Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 2693 (RAJ)

Munni v. Kishore Kumar

2005-10-18

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.-This appeal is against the Judgment and decree dated 210.2004 passed in Civil Misc. Case. No. 4/2004 under Section 6 of the Hindu Minority and Guardianship Act, 1956 (for short the Act of 1956) by the learned District Judge, Jalore by which the application filed by the appellant-mother for the custody of the child Kirti Kumar was dismissed by the trial Court. 2. Brief facts of the case are that the appellant submitted a petitioner under Section 6 of the Act of 1956 stating therein that the marriage of the appellant and Respondent No. 1 took place on 19.04.2000 at village Ummedabad. A son Kirti Kumar was born on 210.2002 out of the wedlock of the appellant and Respondent No. 1. According to the appellant, she remained at her parents house for five months even after the birth of child and thereafter her husband, Respondent No. 1 took her to his house. The appellants brother is married to Respondents No. 1s sister. The respondents family is not interested in sending Respondents No. 1s sister with the appellants brother and they want to have second marriage of appellants brothers wife with other person and because of this reason, the appellant was thrown out from the house by the respondent. The appellant submitted that she made efforts for getting the custody of the child but the respondents are not giving custody of the child to the appellant. At the time of the filing of the petition for custody of the child, the age of the child was 17 months only. In the trial Court, since originally the husband of the appellant alone was party, therefore, the Respondent No. 1 mother, grand-mother of the child, submitted an application under Order 1 Rule 10, CPC for being impleaded as party stating therein that the child Kirti Kumar is living with her as the appellant left the child with her. Respondent No. 2 also after becoming party, submitted reply to the appellants application under Section 6 of the Act of 1956 joining with the Respondent No. 1. Respondent No. 2 also after becoming party, submitted reply to the appellants application under Section 6 of the Act of 1956 joining with the Respondent No. 1. The trial Court framed issues and after considering the evidence of the parties, held that in view of the evidence produced by the defendants-respondents, it is proved that the applicant, mother of the child-appellant, took poison and she was given treatment and thereby she could be saved and the petitioner left the newly born child Kirti Kumar voluntarily, therefore, she is not entitled to the custody of the child. 3. Being aggrieved against the Judgment and decree of the trial Court dated 210.2002, the appellant preferred the present appeal. This Court, while admitting the appeal by order dated 16.08.2005, directed both the parties to personally remain present in the Court and Respondent No. 2 was also directed to bring the child also with her. On 06.09.2005, the plaintiff-appellant and Respondent No. 2 grand-mother of the child appeared but Defendant No. 1 father of the child, did not appear. Both the parties could not settle the matter, therefore, the arguments were heard. 4. According to the learned Counsel for the appellant, the Court below misread the evidence and committed serious error in recording the finding against the appellant with respect to the allegation of consuming poison by the appellant and about allegation that the appellant left the child with the respondent voluntarily. It is also submitted that the documents produced by the respondents-defendants themselves show that the documents were forged and fabricated and also have no relation with the appellants treatment. It is also submitted that the Court below failed to appreciate that looking to the age of the child, who born on 210.2002 only, it will be in the interest and welfare of the child if he lives with his mother, the appellant only. The Court below even failed to consider the question of welfare of the child and did not decide how the custody of the child can be given to grant-mother when the mother is ready to keep the child and ready to maintain the child, particularly when the father is not claiming the custody of the child. It is also submitted that story of consuming poison by the appellant is highly unbelievable as there exists no reason for the appellant to take poison. 5. It is also submitted that story of consuming poison by the appellant is highly unbelievable as there exists no reason for the appellant to take poison. 5. The learned Counsel for the respondents vehemently submitted that the defendants produced doctor as a witness and also placed on record the treatment prescriptions of the appellant which clearly shows that the custody of the child with the appellant may cause serious harm to the child. It is also submitted that the child is not even knowing his mother and at this stage, if the custody of the child will be given to the appellant, there is no possibility that she will not be able to maintain the child. According to the learned Counsel for the respondents, the appellant herself is dependent upon her parents and she has no source of any income to keep and bring-up the child. 