Research › Browse › Judgment

Madhya Pradesh High Court · body

1978 DIGILAW 243 (MP)

Devyanibai v. Vijaykumar

1978-03-21

B.R.DUBE

body1978
Short Note : 1. Briefly stated, the facts giving rise to these appeals are as under: "An application under section 25 of the Guardian and Wards Act, 1890 was filed on 21.2.1974 by Vijaykumar, against his wife Mst. Devyanibai (who was subsequently divorced) for the custody of three minor children - (1) Ku. Rajeshwari, (2) Chandrashekhar and (3) Pravinkumar, who were born out of the wedlock on the dates 13.10.1967, 2.12.1968 and 7.5.1977 respectively. It was alleged that after the marriage Devyanibai for a major time lived at her parent's house No. 8, Pant Vaidya Colony, Indore. On 23.1.1974 Devyanibai in the absence of the petitioner Vijaykumar left the home of the petitioner and took away the minor children with her. It was further alleged that the petitioner had filed a separate application under section 9 of the Hindu Marriage Act on 28.1.1974 for restitution of conjugal rights which was pending. The petitioner-husband, therefore, claimed that he being the natural guardian of the minor children he was entitled to get them in his custody." 2. The lower Court after making enquiry into the matter and keeping in view the welfare of the children came to the conclusion that the boy Chandrashekhar should be returned back to the custody of the natural guardian i.e. Vijaykumar while the other two children Ku. Rajeshwari and Pravinkumar should be allowed to remain in the custody of their mother Devyanibai. Therefore, the orders as regards the custody of the children were passed accordingly. Against the aforesaid orders Devyanibai has preferred Misc. Civil Appeal No. 181 of 1977 in this Court in which she claims the custody of her minor son Chandrashekhar as well. The father Vijaykumar has filed another Misc. Appeal No. 186 of 1977 in which he claims the custody of the other two children Rajeshwari and Pravinkumar as well. 3. It is not disputed that under the Hindu Minority and Guardianship Act, father is the natural guardian of a minor boy or unmarried girl and he can claim for the custody of the child if he or she has completed the age of five years. However, for the custody of the minors the paramount consideration must be their welfare. Therefore, the most material point for consideration in these appeals is whose custody out of the father and mother would be in the interest of the children. However, for the custody of the minors the paramount consideration must be their welfare. Therefore, the most material point for consideration in these appeals is whose custody out of the father and mother would be in the interest of the children. The lower Court has come to a clear finding that the mother Devyanibai has got no financial difficulty in maintaining all the three minor children and that they are quite happy with her. 4. Thus, looking to the facts and circumstances of the case, I am of the view that it would be for the welfare of the children to keep them in the custody of their mother. When the lower Court found it to be desirable to keep the two children in the custody of the mother it would be all the more necessary in the interest of the third child Chandrashekhar that he should also be kept in the custody of the mother. It is a matter of common knowledge that children of like age feel more homely in living together. In case Chandrashekhar is taken out of the custody of his mother he will be deprived of the company of his brother and sister as well. Admittedly there is no child of or about the age of Chandrashekhar at the house of the father Vijaykumar with whom he can keep company. Therefore, in case he is isolated and kept at the house of the father away from the company of his brother and sister he is likely to feel bored and that may affect his physical and mental development. 5. Thus, having considered all the aspects of the case, I am of the view, that the welfare of all the three children would be better served by keeping them in the custody of the mother. The boy Chandrashekhar who was directed by the Court below to be kept in the custody of the father was called by me in the Court and he expressed his desire to remain with his mother. It is true that he is too tender to exercise his discretion in the selection of his guardian. However, even without giving any weight to the desire expressed by him, I am of the view, that he should be allowed to continue along with the other minor children, to remain in the custody of his mother. 6. It is true that he is too tender to exercise his discretion in the selection of his guardian. However, even without giving any weight to the desire expressed by him, I am of the view, that he should be allowed to continue along with the other minor children, to remain in the custody of his mother. 6. It may, however, be noted that orders as to the custody of a child under section 25 of the Guardian and Wards Act being always of a temporary nature, the father of the minor children in the instant case is at liberty to apply to the Court at any time for a change of the minor's custody in case on account of certain changed circumstances it is apprehended that it would be no more for the welfare of the children to allow them to remain in the custody of the mother. AIR 1941 Bom. 103, AIR 1973 SC 2090 and 1972 JLJ 1045 , relied on. AIR 1960 All. 285 and AIR 1952 Nag. 395, distinguished. Appeal allowed.