LEKH RAJ KUKREJA Vs. RAYMON

JUDGEMENT

(1.) By this order, pro pose to dispose of Civil .Revision Petition Nos. 121 of 1989 and 136 of 1989 filed by Lekh Raj Kukreja and Mrs. Raymon Kukreja respectively challenging the order dated 19th January, 1989 passed by Ms. Usha Mehra, Additional District Judge, Delhi under section 12 of the Guardians and Wards Act. 1890 (hereinafter called 'the Act').

(2.) Facts giving rise to these revision petitions are that Lekh Raj Kukreja, petitioner-husband and Mrs. Raymon, respondent- wife were married way back in April, 1977 and thereafter they had three children of their wedlock, son Gaurav, being the eldest of three and other two being daughters. One of daughters was given in adoption to other sister of Mrs. Raymon. It appears from the statement of the counsel for the parties that some Habeas Corpus petition was filed in respect of daughter Neha and son Gaurav, which was disposed of vide orders dated 10th August, 1988 by a Division Bench of this court. In the said Criminal Writ Petition No. 350 of 1988 it was agreed between the parties that "the custody of Ms. Neha, who is aged about 5 years will continue to be with her mother, Mrs. Raymon Kukreja. Shri Lekh Raj Kukreja will have right to visit the daughter. The son of the parties, Master Gaurav, who is a student of Convent of Jesus & Mary, Hampton Court Mussoorie will be sent to that school on its re-opening so as to continue his studies. Both Shri Lekha Raj and Mrs. Raymon Kukreja will be free to visit him at Mussoorie in accordance with the rules of the school. They undertake not to remove their son from that school till orders from the appropriate court are obtained." On the basis of this arrangement between the parties the said writ petition was disposed of. Apart therefrom a petition under Section 7 read with section 25 of the Act is stated to have been filed by the husband Lekh Raj Kukreja on 13th September, 1988 which was pending in the court of Ms. Usha Mehra, Additional District Judge, Delhi. Alongwith that petition an application under section 12 of the Act had also been moved in which notice had been issued. It so transpired that the school was closing for winter vacations for a period of 3-1/2 months with effect from 18th November, 1988 and both the parties are stated to have gone to the school authorities and claimed custody of the child during vacation period. The custody of the child was given to the husband Lekh Raj Kukreja. Thereafter another petition under Section 12 of the Act was filed by Lekh Raj Kukreja before Ms. Usha Mehra, Additional District Judge, Delhi in which notice was ordered to be issued. Against that order of notice C.M. (M) under Article 227 of the Constitution of India was filed which was disposed of vide my orders dated 19th January, 1989 with the directions that as per agreement between counsel for the parties the question of custody and right of respondent to take Gaurav with her for the period of vacations may be left to be determined by the lower court and accordingly the parties appeared before the lower court and the impugned order was passed after hearing the counsel For the parties.

(3.) I have been taken through the order of the lower Court, The submission of the learned counsel for the husband is that father is the natural guardian of the child Gaurav, he being the male child of about 11 years of age, and as such he was entitled to the custody thereof. It is also alleged that wife is living in adultery and as such net fit to be handed over the custody of the son. As against this it is submitted by the learned counsel for the respondent-wife that for purposes of disposal of section 12 application it is the interest of the minor which has. to be supreme rather than the alleged legal right as natural guardian of the father. It has further been submitted that because of the conduct of the father he is not entitled to the custody of the child altogether more so, because he is Afghan nations). It is also submitted that the father has obtained the custody of the child from school authorities in violation of the orders and undertaking incorporated in order dated 10th August, 1988 of the Division Bench. It is not necessary to go into the question as to whether orders dated 10th August, 1988 have been violated by the father, more so, in view of the fact that the learned counsel for the petitioner-husband has drawn my attention to a certificate issued by the hostel Superintendent of St. Zavier Hostel of the school of Master Gaurav which shows that the wife had also agreed to the child being taken by the father as the boy had insisted upon going with the father, although of course, the correctness of this statement of fact in the certificate is disputed by the learned counsel for the wife. From the perusal of order of learned Additional District Judge, I find that she has rightly held that it was not possible for her to go into the allegations and counter-allegations with regard to characters of both husband and wife at that stage and that she has primarily considered the welfare of the child while disposing of the application under Section 12 of the Act.