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2013 DIGILAW 389 (PNJ)

Baldev Kaur v. General Public

2013-03-25

Rajive Bhalla, Rekha Mittal

body2013
JUDGMENT Mrs. Rekha Mittal, J.:- The present appeal lays challenge to order dated 15.12.2011 passed by the Additional Civil Judge (Senior Division), Sunam, (exercising the powers of Guardian Judge under the Guardians and Wards Act, 1890) (hereinafter referred to as “the Act”), dismissing the petition of the appellant-Baldev Kaur. 2. Baldev Kaur wd/o late Sh. Sakander Singh, grand mother of minor Ramneet Singh, prays for appointing her as guardian of the person and property of the minor. As per averments in the petition, father of the minor namely, Parminder Singh, died and the minor is living with the petitioner. She has no interest adverse to the minor. After death of Parminder Singh, Gurjit Kaur-respondent No.2 (mother of the minor) has contracted second marriage with Gurdeep Singh son of Mukhtiar Singh. Respondent No. 2 is not fit to be appointed as guardian of the minor. The appellant has great love and affection for the minor and she is looking after his property. She has a residential house at village Chhahar, a good source of income and is capable to provide the facilities for his better future. 3. Respondent No. 2 filed reply seriously contesting the claim of the appellant and, in turn, raised the plea that the appellant is 84 years old and unable to maintain and look after herself. She is a resident of Canada and has handed over the custody of the minor to some relative at village Dhaleta, District Jalandhar. The appellant wanted to settle the minor at Canada but when the papers were sent to the concerned Embassy, the same were rejected on the ground that the appellant is unable to maintain herself and she cannot be treated as a guardian of the minor. After death of Parminder Singh, she was remarried by the appellant with Gurdeep Singh, a relative of the appellant. The appellant, played fraud and forgery by obtaining signatures of the respondent agreeing to send the minor to Canada but she has never given consent for giving custody of the minor to the appellant. She has asserted her claim for custody being the lawful and natural guardian of the minor with the plea that she is the best person to look after the interests of the minor. She has filed a counter claim seeking custody of the minor with the plea that the minor is in illegal custody of the appellant. 4. She has asserted her claim for custody being the lawful and natural guardian of the minor with the plea that she is the best person to look after the interests of the minor. She has filed a counter claim seeking custody of the minor with the plea that the minor is in illegal custody of the appellant. 4. The controversy between the parties led to framing of following issues by the learned trial Court:- “1. Whether applicant is liable to be appointed as guardian of minor Ramneet Singh for his person and property? OPA 2.Whether the application is not maintainable? OPR 3.Whether the applicant has got no locus standi to file the present application?OPR 4.Whether respondent is entitled to the custody of minor child through Court?OPR 5.Relief.” 5. To substantiate her claim, the appellant appeared in the witness box and examined Bahadur Ram Clerk, Shah Satnamji School, Sirsa, PW-2, Dr. Inderjit Singh, Handwriting and Finger Prints Expert PW-3, Harmander Singh PW-4, Mohan Singh PW-5 and Gurcharan Singh PW-6. She also tendered into evidence documents Ex. P-13 and P-14. 6. To rebut evidence of the appellant and to establish her entitlement for custody of the minor, respondent No. 2 examined herself as a witness besides examining Rahul Singh Food and Supply Inspector RW-2, Sanjiv Sharma, teacher of Springdale Public School, Sangrur RW-3, Satgur Singh, Registry Clerk, Sub Registrar, Sunam and Raghbir Singh RW-5. She also tendered into evidence documents Ex. R-7 to R-9. 7. After having heard counsel for the parties and appreciating the entire matter in detail, the learned trial Court recorded its findings on Issues No. 1 and 3 against the appellant whereas Issue No. 4 has been decided in favour of respondent No. 2 and as a consequence, petition filed by the appellant was dismissed but the counter claim filed by respondent No. 2 has been allowed directing the appellant to hand over the custody of the minor to the mother within a period of one month. 8. Feeling aggrieved against the verdict of the learned trial Court, the present appeal has been preferred by Baldev Kaur, appellant. 9. Counsel for the appellant submits that after death of father of the minor and re-marriage of his mother, respondent No. 2, the appellant being the grand mother of the minor is the best person to look after the needs and welfare of the child. 9. Counsel for the appellant submits that after death of father of the minor and re-marriage of his mother, respondent No. 2, the appellant being the grand mother of the minor is the best person to look after the needs and welfare of the child. It is further contended that the appellant is keen to take the minor to Canada but she has postponed it till the decision of the case. It is further argued that the appellant owns moveable and immovable property and she has sufficient sources to provide the luxuries of life to the child. It is further argued that as respondent No. 2 has contracted second marriage after demise of her husband, she is residing with her second husband, who is a stranger to the minor, therefore, handing over custody of the minor to respondent No. 2 would be an emotional set back to the minor, who has not even seen his mother for the last many years. 