ISSAC JOTI SEN Vs. SUNILA SEN

JUDGEMENT

(1.) This appeal under Section 47 of the Guardian and Wards Act, 1980 (hereinafter referred to as 'the act') challanges the judgment and order dated 27th Novombar 1980 of the Guardian judge holding that the rsspondent was entitled to the custody of the minor but dismissing her application for her appointment or declaration as guardian of the minor. Briafly the facts arc that the appellant and the respondent were married according to Christian Rites at Chirst Church, I-Butler Road, Delhi on 16th June 1976. A female child was born out of said wedlock on 29th May, 1977. Her name is Leena Priti Sen. She was born at St. Stephen Hospital, Tis Hazari, Delhi. The respondent lived with the appellant till June, 1978. It is alleged that she was turned out of the matrimonial home by the appellant and the child was snatched from her with the result that she had to leave alone the matrimonial home and to take shelter with her parents. On 19th September, 1978 the respondent filed the petition under Section 7 of the Act for declaring her to be the guardian of the female child, namely, Leena Priti Sen and to grand the care and cuatody of the minor to her. The respondent sought declaration and custody on the ground that the minor was of a very tender age and except she none else could look after her and she being below the age of five years, her custody should ordinarily be with the mother. The appellant resisted the proceedings pleading that the respondant was never turned out of her matrimonial home by him, that he was a fit person to act as guardian to keep the child in his custody, The Guardian Judge after recording evidence held that the appellant, father of the minor, was not unfit to be the guardian of the person of the minor and therefore the petition for declaration of the respondent as guardian was dismissed in view of Section 19(b) of the Act. As regards custody of the minor, the Guardian Judge concluded after discussing the evidence on record that it was in the interest and walfare of the child, to remain in the custody of the mother i.e. the respondent. The Guardian Judge dismissed the respondent's petition for getting her declared as guardian but allowed her petition for the custody of the minor. The appellant father challenges the order granting custody of the minor to the respondent. The respondent by filing cross-objections challenges the order of the Guardian Judge refusing to declare her as the guardian of the minor. The father filed this appeal and on 8th December, 1980 at the time of admission of the appeal the custody of the minor child was handed over by the appellant to the respondent.

(2.) Learned counsel for the appellant submits that the order of the Guardian Judge is without jurisdiction and that the custody of the child cannot be transferred as he had been in the custody of the child upto December, 1980. The appellant has not challenged the finding of the Guardian Judge that it was in the interest and welfare of the minor to remain in the custody of the mother. He has raised the legal question that unless a father is declared unlit Section 19(b) of the Act, no person other than the father of the minor could be appointed or declared as a guardian. He further submits that a guardian is entitled to the custody of the minor and that respondent being not a guardian is not entitled to the custody of the ward. Learned counsel for the respondent on the other hand submits that the custody of the word should remain wiih the mother if the court holds that it would be for the welfare of the ward. He Submits that it is not necessary to determine whether the father was unfit to be the guardian of the person of the minor. He furthar submits that the female child is of tender age and tharefore the custody should be with the mother.

(3.) The order of the trial court was passed on 27th November, 1980. It is admitted that on 30th April, 1981 the appellant-father filed a petition for judicial separation against the respondent undersections 22 and 23 'of the Indian Divorce Act which is still pending.