CHHOTIBAI Vs. SUNITA KUSHWAH

JUDGEMENT

(1.) IN this appeal preferred under Section 19 of the Family Courts Act, 1984 the defensibility of the order dated 19-12-2007 passed by Principal Judge, Family court, Gwalior in Case No. 7/07 registered under the Guardian and Wards Act, 1890 (for short 'the Act') is called in question.

(2.) THE facts which are necessitous to be exposited for adjudication of the appeal are that the appellant, Smt. Chhotibai Kushwah, preferred an application under Section 8 of the Act before the Family Court, forming the subject-matter of Case No. 6/2007 pleading, inter alia, that Ku. Komal Kushwah, aged about 3 years, has been residing with her for the last two years and has an inseggregable emotional bond with her. On 18-7-2004 the father of Ku. Komal kushwah expired due to incurable ailment. Before his death Jagesh Kushwah, son of the appellant, had executed a will in favour of his mother and bequeathed all movable and immovable properties. The said will was executed, as set forth, as he had no faith on his wife, the respondent herein. There is an expression of desire in the will that the present appellant would look after and take care of Ku. Komal as his wife, the respondent herein, has been residing in her parental house at Harkota Samadhiya Colony, Gwalior and had no emotional attachment for the minor child. It was asserted in the application filed before the Family Court that the respondent had left the husband knowing fully well that he was suffering from severe ailment and after 1 1/2 years of suffering jagesh breathed his last. After the death of Jagesh she did not come back to her matrimonial home even to attend the rituals of her husband. It was contended that she is habituated to lead an independent life and had no concern for the minor child and, in fact, she is desirous to enter into a second wedlock. It was put forth that the appellant had been looking after the minor child, Komal, in a most effective and affectionate manner and hence, she is entitled to her custody. It was alleged that the respondent/non-applicant, was desirous for taking custody of the minor child only to grab the property and misuse the same. It was also alleged that the mother-respondent had been leading an unchaste life. On the aforesaid foundation a prayer was made to declare her as guardian ad litem of the minor child.

(3.) THE aforesaid stand and stance of the appellant was vehemently resisted by the wife disputing all the allegations. It was contended that no will at any point of time was executed by her husband and only after his death the will has been fabricated. It is submitted that a civil suit was pending in the Court of fifth Additional District Judge, Gwalior. It was highlighted that she was capable of looking after and bringing up of the child and she had no intention to enter into the second marriage. Allegations with regard to her character and chastity was seriously disputed. It was also alleged that during the life time of the husband the appellant as well as her husband demanded dowry from her and accordingly and FIR was lodged on 14-5-2004 at Mahila Thana, Hujrat Kotwali and eventually a compromise was entered into between her and husband at Mahila paramarsh Kendra. It was the case of the respondent before the Family Court that as she was not keeping in good health she had stayed with her parents for six months for proper treatment and thereafter she came to her matrimonial home and lived with her husband. Her husband passed away on 18-4-2004 but no intimation was sent to her. On receipt of the information of death of her husband from others she had come to her matrimonial home next day and participated in the ritual.