SMT. DAYAWANTI Vs. LT. RAJ SINGH MATHUR

JUDGEMENT

(1.) The order under appeal was passed under section 26 of the Hindu Marriage Act, 1955, at the same time as a decree for divorce was granted dissolving the marriage between the appellant and her husband. the respondent in this Court. According to the judgment under appeal the custody of the child was given to the husband who was in a better position to maintain the child. It was admitted that the child was studying in the Minerva Public School, an English Medium Residential Co-educational School. Accordingly, the Additional District Judge came to the conclusion that the child should remain with the husband, a Lieutenant in the Army who is in a better position to maintain and educate the child.

(2.) I am not satisfied that the learned Court has approached the question before it in the proper way. The Court was not dealing with a mere petition for custody, but was to determine who had to have the child after the marriage was dissolved. It must not he forgotten that the Court had granted a divorce to the parties on that very day and now the question was as to who was to look after the child later on. The fact that the husband is an Army Officer and the wife is not employed is not an unnatural state of affairs. Normally, it is the husband who is an earning person and the wife who is not employed, this does not mean that after the divorce the child must go to the husband who is financially beter off. The Court has to t select which parent should look after the child, keeping in view the age, the sex and the other circumstances of the case. If the divorce has been granted on the ground of adultery or one of the parents is living in adultery, then it may he a consideration for giving the other parent either complete custody or at least more period of custody than the defaulting parent. In the present case, the divorce has been granted on the ground of cruelty which has resulted mostly from the fact that the husband is a serving Officer in the Army, whereas the wife has preferred to remain at the village hone near Delhi. It is not at all a case in which the wife has incapacitated herself from becoming the custodian of she child. I see no reason why the father should get the custody of the child to the exclusion of the mother. In fact it appears to me that the husband is handicapped in this case because he is serving in the Army as an Officer and is, therefore, liable to be posted to all sorts of places in India. He may he at a family station or, he may not be. There is no doubt that the child is in a Residential School which looks after his interests during the period the School is functioning. But where is the child to go during the vacation period ? Is he to follow the father to any place where the father may be or, is he to be allowed to fend for himself ? I do not think that the circumstances have been properly appreciated by the Court below.

(3.) The contention of the learned counsel for the appellant was that the proper person to have the custody of the child was the mother who was in a much better position to look after the Child who is a young child of six or seven years of age. The primary view point of the Court in such cases must he the welfare of the child as opposed to other considerations. There is no doubt that the father is in a better financial position to loop after the child, therefore, it is right that he should pay for the education of the child while he is in the school, but I see no reason at all why the custody of the child should not he with the mother during the vacation period. On the other hand, it would also he unfair to the father to be deprived of the custody of the child. It is for the welfare of the child that he should have the affection of both the father and the mother as far as possible in the circumstances of the case. I would, therefore, direct that the custody of the child will be with the mother during half of the vacation period while the child remains in the Boarding School. The 'remaining half of the vacation can be spent with the father, if the father is serving at a family station or is on leave. If he is serving at a non-family station, then the child should remain with the mother as far as possible because it will not be possible to send the child to some other relative. All this will be subject to further orders by the Court as the child grows up because the situation is bound to change when the child is of more mature age.