NIBHA BHATNAGAR Vs. OM PRAKASH BHATNAGAR

JUDGEMENT

(1.) This is an appeal filed against the order of the learned Guardian Judge, giving the guardianship of the son Mr. Avinish to the respondent father.

(2.) The parties were married on 1973 and Avinish was born in 1974 and the daughter Priyanka in 1978. The parties have not been living together since June, 1985. In July, 1985 the respondent-husband filed an application for the guardianship. In reply to the said application, the wife had shown her willingness to go and join the husband with the children. This fact is on the record of the Court. Nothing much happened in the petition and in Dec., 1985 the appellant mother filed an application for maintenance of the children. The Court passed an order for payment of maintenance at the rate of Rs. 300 per month for each child. Counsel for the appellant states that this amount is not being paid. The counsel states that arrears of Rs. 2,s400 are still outstanding on this account. In Feb., 1986 the husband filed the petition for restitution of conjugal rights which is still pending. I had made attempts in this Court by separately examining the parties in the Chamber for reconciliation between them, but those attempts have failed.

(3.) The only relevant consideration in the application for guardianship is the interest of the child. The trial Court has failed to examine the child in Chamber and to ascertain his wishes. The approach of the trial Court, viz., that the appellant should have produced the child, Avinish, as a witness (which also includes the cross-examination) was wholly inappropriate. I examined the child in the Chamber at great length and tried to elicit big wishes and feelings in regard to both the parents. The child is a very intelligent child. He has vividly described the way in which the father kept him in isolation and, at times, under the lock. He has also described the beatings given to him by the father. He has also described how his mother was given a beating in his presence. He has categorically refused to stay with the father because, according to him, the father does not treat him and his mother well. These facts are corroborated by the evidence of the appellant before the trial Court. The trial Court has found that the child improved in his academic performance which he was with the father. On my examination of the child, who is now 12 years old, I found that he understands the things better and is not likely to fair well in his studies if the present atmosphere of uncertainty and fear is not removed from his mind. It is true that at this age father's guidance is very useful in regard to the matter of career for the children, but that is so in a normal family. The mother is working as a Receptionist I.S.I. and she has studied upto intermediate. Counsel for the appellant states that the mother has already engaged a special tutor for the child.