SMT. MANGLA DEVI Vs. SHRI RAM BAHADUR THAPA

JUDGEMENT

(1.) This first appeal has been filed by the mother under Sec. 47 of the Guardian and Wards Act 8 of 1890 (hereinafter referred to the Act) against the order of Shri R.K. Sain, Guardian Judge, Delhi, dated 13th may, 1974, passed under section 25 of the Act ordering the custody of the minor to be gives to the respondent-father.

(2.) The minor in the case is a boy who was born on 23-11-1968. The appellant and the respondent were married in June, 1967, but the appellant deserted the respondent on 16th Dec., 1969. The respondent had brought the petition giving rise to this appeal on 23.11-1972 for custody of his minor son on the allegation that the mother of the minor was living in adultery and has got abortion to of pregnancy out of illicit connections. He has relied on the report of the doctor dated 28-9-1972 (which was obtained during the pendency of a petition for maintenance instituted by the appellant before me under section 488 of the Code of Criminal Procedure and which proceeding has subsequently been withdrawn). The petition under section 25 was resisted by the appellant herein who asserted that the parties were married according to Hindu rites and were residing in the President's estate and that the husband respondent had been crural to the appellant and had been her off and on and kicked -her out of his house in Dec., 1969. It was asserted that the appellant wife had instituted a petition far maintenance and had claimed a sum of <del>&#2352</del> 100.00 for maintenance of herself as well as her child. it was further alleged that the child was being properly looked after and was still a sucking child. On the pleadings of the parties, the court framed the following issue:

(3.) The doctor who had examined the appellant in the proceedings under section 488. Criminal Procedure Code, firstly on 28th Sept. 1972 and again on 21st March, 1971, proved her report Ex. PW 2/1 and gave her opinion that the mother. Mangla Devi had a recent delivery not earlier than one week and not later than one month, on the date of the examination. The doctor was, however, unable to state as to whether it had been a case of actual, delivery, or abortion or miscarriage. The respondent examined as PW 1 deposed that the appellant mother had been living in adultery and he also relied upon the doctors report mentioned above. He further stated that he had come to know that the appellant was pregnant in Sept., 1971 and has got an abortion 'performed and that after Dec., 1969 the appellant and not the respondent had never lived together as husband and wife. The witness deposed that the appellant was leading an unchaste to life, and so it was not in the interest of the minor to live with the mother.