CHAMAN LAL KOHLI AND OTHERS Vs. RAKSHA (DIVORCEE)

JUDGEMENT

(1.) The grand mother and the uncles of the two minors have filed this appeal under Sec. 47 of the Guardians and Wards Act, 1890') challenging the judgment and order of the Guardian Judge, Delhi dated 24th July, 1980 appointing Strut. Raksha, respondent-mother of the minors as guardian of their person and property. Briefly the facts are that the respondent Smt. Raksha Kohli was married to Agya Ram Kohli on 18th Jan., 1968. Deepa Kohli (female) and Anil Kohli (male) were born to them on 18th Feb., 1970 and 6th June, 1971 respectively. The parents of the minors did not pull on well. The respondent, therefore, left her husband in Aug., 1972. A petition for restitution of conjugal rights was filed against her and a decree was passed on 9th Jan., 1974. There was no restitution of conjugal rights. The marriage was dissolved by a decree of divorce dated 24th Aug., 1976. The respondent's husband Agya Ram remarried on 27th Nov., 1977 but unfortunately he died on 13th Oct., 1978. On 15th Dec., 1978 the respondent-mother of the minors Deepa Kohli and Anil Kohli filed A petition under Sections 7 and 10 of 'the Guardi- ans Act, 1890' for her appointment as guardian of their person and property alleging that the minors owned immovable and movable property, that their grand mother and uncles were not in a position to provide higher and good education and bring up the minors well, whereas she being the natural mother and staff nurse in Jai Parkash Narayan Hospital earning Rs. 850.00 per month was in a position to afford them all opportunities to rise high in all aspects of life, that Chaman Lal, appellant, one of the uncles of the minors, had withdrawn the amount of insurance policy belonging to minors and had utilised the amount for his benefit, that she was the only fit person to take care and bring up her minor children of tender age, and she was also the natural guardian under the personal law of the minors. The grand mother and the uncles of the minors in reply submitted that the petition was made with the object of usurping the assets and properties, that the respondent on dissolution of her marriage lost her status as mother of minors, that she was physically handicapped on account of paralytic attack and was incapable of doing any work, that her appointment as guardian of person and property was adverse to the interest and welfare of the children. I t was also pleaded that the deceased father of the minors had appointed Chaman Lal (Uncle) as guardian of Deepa Kohli, minor-nominee of the insurance policy, during her minority, that the minors were being looked after very well, that they, living with them for the last more than flour years, had no affinity with the respondent and therefore it was not in the interest and welfare of the minors to appoint the respondent as guardian of their pet son and property. The respondent in her rejoinder controverted all the allegations of the appellants.

(2.) The grand mother of the minors on 3rd Sept., 1979 filed a separate application (Guardianship Case No. 41 of 1979) for her appointment as guardian of their person and property. Both the petitions were tried together. The Guardian judge by his judgment dated 24th July, 1980 has held that after divorce the respondent did not cease to be natural mother and guardian of the minors, that Chaman Lal Kohli, uncle of the minors is employed as Daftri at Railway Headquarter earning Rs. 500.00 per month and Smt. Raj Karani, grand mother of the minors is a lady of extreme old age and her only source of income is rent to the tune of Rs. 400.00 per month, that Chaman Lap uncle has his own five school going children, that the joint family consisted of 10 members including the two minors and the income of Rs. 900.00 for such a family was a meagre amount and sufficient amount could not be spared for good education of the minors in a school of some repute, that the amount of one insurance policy of the deceased father of the minors was withdrawn by Chaman Lal, appellant, which he claimed to have spent on the minors, that the allegation levelled against Chaman Lai to the effect that he appropriated the amount of the insurance policy already withdrawn to his personal gain cannot be easily brushed aside and the apprehension was genuine, that the financial position of the appellants compared to that of the respondent stand on a poorer footing, that in case the minors are shifted to the custody of the respondent, the disturbance if any, would be a temporary phase which would fade with the passage of time, that the grand mother Smt. Raj Karni is a lady of quite advance age and may die at any moment, that Smt. Raj Karni was sitting on a chair and not in a position to attend the witness box, that after the death of Smt. Raj Karani the minors would be left at the mercy of their uncle Chaman Lal who is himself having five children, that after the death of grand mother it is difficult to believe that Chaman Lal would be treating the minors with the same affection as his own children, that discrimination between the minors on one hand and the children of Chaman Lal on the other hand may reflect on the development of the personality of minors by the time they attain majority. It has therefore been held that it was not in the interest and welfare of the minors to allow them to continue in the custody of the appellants. The respondent accordingly was appointed as guardian of the person and property of the two minors.

(3.) The grand mother and the two uncles have filed this appeal. The grand mother has also filed another appeal (F.A.O. No. 323 of 1980) challenging the dismissal of her application.