Research › Search › Judgment

Madhya Pradesh High Court · body

2000 DIGILAW 704 (MP)

Smt. Pappu Bai v. Sajan Das

2000-07-24

A.M.SAPRE

body2000
ORDER A.M. Sapre, J. 1. Mother of three children (all minors) has come up in appeal under Section 47 of Guardians and Wards Act, challenging the order passed by the learned IIIrd A.D.J., Indore, in Guardian Case No. 159/ 96, dated 17.11.1997. By impugned order, the learned trial Judge has been pleased to allow the application made by the father (respondent) under Section 25 ibid and has directed the appellant i.e. mother to handover the custody of three daughters to him (respondent-husband). Facts are these : 2. Out of wedlock between appellant and respondent, three children (two daughters and a son) were born, Chanchal -15 years, Sheetal -11 years and son -5 years (age at the time of making application in 1998). Unfortunately, differences arose between wife and husband (appellant and respondent) to this extent that it resulted in their separation. Both started living separately. The case of wife (appellant herein) was that husband i.e. father of three children was cruel to her and children, he was an addict of liquor, he would beat the wife off and on without there being any cause and had become nuisance value in the family. It was for this reason when matter went out of control, she left the house with these three minor children in 1992 and started living separately. The respondent then made an application in 1998, (almost after a period of six years) for the custody of three children which was allowed by the learned trial Judge by impugned order, it is this order which is challenged in this appeal by the wife i.e. mother of three children. 3. Heard Mr. R.C. Mehta, learned Counsel for the appellant and Mr. A.S. Rathore, learned Counsel for respondent. 4. Having heard the Counsel, parties as also children, I am of the view that appeal deserves to be allowed in favour of mother. 5. In such type of case, judicial pronouncements have laid down a concensus on one issue namely what is paramount is the welfare of children. In other words, Courts endeavour has always been to either ensure amicably settlement if possible or to ensure in what way and now the interest and upliftment of children is preserved. 5. In such type of case, judicial pronouncements have laid down a concensus on one issue namely what is paramount is the welfare of children. In other words, Courts endeavour has always been to either ensure amicably settlement if possible or to ensure in what way and now the interest and upliftment of children is preserved. Keeping this paramount consideration in mind, I had passed an order on 26.6.2000 directing mother (i.e. appellant), father (respondent) and three children to remain present on any convenient date so that this Court is able to ascertain the views of every individual and then decide the issue. 6. Even in past, this Court made attempt to effect reconciliation. With this end in view this Court went to the extent of appointing a Committee of three Advocates requesting them to effect amicable solutions. It was reported that three children are living since 1992 with mother who is in private service and earning Rs. 1,800/- per month whereas the husband is only an agriculturist having small piece of land. Parties resorted no settlement through Committee Members. 7. Even on the last date of hearing, I inquired from three children as to where would they like to live and all of them stated that they are only comfortable with their mother and that they are living with her for last more than eight years. They also informed when asked that they are studying in class 10th, 8th and 4th and are being looked after properly by their mother including their schooling as also upkeeping. I also noticed that all the three children though minor were very respective in answering the questions posed, they were well behaved and well dressed. When asked to mother (appellant), she stated that she is in private service and earning Rs. 1,800/- per month. She also said that she is being helped by her parents and brother, who are living in city. Even in matrimonial proceedings, the Trial Court after taking into account several factors had directed the wife to have the custody of three children by passing an order dated 14.12.1995 in her favour. 8. 1,800/- per month. She also said that she is being helped by her parents and brother, who are living in city. Even in matrimonial proceedings, the Trial Court after taking into account several factors had directed the wife to have the custody of three children by passing an order dated 14.12.1995 in her favour. 8. Looking to all aspects of the case, attitude of children, their wishes, the fact that they have been living for last more than eight years with their mother, the fact that they have been regularly going to school and taking proper education, the fact that in last eight years, the mother could properly look after them, with her self earning are indicative of fact that mother should be allowed to have the custody of all the three children until further orders and till any such adverse circumstance occur thereby adversely affecting the interest of children. The fact that respondent (father) is only and agriculturist and has no adequate source of income is not entitled for the permanent custody. However, looking to totality of circumstance, it will be proper that he (father) is allowed to meet his three children every month at the resident of appellant (mother) on any day convenient to both so that family ties are not totally broken. 9. Accordingly and in view of aforesaid discussion, the impugned order is set aside and the appeal is allowed with aforementioned observations.