6. I considered the arguments of both the learned Counsel for the parties and perused the record also. It is not in dispute that the appellant is mother of the child and Respondent No. 1 is father of the child but the child is not in the custody of Respondent No. 1. The marriage of the appellant with Respondent No. 1 took place on 19.04.2000 and at the time of the filing of the petition, the child was of the age of 17 months only. As per the law, the child of such age can live well with her mother but paramount consideration is the welfare of the child. The trial Court rejected the appellants application for custody to the child on the ground that from the evidence it is proved that the appellant consumed the poison and, therefore, it will be dangerous to give custody of the child to the appellant. For this, it will be worthwhile to consider the documentary evidence first which were produced by the defendants. Exhibit A-1 is the prescription issued from Bishonoi Nursing Home Exhibit A-/1 is dated 1.02.04 without mentioning the year. Exhibit A-2 and Exhibit A-4 bear no date Exhibit A-1 to A-3 contain no name of the patient. These are the prescriptions signed by the doctor. Dr. Hanuman Dutt Bishnoi, who was produced as witness by the defendants-respondents. He stated on oath that he never gave any treatment to the appellant nor she was brought to him as a patient consuming poison. These are the prescriptions signed by the doctor. Dr. Hanuman Dutt Bishnoi, who was produced as witness by the defendants-respondents. He stated on oath that he never gave any treatment to the appellant nor she was brought to him as a patient consuming poison. He was declared hostile at the request of the defendants, upon which defendant cross-examined the doctor. In cross-examination, Dr. Hanuman Dutt Bishnoi admitted that the tube which has been mentioned in the prescription Exhibit A-4 is used for taking out the poison from the stomach and is also used for any stomach disease. He stated that in the case of consuming poison, the matter is first referred to the police. He denied that since he did not inform the police about consuming poison by the appellant, therefore, he is giving false evidence. In view of the above facts, it is clear that the defendants-respondents want to reply upon the prescriptions Exhibit A-1 to 3, which they failed to connect with the appellant because of the reason that the prescriptions bear no name and the prescriptions Exhibit A-2 and A-3 bear even no date. The doctor gave statement against giving treatment to the appellant for consuming poison. Apart from it, it will be worthwhile to mention here that according to the reply of the defendants themselves, the appellant remained only for 8 days at her parents house after the birth of her son and thereafter she came to the house of the respondents, where just after 2 days she took the poison. The date of birth of the child is 210.2002 and in view of the above facts as alleged by the defendants, the petitioner took the poison in the first week of November, 2002, whereas the medical prescription Exhibit A-1 is of the Second April and if read with Exhibit A-4, it is 02.04.2003. In view of the above, the documents produced by the defendants cannot be accepted to have any relevance with the treatment of the appellant. The trial Court ignored these important relevant facts while considering the documents Exhibit A-1 to A-3. In addition to above, the receipt of Ganpati Medical Store (Exhibit A-4) dated 02.04.2003 also has not been proved having any connection with the treatment of the appellant and like Exhibit A-1 to A-3, Exhibit A-4 also does not bear the name of the appellant. 7. In addition to above, the receipt of Ganpati Medical Store (Exhibit A-4) dated 02.04.2003 also has not been proved having any connection with the treatment of the appellant and like Exhibit A-1 to A-3, Exhibit A-4 also does not bear the name of the appellant. 