MANJULA Vs. HIMANSU PRAKASH BORAL

JUDGEMENT

(1.) The 1st petitioner is the mother of two minor children Bhagwan alias Bhruguraj and Nandraj. The 2nd petitioner is the brother of the 1st petitioner. The 1st petitioner Manjula was married to Dilip Jyotiprakash Boral on 7th July, 1974. Out of this marriage a son Bhagwan alias Bhruguraj born on 5th December, 1975 and another son Nandraj was born on 7th April, 1977. Since 1978 there have been disputes and differences between the 1st petitioner and her husband Dilip Jyotiprakash Boral. This resulted in criminal proceedings being taken by the husband against the 1st petitioner and a matrimonial petition being Petition No. 793 of 1978 being filed by the husband of the 1st petitioner against her in the City Civil Court at Bombay on the ground of adultery. The 1st petitioner had, in the same year 1978, filed a petition for guardianship for her minor children in this High Court, being Misc. Petition No. 556 of 1978. Thereafter she also filed a petition for dissolution of her marriage being M. J. Petition No. 306 of 1981 in which petition she cited Chandrika, the 2nd respondent herein, as a co-respondent. Ultimately consent terms were arrived at between the parties and a consent decree was taken on 24th April, 1981. Under the consent decree the marriage between the 1st petitioner and her husband was dissolved, and the custody of the elder child Bhagwan was given to the husband of the 1st petitioner while the custody of the younger child Nandraj was given to the 1st petitioner. Both the parties agreed that they would not demand at any time custody of the child which was given to the other party. In fact, since 1978 the custody of the elder child Bhagwan had been with the husband of the 1st petitioner while the custody of the 2nd child was with the 1st petitioner and this petition was accepted by both the parties under the said consent decree. Immediately after the consent decree was passed, the 1st petitioner applied for a passport and she thereafter left India. It seems that she applied for a passport in the name of MENKA NAREN NATHWANI and she mentioned in the passport application that she had been married to Naren Mathuradas Nathwani on 10-7-1976. From 1981 till 1983 the 1st petitioner remained outside India and she has been living with Naren Nathwani in U.K. During this period, the minor Nandraj remained in Bombay with the 2nd petitioner who is the brother of the 1st petitioner and the mother of the petitioners and he has been looked after by them. Some time in 1983 the 1st petitioner returned to Bombay where she has admittedly given birth to a baby girl. According to the 1st petitioner this is a daughter born to her out of her relationship with Naren Mathuradas Nathwani.

(2.) After the consent terms were arrived at between the parties and even prior thereto from the year 1978 the elder child Bhagwan was in the custody of Dilip Jyotiprakash Boral. The 2nd respondent, Chandrika, was engaged as a governess by Dilip Boral to look after the minor Bhagwan and it is the case of the 2nd respondent that she has throughout looked after the minor Bhagwan. She claims that under a Will dated 16th December, 1982 made by Dilip Boral she has been appointed as a testamentary guardian of the person and property of the minor Bhagwan. Under the said Will Dilip Boral has left all his properties to the minor Bhagwan. According to the 2nd respondent on 25th December, 1982 Dilip Boral and she were married at Calcutta. Thus she also claims to be the step mother of the minor Bhagwan. Dilip Boral was suffering from heart trouble and he died suddenly on 15th May, 1983 The petitioners have thereafter filed the present petition for being appointed as the guardian of the minor Bhagwan alias Bhruguraj and also for being appointed as the guardians of the property of the minors Bhagwan alias Bhruguraj and Nandraj. The two minors would have a share in the properties left by their deceased father. Even under the so called Will of the deceased father, at least one of the minors Bhagwan alias Bhruguraj inherits the entire property of his deceased father. Hence the petitioners have prayed for guardianship of the person of Bhagwan as well as properties of both the said minors.

(3.) This petition is being opposed by the 2nd respondent Chandrika. She has staked her claim to the guardianship of the minor Bhagwan on these grounds :