RAJENDRA KUMAR TEWARI Vs. USHA DEVI

JUDGEMENT

(1.) This appeal arises from proceeding under the Hindu Minority and Guardianship Act, 1956. The parties were married according to the rites under the Hindu Law. There has been divorce between them and the decree for divorce became final, admittedly, on March 25, 1981. The male child, namely, Rajesh Kumar, was born on Sept. 2, 1978. There is another male child of this wedlock, who has born on Nov. 4, 1980. Both, at present, are living with their mother. who is the respondent. The appellant made an application under Sec. 6 of the Act, aforementioned, for custody of the children being handed over to him. In so far as the younger child is concerned, counsel for the appellant does not press the application as at present. The issue remains confined in regard to the elder one, who is not nearly seven years of age. The appellant is Class IV employee in the Food Corporation of India at Jhansi and drawing nearly Rs. 800.00 per month. He has his mother to support and there is also a sister living with him, who has a male child. The respondent lives in Mohalla Matwana Kaswa Gursarai a town area of district Jhansi with her parents. Her father is an agriculturist. The respondent herself has received Basic Teaching Certificate (B. T. C.) training which makes her eligible to teaching job.

(2.) Learned counsel for the appellant contends that in view of Sec. 6(a) of the Act, the custody ordinarily is to be of the mother for so long as the child is not above the age of five years. Since the child has attained that age already, it is argued, the custody be restored to the father. It is urged also that better education facility may be available at Jhansi in comparison to the town-area where the mother resides. These considerations are not without weight, but then they cannot, by themselves, be taken as conclusive. There is no denying that the child still is in tender years and enjoying love and affection of his mother. He was produced before the court below, which observes that there was no inclination on his part to part with the company from the mother. The child is before this court and also on being questioned the inclination indicated by him is to continue to live with the mother. In so far as the education facility is concerned, it is pointed out that in the town where the respondent resides there is institution available at least upto Intermediate. As at present, the child is receiving education; he is a student of Class III already. Since the mother herself intends to take up the teaching profession, it may be safely assumed that she will be in position to take such care of the child, at present, as is ordinarily required. None of the parties is alleged to have remarried. There is no dispute as to the affluence of the parents of the respondent who may, therefore, be said to be easily in position to bear the expenses for the proper maintenance of the child. This does not in any manner, prevent the appellant from moving the court again for the custody of the child being passed-over to him say when the child mature enough to form a decision. In the event of any other development taking place during this period also, the appellant may move the Court again for the custody being passed-over to him. In the absence of any incapability appearing to exist in regard to the maintenance of the child by the mother as at present it does not appear to b;, expedient in the interest of the welfare of the minor that his custody be immediately directed to be handed over to the appellant.

(3.) For these reasons the appeal is dismissed. There will be no order as to costs. Appeal dismissed.