentioned here that Chinglen Singh had divorced his wife and was living in his house with his father and mother. Chinglen Singh was a young man aged about 30 at the time and Jaswant Kaur herself was a young woman aged 23. It is strange conduct for such a young woman to run away to the house of such a young man unless there was some attraction between them. 13. Again, it is impossible to believe that after having brought her back from the house of Chinglen Singh in April, 1958, Chanan Singh would again take her to the very same Chinglen Singh and leave her there simply because he could not get another house. Thus, this evidence of D.Ws.1 to 4 has to be treated as totally false. It was said by D.W.4 that Chinglen Singh was the friend of Chanan Singh. But according to Chanan Singh, he had dismissed Chinglen Singh on account of the illicit intimacy between the latter and Jaswant Kaur, when he was driver of the lorry. Certainly, this evidence of Chanan Singh has to be accepted. The story that Chinglen Singh was Chanan Singhs friend has to be rejected as it is against all probabilities. But according to Chanan Singh, he had dismissed Chinglen Singh on account of the illicit intimacy between the latter and Jaswant Kaur, when he was driver of the lorry. Certainly, this evidence of Chanan Singh has to be accepted. The story that Chinglen Singh was Chanan Singhs friend has to be rejected as it is against all probabilities. Chanan Singh can never be the friend of his servant to whose house his wife had run away on a previous occasion and had to be brought back. It was stated that there was no space in Chinglen Singhs house for Jaswant Kaur and the child to stay. Again, Chinglen Singh had divorced his wife at that time and was alone in the house. That Chanan Singh under such circumstances would take his wife and child to Chinglen Singhs house and leave her there is something which no sensible man can believe. Having regard to the earlier conduct of Jaswant Kaur, Chanan Singhs evidence that his wife left his brother-in-laws house with the child during Chanan Singhs absence at Punjab has to be accepted. 14. The subsequent conduct of Jaswant Kaur also supports this. If Chanan Singh had left Jaswant Kaur and the child in Chinglens house and they stayed with Chinglen Singh as directed by Chanan Singh, one would expect Jaswant Kaur to come away from the house with the child when her husband requested her to do so on his return from the Punjab. But Jaswant Kaur admitted that she refused to leave the house of Chinglen Singh and she stated in her evidence that she was not willing to go back to her husband. Her story that she was living with Chinglen Singh as brother and sister in this small house has only to be stated to be disbelieved. It was admitted that Chinglen Singh was attending to her wants and had even engaged a tutor for the minor child. It is clear that Jaswant Kaur and the child cannot live at the house of Chinglen Singh on the alleged earning of -/8/- a day which Jaswant Kaur was said to be earning by needle work and embroidery. I entirely agree with the learned Subordinate Judge that the minor child has been removed by Jaswant Kaur from the custody of Chanan Singh and that an application under section 25 of the Guardians and Wards Act would lie. 15. I entirely agree with the learned Subordinate Judge that the minor child has been removed by Jaswant Kaur from the custody of Chanan Singh and that an application under section 25 of the Guardians and Wards Act would lie. 15. Under section 6 of the Hindu Minority and Guardiship Act, 1956 which applies to Sikhs also, the father is the natural guardian of his minor son in respect of person and property, but it is provided that the custody of a minor who had not completed the age of 5 years shall ordinarily be with the mother. In this case the minor is aged about 9 to 10 years and so Chanan Singh is the natural guardian and entitled to the custody of the minor. Under section 25 of the Guardians and Wards Act, the Court has to be satisfied that it will be for the welfare of the ward to return to the custody of the guardian. In fact, when there is a dispute between the father and the mother of a minor, the welfare of the minor should be the sole consideration for the Court to decide the custody as separate from the guardianship. This has been laid down in various decisions beginning from Mrs. Annie Besant v. G. Narayaniah, AIR 1914 PC 41. It was held in that decision that if the father who is the natural guardian of his children, entrusts the custody and education of the children to another thereby giving rise to expectations on the part of the infants which it would be undesirable in their interests to disturb or disappoint, the Court will not interfere to revoke the entrustment. It is the welfare of the minor which is of paramount importance. This has again been laid down in recent decisions like Kumaraswami Mudaliar v. Rajammal, AIR 1957 Mad 563 and Baddi Reddi Bulliraju v. K. Surya Rao, AIR 1959 Andh Pra 670. It was stated in the decision, AIR 1957 Mad 563 that wherever the welfare of the minor, the paramount consideration requires it, the Court can certainly give the custody of the minor to the mother. 