CHANDER PRABHA Vs. PREM NATH KAPUR

JUDGEMENT

(1.) Inder Dev Dua C.J.-The appellant in this appeal assails the order dated 7-9-1968 made by a learned Subordinate Judge 1st Class, Delhi, dismissing her application under section 26 of the Hindu Marriage Act for the custody of her minor male child below five years of age, the application having been made in the course of the proceedings for judicial separation initiated by her under section 10 of the said Act.

(2.) The Court below has observed in the impugned order that there is nothing on the record to show that the father has not been properly maintaining and keeping the child and that the bare affidavit filed by the wife is insufficient to establish the contrary. The Court emphasised the fact that when the child was brought to the Court and was questioned as to whether he was happy with his father, he replied in the affirmative, and from the face of the child, the Court got the impression that he was quite happy with his father. The Court also asked the wife to go back to her husband at least for the sake of her child and after giving a trial, if she still felt that it was not safe for her to live with her husband. she could come away from her husband's house and continue the present proceedings. The wife apparently did not agree to this suggestion which also seems to an extent to have induced the Court to give the decision against her. Finally, the Court has observed that the husband is living with his mother who can very well look after the minor child. The argument based on the age of the minor was disposed of by the Court below with the observations :-

(3.) The approach of the learned Subordinate Judge is obviously wrong, being opposed to the settled legal position and he seems to have missed the real point which demands consideration in such cases. The Hindu Minority and Guardianship Act No. 32 of 1956, designed to amend and codify certain parts of the law relating to minority and guardianship among Hindus, which, in case of inconsistency, overides all other laws, is otherwise supplemental to the Guardians and Wards Act No. 8 of 1890 and its provisions must prima fade govern the present case. Section 6 of this Act, which reads as under-