SHAILAJA JAYANT ERRAM Vs. JAYANT VASANT ERRAM

JUDGEMENT

(1.) Appellant who is the mother of the child ajitesh has preferred this appeal against the order of the learned Judge, family Court, Pune, disposing of her Petition claiming permanent custody of the child Ajitesh. By his order the learned Judge of the Family Court, pune, while disallowing her claim for permanent custody has directed the respondent who is the father of the child to restore the child during the two periods of annual vacation of the school in which the child is reading to the Petitioner. The learned Judge of the Court below has further directed that the Petitioner would be given right to visit the child to the house of the Respondent on every Sunday.

(2.) At the time of the hearing of the appeal, Mr. Shivade the learned counsel appearing on behalf of the Appellant, urged that Section 6 of the hindu Minority and Guardianship Act, 1956 is ultra vires as the said provision without any intelligible basis purports to adversely treat the mother of a Hindu child in the matter of guardianship. In our view, there is no substance in this plea of ultra vires raised by the Appellant. Section 6 (a) does not disqualify mother, but in order of preference in respect of legitimate child, the father and then the mother is the natural guardian ; while under Section 6 (b) in case of illegitimate child the mother and then the father is the natural guardian. It may be pointed out that even before the enactment of the Hindu Minority and Guardianship Act under the hindu law, in case of a legitimate child the same state of law prevailed. Reference may be made to Section 19 (b) of the Guardians and Wards Act, 1890, which recognises the prior claim of the father of a minor by providing that when a father of the minor is living and is not, in the opinion of the court, unfit to be guardian of the person of the minor, no guardian is to be appointed by the Court. Having regard to the state of the society in which we live and the traditional ideas about the status of the husband and a wife, we find that there was nothing arbitrary in providing under Section 6 (a) that the father then the mother would be the natural guardian of the legitimate Hindu child. For the foregoing reasons, we can not give any countenance to the submission that, the provisions of Section 6 under the hindu Minority and Guardianship Act is ultra vires.

(3.) There is no merit in this appeal. Although the application filed by the Appellant in the Family Court did not contain any prayer for removal of the father of the child from the natural guardianship and for appointing her as the guardian ; the Court below had ignored the said defects and has considered on merits as to whether it would be in the interest of the child to appoint the mother instead of the father as the guardian of the child. The learned Judge of the Court below had mentioned that because of the absence of the Respondent's lawyer he had refused to participate in the proceedings and did not cross-examine the Appellant. We have carefully perused the evidence adduced by the Appellant. We find that she had no where alleged that the father of the child i. e. Respondent had become disqualified to be the guardian, or that it would be for the welfare of the child to remove him from the natural guardianship of the child. We entirely agree with the assessment of the evidence made by the learned Judge of the Court below. Therefore, it is unnecessary to set out in extenso the evidence adduced in the case. The Court below has rightly observed that during the day hours the aged parents of the respondent father remained at home and there is no evidence that either they were incapable or otherwise disqualified from taking care of the child. In fact, the Appellant herself is a working woman and we are told that she works as Speech Therapist in a clinic where she has to remain upto 4. 00 p. m. in the afternoon. The Court below has also taken notice of the fact that according to the Respondent the Petitioner had been suffering from schizophienia and she was required to be treated in a mental hospital. This aspect therefore could not be left out of consideration. The Court below has also rightly observed that the report from the school did not indicate that the child's studies were being neglected. The Court below has also ascertained the wishes of the child. According the observations recorded by the Court below the child appear to be intelligent and gave rational information. He had stated before the Court below that his grandmother looked after him and he expressed his wish that he did not like to stay with the mother permanently. In fact, the child had spoken well of both his father and mother. For the foregoing reasons, there is no ground for interfering with the order made by the Court below under which the child has been allowed to spend two of the annual school vacations with the Appellant mother in addition to giving access to her at the respondent's house every Sunday. We make it clear that though we are not interferring with the order appealed against, it will be open, if, circumstances so warrant, for both parties to approach the Family Court for further directions which may be necessary in the interest and welfare of the child in the matter of custody of the child during other annual school vacations and also regarding weekly access of the mother to the child inducing the frequency of her visits.