Prem Vati And 5 Ors. vs Nirmal Jain And Anr.
1985 Latest Caselaw 481 Del

JUDGMENT

N.N. Goswamy, J.

(1) This letters patent appeal is directed against the judgment dated December 10, 1982 passed by the learned Single Judge of this Court whereby the respondent-mother was declared to be the lawful guardian of her minor son Ashu.

(2) The respondent-mother filed a petition on 14.1.1985 under section 25 of the Guardian & Wards Act for declaring her to be the guardian of the minor and for the custody of the minor. It was pleaded that she was married to Vipin Kumar Jain on 5,2.1965 at Delhi according to Hindu rites. The marriage was consummated and a son was born on 9.II.1968, and was named Ashu. Her husband died on 4.10.1974 and at the time of his death, she was staying with her father at Shakurbasti, Delhi. She was informed about his death after the funeral ceremony. It was further pleaded that the appellants, i.e. the mother, the brother and sisters of her deceased husband want to deprive her of the custody of her only son Ashu. She pleaded that she was a teacher having sufficient income to maintain and educate her son and her parents and brothers were well settled and were in a position to bear her personal expenses. It was further stated that she being the natural guardian of her minor son was entitled to his custody. She pleaded that in spile of intervention by common relations and friends the appellants refused to deliver the custody of the minor to her and thereby committed wrong. They went to the extent of telling the school authorities where the minor was studying that the mother of the minor was dead.

(3) The petition was contested by the appellants. It was pleaded in the written statement that Vipin Kumar Jain died when the minor was only 10 months old. Since then the minor has been living with them and the respondent-mother never tried to know his welfare and she never claimed the custody of the minor for such a long time. The minor was properly being looked after and had all the facilities of life. The uncle who was looking after the minor was a Scientist and was drawing a salary of more than Rs. 1100.00 per month and the other appellants were running a private educational school earning sufficient to maintain the minor.

(4) On trial of the petition, the learned trial Judge held that after the death of the father, the mother was both the natural and legal guardian of the child and as such the petition under section 25 of the Act was maintainable. He, however, held that the respondent-mother had failed to establish that the return of the custody was for the welfare of the child inasmuch as the minor was being looked after well and had the facilities of television. telephone and refrigerator etc. According to the learned trial Judge, all these facilities could not be provided by the respondent-mother and as such it was not for the welfare of the child that the custody should be transferred. It was further held that the minor was attached to the appellants since he was living with them right from the beginning. Consequently the petition of the respondent-mother was dismissed.

(5) The respondent-mother filed an appeal in this court. The learned Single Judge, after carefully examining the material on record, came to the conclusion that the respondent was the natural guardian and there was nothing on record to hold that it was not in the welfare of the minor to declare her as the guardian. Consequently the appeal was allowed and the respondent-mother was declared to be the guardian of the minor under section 7 of the Guardian and Wards Act, 1890. The learned Single Judge further directed the respondents to deliver the custody of the minor to the respondent-mother within two weeks, failing which the said minor was to be arrested in accordance with law and delivered to the respondent.

(6) Dissatisfied with the aforesaid judgment of the learned Single Judge, the appellants have filed the present appeal. At the time when the appeal came up for hearing before us, it was pointed out that the minor was about 17 years of age and was not willing to stay with the respondent-mother, we called the parties including the minor and had detailed talk in the chamber. We persuaded the minor to stay with the respondent- mother for sometime so that he could have the love and affection of the mother. Unfortunately, however, the minor did go to the mother but left the house in the evening on the same day. We again called the minor in our chamber and had a detailed discussion with him. The minor brought it to our notice that he had love and affection For his mother but due to his final examination for which he was getting coaching etc. at his house it was not feasible for him to stay with the respondent-mother, particularly, when the respondent-mother was permanently living in Uttar Pradesh and not in Delhi. This is one of the most unfortunate cases of an unfortunate mother. The respondent-mother also appeared before us in chamber and stated that the minor should be persuaded to live with her and she frankly stated that she will not enforce the order of the minor being arrested as the same was not for the benefit of the minor and she was keen to have the welfare of the minor. The minor promised to look after his mother after he finishes his education and we can only wish that he sticks to this undertaking given to us and better senses prevail on him

(7) The learned counsel for the appellants was unable to assail the findings recorded by the learned Single Judge and the only contention was that the minor being 17 years of age was capable of selecting his own guardian. Having talked to the minor, we find that the minor is being ill-advised and is probably under the influence of his uncle. In this situation, we are not in a position to set aside the judgment and accordingly we maintain the judgment and dismiss the appeal. As regards the directions regarding the handing over of the custody of the minor to the respondent and the minor being arrested we leave it open to the respondent to have it enforced if she so likes. This is being done on the specific statement made by the respondent-mother that she would not like to enforce those directions and would leave it to the will of the minor.

(8) For the reasons recorded above, the appeal is dismissed and the parties are left to bear their own costs.