SARLA SHYAMASUNDER PUROHIT SMT Vs. ANANDRAI HARISHANKER TRIVEDI

JUDGEMENT

(1.) An out-dated 12th century approach has been made in a proceeding under the Guardians And Wards Act in relation to the custody of a child and the question that has been placed in the focus by the trial Court is as to who has a preferential right to the custody of the child the father or the mother rather than the real question as to the welfare of the child. Instead of posing the question what is in the interest of the child and whether the welfare of the child which is the paramount consideration in such matters demands that the custody should be with the mother or the father the learned trial Judge has concentrated and laid stress on the question as to who is entitled to the preferential custody and as to who is at fault in the matrimonial dispute between the parents.

(2.) The dispute relates to the custody of a male child who was about six years of age when the application for custody giving rise to the present appeal was instituted in 1970. The child Subodh was born on February 14 1964 It appears that the father of the child who was at the material time in Uganda made an application through his sister claiming custody of the child. It is not necessary to refer to the grounds mentioned in the petition for custody for ultimately what matters are the grounds made out in the course of the evidence. The evidence on the part of the father consists of the testimony of his sister. No other evidence has been adduced. He himself has not come over to India to give evidence; nor has he applied for his evidence being recorded on commission. It has been stated at the Bar that subsequently the father has migrated to United Kingdom and is at present in U.K. On behalf of the mother she has examined herself as a witness

(3.) From the evidence of A. W. I. Kokilaben the sister of the father it appears that the only ground which is made out by her is that the mother has no independent source of income and that she is being maint- ained either by her father or by her brother. According to her the minor is not getting education in an atmosphere and society in which he was brought up in Africa (when the minor came over from Africa along with his mother he was only five years old). Her evidence on the point may be quoted for the sake of preciseness: