RAM PURI Vs. SOHAN LAL

JUDGEMENT

(1.) This appeal has been presented from the older of the learned Guardian Judge, Delhi, dated 8th 'November, 1966 allowing the petition of Sohan Lal (respondent before me under section 25 of the Guardian and Wards Act for delivery of the custody of two minor children. The application was presented against Smt. Ram Piari, wife of Sohan Lal, and mother of the two minor children. The application was opposed by the mother of the children and on the pleadings the only issue framed and tried by the Court below was whether the appellant was entitled to the custody of the minors. The learned Guardian Judge was influenced by the fact that under Hindu law, father is the natural guardian of the minor children and that in the case in hand, the minors were not of such tender age as to require constant attendance from the mother. On this view, the learned Judge found no reason why the natural guardian should not be allowed custody of his miner children. While- narrating the facts, the Court also observed that Smt. Eam Piari had applied for maintenance, under section 488, Criminal Procedure Code, which was dismissed and her allegations that she had been maltreated and turned out by her husband were not upheld. Maintenance for the children was, however, allowed. The Court below vaguely referred to two judicial proceedings in which it had been obsqved that Smt. ham Piari had left the house of her husband and alter having lived with him for 18 years and this, according to the learned Juge. could not afford conducive atmosphere for the minors to live with their mother. From this also the conclusion was drawn that the welfare of the minors required that they should live with their father. In so far as the allegation that Sohan Lal was a gambler and a drunkard is concerned, the Court observed that the four witnesses examined in this behalf could not depose anything from their own knowledge that they saw the petitioner gambling or taking liquor. It was, therefore, considered to be hearsay and, accordingly not entitled to much weight. It was substantially on this view.that an order was made granting custody oi the minor children to Sohan JLal.

(2.) On appeal, the learned counsel for the appellant .has submitted that the learned Guardian Judge has taken a somewhat superficial view, both of facts and of ,law. Merely because the father is the natural guardian of the minor, he cannot, so submits the counsel, be held entitled conclusively to the custody of the .minor children The Court below should have considered the welfare of the minors to be the paramount consirderation and should also have given due weight to the. wishes of the minor children as they were intelligent enough to express their own likings and inclinations. The submission is not without merit. In regard to the allegation of the husband indulging in gambling or taking liquor, again, the approach of the learned Judge does not seem to be faultless. Normally people do not come forward and profess to be gamblers or that being in the company of gamblers, they were witnesses to an individua.l indulging in gambling, nor would a witness come and depose that he himself is a drunkard and has been drinking along with another individual. Such evidence would perhaps be open to adverse criticism that the testimony of a person who is himself a gambler and a drunkard should not inspire much confidence. In a case like the present, evidently, the wife is the best person to inform the Court as to whether or not her husband has been indulging in such vices as drinking and gambling and her statement should not be unceremoniously and arbitrarily brushed aside, but should be considered judiciously on its merits. If the Court on a consideration of all the relevant attending circumstanc"s considers it to be untrustworthy or tainted with some suspicion of falsehood it should be rejected, but if it is free from such infirmities, it deserves to be given due weight. And then, where a woman has stayed for nearly 115 years with her husband without any blemish and has also borne children to him, unless there is some convincing reason to discredit her deposition, one should net lightly discard her sworn testimony in this regard. Motive for telling lies should be suggested which would appeal to the Court. But be that as it may, in this case, it 15 unnecessary to go into the allegation of Sohan Lal being given to gambling or to drinking and I propose to decide the case on other grounds.

(3.) The application was made in the Guardiou Court by Sohan Lal on 25th July, 1964 under section 25 of the Guardians and Wards Act and it was pleaded that Smt. Ram Piari had left the house of her husband without any reasonable cause and after a few days, had also taken away the minor children. Section 25 of the Guardians and Wards Act, so far as relevant for our present purpose, provides that: -