LUXMI SHARMA Vs. PREM MOHAN SHARMA

JUDGEMENT

(1.) HEARD learned counsel for the appellant. This is an appeal by the wife against the order of the court below whereby the husband's application for custody of the minor son has been rejected but he has been permitted to keep the son with him during vacations in the month of May and June every year. It is not disputed that both the mother and father are living separately and there has been decree of divorce between them which is under appeal in the High Court. The son is aged about 9 years and is living with the mother for the last 5 years. The argument of learned counsel for the appellant is that the permission given by the court below to the husband to keep the minor son with him in May and June every year is not in the interest of the minor and would affect his studies adversely. The submission is not tenable under law. Section 8 of the Hindu Minority and Guardianship Act, 1956 provides for the father to be the natural guardian of a minor boy and after him the mother but in a give circumstances the mother can act as a natural guardian even when father is alive. However, for the purposes of custody as per Section 13 of the Act the paramount consideration is the welfare of the child. The court below has opined that in the instant case the welfare of the boy is with the mother. No fault can be attributed to this particularly, when this aspect is not under challenge by the side of the husband. Nonetheless, as father is the natural guardian and there appears to be no serious allegation against his conduct, he can not be deprived of meeting or living with his son for some time during the year without disturbing his studies as has also been provided by the Apex Court in the case of Smt. Manju Tewari Vs. Dr. Rajendra Tewari AIR 1990 SC 1156. Thus, the order of the court below permitting the father to live with his son during the months of May and June every year cannot be faulted with. Accordingly, the appeal has no merits and is liable to be dismissed. However, it is clarified that the permission granted does not mean that the father is entitle to keep and live with the son for the whole of May and June every year. It is only during the vacations in the above period that he can do so otherwise that may disturb the education of the child. Appeal is dismissed summarily with the above observation/clarification. No order as to costs.