MUNNIBAI Vs. DHANUSH

JUDGEMENT

(1.) THIS appeal arises out of the proceedings started by the present appellant under the Guardians and Wards Act (VIII of 1890) for being appointed as the guardian of her minor daughter Benibai, and for getting custody of the child. The appellant and the respondent were married before 1952 and the minor Benibai was born to them on 26th September 1952. It seems that disagreement arose between the married couple and it would appear that a criminal case was filed against the husband. Ultimately there was a compromise and on 27th April 1955 there was an agreement between the parties granting divorce to the wife according to caste custom and a term of that compromise appears to be that the appellant was to hand over the custody of her daughter to the respondent Dhanush, her husband and accordingly the respondent got the custody of the child. Soon after this divorce, it appears that the respondent married again and on 27th June 1955, the present application was filed by the appellant for appointment of herself as the guardian of the minor daughter and for getting custody of the child. The principal ground on which the application was made was that the child was of a very tender age and wanted the mother's affection and rearing, and since the respondent had married again, there was every likelihood of the child being ill-treated by the husband and the step-mother. The application was resisted by the husband who set out in the written statement the circumstances under which the divorce came to be effected, and it is admitted that he was not pre pared to give the wife divorce unless his daughter was given to him. He denied that the minor was being ill-treated or was likely to be ill-treated and he stated that she was being brought up with the greatest care, love and affection and he affirmed that the general state of the minor had improved. He stated that the apprehensions of the applicant that the minor was likely to be neglected were imaginary and baseless. He also stated that the applicant was dependent on her father and was likely to marry again in the near future, and there fore, it was desirable that the minor should re main with the non-applicant, he being her natural guardian. He denied that there was any pressure on the applicant when she handed over the custody of the child to him. He, therefore, prayed that the application should be dismissed with costs. The trial Court came to the conclusion that it was not in the interests of the minor to appoint the applicant as guardian of the person of the minor, be cause it held that the husband was not unfit to act as the guardian of the minor. The trial Court came to the conclusion that the non-applicant had married another wife, but that was no ground that Benibai would be neglected. The trial Court also relied, upon the fact that the husband demanded back the minor when giving divorce which, according to it, showed his love for the child. On these grounds, the application of the appellant was dismissed.

(2.) NOW, in this appeal Mr. C. S. Dhanmdhikari, the learned counsel appearing on behalf of the appellant has taken me through the relevant record of the case, since unfortunately the respondent is not represented by any counsel. Mr. Dharmadhikari contends that the learned Judge has taken a very narrow view of the evidence and has refused to accede to the request of the appellant for being given the custody of her child on 'he ground that the natural guardian, the father, was not an unfit person to act as the guardian, and Mr. Dharmadhikari naturally contends that this is not the proper test in considering applications the Guardians and Wards Act. Under Hindu Law, the father would be the natural guardian: but in considering the question as to whether the father should have the custody of the child or the mother when the two are separated, the Court has to consider primarily the interests of the minor and in arriving at a decision the Court has to take into consideration all the circumstances of the case, and the circumstance that the father has married again would, in my opinion, be a relevant circum stance which must be given its due weight by the Court. It is true that when the parties separated by mutual agreement according to caste custom on 27th April 1955, the applicant consented to the custody of the child being taken by the father. But the applicant has stated in her evidence that she was very unhappy at her husband's place and as the husband would only grant her divorce in care she gave up her claim to the daughter, in order to relieve herself from her unhappiness, she gave her daughter to the husband and took the divorce. She further stated that as her daughter was of a very tender age, she would be able to bring her up better and her parents would help her in doing so, and her evidence indicates that as the respondent has remarried, the minor daughter would be brought up in a better atmosphere if the mother got the custody of the child. The appellant also categorically stated that she did not wish to remarry. The appellant was examined in Court on 3rd December 1955 and stated that after she gave her daughter to the husband, she had no occasion to see her till the day she gave evidence. The appellant's father, who appears to be the proprietor of a motor repairs workshop at Durg stated that the minor was hand ed over to the husband because the latter agreed to give divorce on condition that the girl Benibai was given to him. The respondent also admitted that he agreed to give divorce provided the appellant gave up the custody of the child. According to him. in his house there are his mother, father, three brothers, two sisters and the second wife he married. His youngest brother appears to be aged 2 1/2 years. He stated that Benibai was being reared up and looked alter by himself and his second wife. He also asserted that the condition of Benibai was far better than what it was when she was brought from the mother. On the evidence, the learned trial Judge, as I have already stated, came to the conclusion that the respondent was not an unfit person to be the guardian of the child. But unfortunately he did not give proper weight to the circumstance that the husband has taken a second wife.

(3.) IN Bai Tara v. Mohanlal Lallubhai, 24 Bom LR 779 : (AIR 1922 Bom 405) the father applied for getting the custody of his minor son from his wife who had been living separate from him and had the custody of the boy. The father had mar riedagain and the boy was seven years old at the time when the father made the application. This Court, taking into consideration the fact that the father had married again, came to the conclusion that the seven-year-old boy would be much better off living with his mother than with his father. It was further observed, that "the step-mother cannot be expected to be very much interested in his welfare, and the uncles and any members of the prior generation who may be living in the house will also not be likely to give this small boy the attention and sympathy which he naturally requires. " In the present case also, according to the husband's deposition, though his father and mother are living separately from him, all the members of the family are living in one house and his youngest brother was aged 2 1/2 years only. In my view, in a large family like that of the respondent, the bringing up of Benibai is not likely to be well looked after, especially now that the husband has taken a second wife.