10. Counsel for the contesting respondent No. 2 contends that after death of father of the minor, the mother is the best person to look after the emotional, physical needs and comforts of the minor. It is submitted that the appellant, grand mother of the minor, is more than 80 years old and she is herself dependent on others for her care and other needs. The appellant is a Canadian citizen and she lives in Canada for more than six months in a year. It is argued with vehemence that as the appellant stays away from India for a major part of the year, she cannot look after even the day to day needs of the child. The appellant inherited land on the death of her son-Parminder Singh (father of the minor), being a class-I heir. She has transferred that land in favour of her another son, which speaks volumes about the interest of the appellant in the welfare of the child whereas respondent No. 2 has transferred her share in the property of her deceased husband in favour of the minor. Respondent No. 2 is working in Sant Ishar Singh Public school, Chhahar. She has two acres of land inherited from her parental side. She owns a house. She has sufficient means to satisfy all the needs of the minor. Respondent No. 2 is working in Sant Ishar Singh Public school, Chhahar. She has two acres of land inherited from her parental side. She owns a house. She has sufficient means to satisfy all the needs of the minor. According to counsel, learned trial Court has rightly rejected the claim of the appellant and allowed the custody of the child to her mother. 11. We have heard counsel for the parties, perused the judgment passed by the learned trial Court and the paper book. 12. There is no quarrel with the settled position of law that while adjudicating the issue of appointment of guardian of a minor or custody of the minor child, the only relevant consideration is welfare of the child. The egos and clashing interests of the parties cannot be allowed to be pitted against the interests of the minor. Admittedly, the appellant, grand mother of the minor, is about 85 years old. She is a citizen of Canada and stays there for almost six months in a year. Keeping in view age of the appellant, she would be dependent upon the family of her daughter with whom she is living in Canada, for her day to day care and to meet her day to day needs of food etc., may not be economically. The appellant during her absence from India has left the child with his paternal uncle, who has his own children to look after. Admittedly, the appellant has transferred the land inherited by her on the death of Parminder Singh, father of the minor, in favour of her another son. It is astonishing that the appellant inherited the estate of Parminder Singh, being class-I heir and transferred that land in favour of her another son in preference to the minor child. The minor has also inherited land being class-I heir of his father. It appears that as the minor has inherited land belonging to Parminder Singh, the appellant and her other family members do not want the child to go away from their family so that the land inherited by the minor should remain in the family of his father. The minor has also inherited land being class-I heir of his father. It appears that as the minor has inherited land belonging to Parminder Singh, the appellant and her other family members do not want the child to go away from their family so that the land inherited by the minor should remain in the family of his father. Keeping in view the old age of the appellant, her stay in Canada for more than six months in a year coupled with the transfer of land, as referred hereinabove, it casts a serious doubt in the bona fides of the appellant in regard to her interest in the welfare, up keep and maintenance of the child in the best possible atmosphere and surroundings. As the appellant stays away from India for major portion of the year, no such plea of the appellant can be accepted that she is the best person to look after the person and property of the minor. She has left the custody of the minor with other family members during her stay in Canada, which belies and falsifies her claim that she can look after the minor better viz-a-viz respondent No. 2, admittedly, the mother of the child. Counsel for the appellant has raised a plea that as the mother has contracted second marriage, she would not be able to look after the child during her stay with her present husband. It is not disputed that respondent No. 2 has developed marital differences with her second husband and even divorce proceedings are pending in a Court. As respondent no. 2 has been left with no interest in her matrimony, her marriage otherwise cannot stand in her way of seeking custody of her child. Respondent no. 2 is a working woman and she owns landed property. The minor has inherited the property of his father. The share of inheritance received by respondent No. 2 on the death of her husband, has already been transferred by her in favour of the minor. She has sufficient means to satisfy the needs rather comforts of the minor. She being the mother is the best person to look after the well being, up keep and maintenance of her child, who is eventually the only hope in future, for the mother. She has sufficient means to satisfy the needs rather comforts of the minor. She being the mother is the best person to look after the well being, up keep and maintenance of her child, who is eventually the only hope in future, for the mother. The mother is the best person to ensure that her child grows into the best atmosphere to become a useful member of the society. The learned trial Court, on a detailed consideration of the matter, has rightly held against the appellant and in favour of respondent No. 2. We do not find any error much less illegality in the finding recorded by the learned trial Court as would call for interference. 13. In view of what has been stated hereinabove, we find no reason to interfere in the order of the learned trial Court. In the result, the appeal is dismissed being devoid of merit. No order as to costs. --------0.B.S.0------------ ——————————