7. The appellant gave her own statement and stated that she gave birth to the child on 210.2002. The delivery took place at appellants parents house but the appellants husband did not took the appellant to his house and after five months only, the appellants husband took the appellant to her in-laws house. In view of this, the appellant reached to the home of respondent in March, 2003. In view of this fact incident of taking poison by appellant cannot happen on 02.04.2003. She also stated that the Respondent No. 1s sister is married to the appellants brother but she is also not coming to the appellants house because the appellants in-laws are not interested in sending the said Smt. Asha to the appellants brother Jitendra and to harass, the appellants son has been kept by the respondent. She stated that when she went to her in-laws house to take the custody of the child, she was abused. She stated that the child will not be able to live without mother and at present, the child needs love and affection of mother. In cross-examination, she stated that she did not report to police for any action against her husband. In cross- examination, she also stated that initially she was not interested in coming to the Court and when she fad-up, she initiated the proceedings. However, she admitted that she is dependent upon her parents. She also stated that she can maintain her child properly and she will do the work whatever she can do. She also stated that she has not been divorced. 8. In rebuttal, Respondent No. 2, Smt. Shanti Bai, gave her statement and stated that her son is residing at Bangalore. The age of the child at the time of the statement of Respondent No.2 is 2 years. She alleged that the appellant left the child with the Respondent No. 2 and she is keeping the child properly. She stated that the appellant consumed the poison and upon which they took the appellant to the doctor. The age of the child at the time of the statement of Respondent No.2 is 2 years. She alleged that the appellant left the child with the Respondent No. 2 and she is keeping the child properly. She stated that the appellant consumed the poison and upon which they took the appellant to the doctor. The doctor advised that the child should not be given breast feeding because of the fact that the appellant took poison. In cross-examination, the witness Smt. Shanti Bai admitted that her daughter is married to appellants brother and she further admitted that the Respondent No. 1s daughter is not living in her in-laws house and she is residing at Aahore with her daughter. She admitted that she did not produce any documentary evidence about admitting of the appellant in the hospital. She also admitted that after discharge from the hospital, the appellant remained in the house of Respondent No. 1 Respondent No. 1 Kishore Kumar also appeared as NAW-2 and gave statement. He denied the allegation of the appellant and stated that the appellant is living with her father at Bangalore. He also stated that the child Kirti Kumar is living with his mother, i.e., Respondent No. 2 grand mother of the child Kirti Kumar. The witness Kumar Uma (NAW-3) is sister-in-law of the appellant. She also stated that the appellant consumed the poison. The same statement is of witnesses NAW-4 Smt. Vidhya Devi and NAW-5 Narpat Singh. 9. It is clear from the statement of these witnesses produced by the defendants that they all stated on oath that the appellant consumed the poison. The documents produced by the defendants are not reliable documents and looking to the interest of the witnesses in the defendants, their oral evidence cannot be relied upon so far as the allegation of consumption of the poison by the appellant is concerned. It appears from the evidence of both the parties that the appellants case is that the child of this age cannot live without the love and affection of the mother. The trial Court drawn adverse inference against the appellant because of the fact that she did not file any divorce petition as. The trial Court committed serious error of law in drawing adverse inference against the appellant. The trial Court drawn adverse inference against the appellant because of the fact that she did not file any divorce petition as. The trial Court committed serious error of law in drawing adverse inference against the appellant. The facts reveal that the appellant sought the custody of the child who was of the age of 17 months only and there are no serious allegation against the appellant if the allegation of appellants consuming poison is rejected. The appellants husband has not shown his serious willingness to keep the custody of the child with him. In these circumstances, there was no reason for the trial Court to allow the custody of the child with Respondent No. 2 grand-mother. There are oral statements that the appellant will not be in a position to bring-up the child but that cannot be believed in view of the fact that the appellant herself is dependent upon her father and her other family members. The Respondent No.1 is also not keeping the child but the child is in the custody of the Respondent No. 2 mother of the appellant, who also is an old lady and a non-earning lady. In view of the above facts, the welfare of the child can well be protected by giving the custody of the child to the appellant. 10. In view of the above discussion, the appeal deserves to be allowed and hence allowed. The Judgment and decree of the trial Court dated 210.2004 is set aside. The appellants application filed under Section 6 of the Hindu Minority and Guardianship Act, 1956 is allowed and the respondents are directed to handover the custody of the child to the appellant forthwith. No order as to costs.