RAVISHANKAR Vs. UMA TIWARI

JUDGEMENT

(1.) BEING dissatisfied by the order dated 21. 8. 1995 passed in Case No. 9/93 (Guardian and Wards) by the learned First Additional District Judge, Jabalpur, whereunder the petitioner's application filed under Section 10 of the Guardian and Wards Act, has been rejected, the appellant has preferred this appeal under Section 47 of the Act.

(2.) MR. Gupta, learned Counsel for the appellant submits that the Court below was not justified in observing that the father was not entitled to the custody of the minor. According to him, after the minor had attained the age of six years, the father would be the natural guardian and would be entitled to the custody. He submits that the mother has no independent source of income, therefore, the appellant who is father can look after the welfare and interest of the minor properly and custody ought to have been given to the appellant. On the other hand, Mr. Verma, learned Counsel for the respondent submits that the husband and wife are living separately since 1984 and in the last 13 years, the husband has never cared to look after the interest of the minor nor has taken any care for the betterment or upkeep of the minor. He also submits that in 125 proceedings, an order was passed in favour of the said minor but the father who claims to be the guardian for all practical purposes did not show that such love and affection towards the minor and refused to pay the amount of Rs. 250/- per month awarded by the Criminal Court under Section 125, Criminal Procedure Code. He also submits that the said minor Urvashi Tiwari was examined in the Court and she had clearly stated that she was happy with the mother and wanted to live in the custody of the mother, therefore, also the father is not entitled to the custody. I have heard the parties at length.

(3.) IN a case where the father claims custody of a minor, he must show from his conduct, not from the words only, that he is interested in the betterment and upkeep of the minor. In case of a minor girl, emphasis would not only be on the custody but the person claiming custody must satisfy the judicial conscience of the Court that the person who claims custody would look after the interest of the minor properly which is ordinarily of paramount consideration. In the present case, the father by his conduct has failed to show that if the minor is given in his custody, he would look after the minor properly. The conduct of the father does not entitle him to the custody because in the last 13 years since separation between the husband and the wife, he has not taken any care of the minor. He has not paid anything as admitted before this Court. He has not looked after the minor at all. If that is so, the father is well placed in life, cannot merely on the foundation of money claim custody of the minor. Money may be important in life but it would certainly lose its priority in comparison to the interest of the minor. If the minor being of understandable age states before the Court that he does not wish to live in the custody of the father, then the Court has to consider the option of the minor also. Considering the totality of the circumstances and the evidence which has been brought on record, this Court is of the opinion that the father has failed to make out a case in his favour to get the custody of the minor. It is expected of the father, though these are hopes against hopes, that he would pay some money to the minor.