16. In this case, the minor was examined in Court by the Subordinate Judge and his answers were recorded and the minor stated in categorical terms that he would like to live with his mother. 16. In this case, the minor was examined in Court by the Subordinate Judge and his answers were recorded and the minor stated in categorical terms that he would like to live with his mother. When he was asked why he cannot live with his father he stated that his father was a drunkard and that his father beat him and his mother. This latter part of the answer has to be treated with some reserve as there was no allegation in the counter statement of Jaswant Kaur that Chanan Singh was a drunkard or that Jaswant Kaur or the minor were ill-treated in any manner by Chanan Singh. It is quite possible that minor was coached to give such an answer. My attention was drawn to the decision Lakshmamma v. Achamma, AIR 1960 Andh Pra 516, in which it was held that the wish of the minor was certainly a relevant consideration. But in that case, it was a girl who had completed 16 years and she was in a position to express an intelligent preference. 17. But the wish of the minor is not the sole factor to be taken into account in adjudging the proper custody of the minor. The paramount and dominant consideration is the welfare and interest of the minor. A boy aged 9 or 10 years cannot be the judge of what is good for his welfare. The boy has been living with the mother throughout and naturally he has more attachment to the mother. Thus, his preference arises only out of the said attachment. Much store cannot be placed on such a wish expressed by the minor. We have also to keep in mind the parentage and the religion of the minor, as pointed out in the Privy Council decision cited above. We have to see whether the custody of the father or the mother will be better to have the minor properly brought up and educated in proper surroundings, keeping in mind his parentage and his religion. It is clear that as he was born of Sikh parents, be has to be brought up like any other Sikh child. It is in evidence that the Sikh community in Imphal have made arrangements for educating their children. There can be no doubt that it will be better for a child belonging to the Sikh community to be brought up in their traditions. It is in evidence that the Sikh community in Imphal have made arrangements for educating their children. There can be no doubt that it will be better for a child belonging to the Sikh community to be brought up in their traditions. Jaswant Kaur in her evidence even denied that her husband Chanan Singh belonged to the Sikh religion. This one piece of evidence is sufficient for the Court to decide that the child cannot be left in her custody. At present this child lives in the midst of the Manipur community whose customs and manners and religion are quite different from those of the Sikh community. According, to the Sikhs, the hair of their children cannot be cut. But the hair of this child has been cut because he lives in the midst of Manipuri children whose hair is cut. Again, he attends a School, where the necessary coaching for children of the Sikh community is not given. However, much we may wish that all these distinctions of caste and community, religion and customs should change in this country, the Court has to take note of the fact that such distinctions still persist in this country and so long as such distinctions are there, the children of the different communities and religions have got to be brought up in the environments suitable to such communities and religions. More than all this, it is not at all desirable that the child should be brought up by the mother who has refused most unjustifiably to join her husband and is openly living with a divorced young person belonging to another community. I may state here that when it was brought out from the evidence of D.W.2 on 20-2-1960 that the wife of Chinglen Singh had been divorced before Jaswant Kaur came to live with Chinglen Singh, the very next witness Chinglen Singh as D.W.3 stated on 27-2-1960 that his wife had returned to his house the previous day. Thus, an attempt was made to camouflage the fact that Chinglen Singh and Jaswant Kaur were living in the same house as man and wife. It is certainly against the interest and welfare of the minor child that he should stay with a mother of that kind. The stigma will be attached to the minor throughout his life and the Court cannot permit it. 18. It is certainly against the interest and welfare of the minor child that he should stay with a mother of that kind. The stigma will be attached to the minor throughout his life and the Court cannot permit it. 18. The Subordinate Judge was therefore fully justified in ordering the custody of the minor to be given to Chanan Singh. The appeal fails and it is accordingly dismissed with the costs of the respondent. Appeal dismissed.