ASHOK GUPTA Vs. SUPERINTENDENT CENTRAL JAIL TIHAR

JUDGEMENT

(1.) This appellant, Narinder Kaur, has come up in this appeal against the order dated 26.9.86 of the Guardian Judge whereby he reviewed his earlier order dated 18.8.86. In the First order the Guardian Judge had granted interim custody of the minor child to the appellant but subsequently he reviewed that order and allowed the custody of the minor to remain with the respondent father.

(2.) The parties were married on 17.11.1982, A male child was born to the parties on 13.8.1983. He is named Gurmit @ Sonu, The provisions of the Hindu Minority and Guardianship Act, 1956 (for short 1956 Act) apply in the present case. The mother (appellant herein) filed a petition under Section 25 of Guardians and Wards Act, 1890 (for short the Act) seeking custody of the child Sonu. This petition was filed on or about 4.4.1986. In this the mother filed an application seeking interim custody of the child.

(3.) Earlier also a petition under Section 25 of the Act was filed by the mother. This was on 17.9 84. There also an application seeking interim custody of the child was filed. The then Guardian Judge Mrs. Kanwalinder. by order dated 301.1985 granted interim custody of the child to the mother. A civil revision against that order filed by the father was dismissed by the this Court on 7.2.1985 (CR 147/85). It was contended in the first petition that the mother was forced to leave her matrimonial home in August 1984 when the child was hardly one year old. In spite of the order dated 30.1.1985 and dismissal of the civil revision of that the custody of the child was not handed over to the mother and it appears that the parties arrived at a compromise and agreed to live together though separately from the parents of the respondent father. Now it was contended that against the mother was subjected to cruelty by her husband and his parents and other in laws. She was assaulted and humiliated with the result she was made to leave the house in March 1986. Immediately thereafter the present petition under Section 25 of the Act was filed claiming custody of the minor child. In the first order dated 18.8.1986 on the application for interim custody the learned Guardian Judge/Held that the child was below five years of age and required caressing hand and affectionate company of the mother more than that of the father He also referred to the earlier order dated 30.1.1985 of Mrs. Kanwalinder, the then Guardian Judge. Reliance was also placed on a Division Bench decision of this Court in Smt. Chandra Prabha v. Prem Nath Kapur, AIR 1969 Delhi 283. The Guardian Judge therefore directed that during the pendency of the petition under Section 25 of the Act the custody of the minor child be handed over to the mother. He also gave directions for the father to meet the child on certain dates and fixed the time as well for the purpose. This order was reviewed by the impugned order dated 26.9.86 whereby the learned Guardian Judge held that the custody of the minor child be kept with the father. In pursuance to the earlier order of 18.8.86 the custody of the child was not handed over to the mother and instead an application for review was filed which led to the passing of the impugned order. The learned Judge observed that certain relevant facts were not brought to his notice when he passed the first order. He held that in the absence of any rejoinder being filed by the mother to the reply of the husband controverting the allegations made by the husband it had to be held that there was no sufficient accommodation with the parents of the mother with whom she was living and also that the mother did not feed the child on her breast. The Guardian Judge was, therefore, of the view that it would not be congenial for the child to be kept with the mother in that atmosphere. He held that the mother did not controvert the allegation of the father in the pleading that the child had always been with the father since his birth and further that the mother had no source of income and that she was thriving on the charity of her parents. These facts were held to be sufficient for the learned Guardian Judge to review the earliar order and he said that in doing so he exercised powers under Order 47 read with Section 1 14 and Section 151 of the Code of Civil Procedure.