GIAN CHAND Vs. SUDHA

JUDGEMENT

(1.) Appellant Gian Chand was married to respondent No. 1 Sudha. Respondent No. 2 Des Raj is father of respondent No. 1. Appellant had filed a petition under the Guardian and Wards Act (hereinafter referred to as the Act) for the custody of Rajiv Kumar, who is the son of the appellant and respondent No. 1. It may be mentioned that appellant and respondent No. 1 were divorced by decree under Section 13 of the Hindu Marriage Act in short HMA) on 12-12-1984. The petition for custody of the minor was dismissed and hence this appeal is filed by the appellant against the said order. It may also be mentioned that a minor was born out of the wed-lock of the appellant and respondent No. 1 on 5-2-1983. The lower Court held that the appellant is not interested in custody of the minor. Various reasons have been given by the lower Court in dismissing the application.

(2.) I have heard the learned counsel for the parties. It is an admitted fact that respondent No. 1 has re-married after the divorce with appellant. It is the case of the appellant that husband of respondent No. 1 Mr. Kamal Khanna is working at Amritsar and that respondent No. 1 is also staying at Amritsar and has nothing to do with the welfare of the minor . He has also tried to show the place of residence by service of the summons which is at page 107 of the lower Court record and it is served on respondent No. 1 at Amritsar. He has produced a copy of the translated version of the same at Ex. A1 in the same appeal. Counsel for respondent No. 1 argued that summons were served when she had gone to Amritsar during vacations. The question is not merely of physical possession. It is a question of guardianship and if the minor is being looked after under the instructions/supervision of the mother then even though he may not be in the physical custody of the mother, he cannot be said to be not under the guardianship of the mother. Of course, this is not the only reason for not accepting the arguments of the learned counsel for the appellant. In a given case, such a reason may assume importance but in view of the further discussion regarding the age of the minor, this question has become academic.

(3.) Counsel for the appellant argued that appellant has been non suited on the following grounds, viz. :-