AVINASH DEVI Vs. KHAZAN SINGH ANEJA

JUDGEMENT

(1.) This appellant was married to the respondent in November, 1950. In January 1952 a daughter who was named Neeta was born to her. The respondent who is a medical practitioner was practicing in Delhi till May 1953. He then joined the service of the Himachal Pradesh Government and was posted at Dhami. The relations between the two spouses became quite strained, the apparent reason which is suggested being that the respondent started paying special attention to a hill girl of the name of Laj. It may be mentioned that the respondent actually married this girl at Simla in April 1954 and took her with him to Chini to which place he had been transferred. According to the learned District Judge the matter was kept a secret from the appellant who was informed of it by a letter in the month of June 1954. The respondent wrote to the appellant saying that he had remarried and asking her to remarry if she wanted to. The appellant had come away to Delhi an January 1954 along with her daughter Neeta and started living with the parents of the respondent. According to her she was not treated properly and was later on turned out. In January 1955 she found employment as a teacher in a local school. On 18-7-1956 a petition under S. 10 of the Hindu Marriage Act was instituted by the appellant for Judicial separation on various allegations which it is not necessary to mention.

(2.) The learned District Judge came to the conclusion that since the year 1953 the respondent had treated the appellant with what he called legal cruelty. He also found that she had been sent down to Delhi by the husband in January 1954 and had been deserted thereafter. A decree for judicial separation was, therefore, granted. He further made certain orders with regard to the maintenance of the appellant and the child as also about the custody of the child and the present appeal is directed mainly against that part of the order.

(3.) Mr. B. C. Misra, the learned counsel for the appellant contends that the order of the learned District Judge that the child should remain in the custody of the mother till she is about 7 years of age and thereafter it would be open to either party to seek the directions of the Court with regard to her custody was not a proper order in the circumstances of the case. It is submitted that the mother should have been given the custody of the child and no such limit should have been put with regard to the period during which the custody would remain with her. It is pointed out that actually in view of the order of the learned District Judge a petition is already pending in the District Court which has been filed by the respondent praying for custody of the child. The learned counsel for the respondent, however, contends that the father is the natural guardian of the child and according to the relevant provisions contained in the Hindu Minority and Guardianship Act, 1956, read with the Guardians and Wards Act, 1890, the custody of the child must be with the father. it is further submitted that even if the Court has a discretion in the matter, it will be more in the interest of the child if she stays with the father. Reliance has been placed by the learned counsel for the respondent on the provisions of S. 6 of the Act 1956 by which it is provided that the natural guardians of a Hindu minor, in respect of his person as well as his property, would be the father and after him the mother provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. There is also a proviso to the effect that no person shall be entitled to Act as the natural guadian of a minor if he has ceased to be a Hindu or if he has completely and finally renounced the world by becoming a hermit. As regards S. 13 it is contended that sub-section (1) which provides for the appointment or declaration of a guardian cannot relate to natural guadians because there is no question of appointment or declaration in there case. Sub-section (2), however, which lays down that no person shall be entitled to the guardianship by virtue of the provisions of the Act or of any law relating to guardianship in marriage among Hindus, if the Court is of opinion that his or her guardianship with not be for the welfare of the minor, is sought to be explained by the learned counsel for the respondent by saying that this has to be read in continuation of subsection (1) and refers to the appointment or declaration of any person as a guardian as mentioned in sub-section (1). It is further submitted that under S. 2 of the Act of 1956 its provisions are in addition to and not, save as otherwise expressly provided, in derogation of the Act of 1890. The provisions of the Act 1890 have thus to be looked at and it is urged that it is only S. 19 of the earlier Act which lays down that the father is not to be appointed a guardian if in the opinion of the Court he is unfit to Act as such. In other words, according to the learned counsel for the respondent the father if he is alive must be appointed a guardian and must be given the custody of the minor unless the Court finds that he is unfit in any manner to be a guardian or to be entitled to the minor's custody. The argument raised on behalf of the respondent is wholly devoid of force. In the first place what has to be considered in the present case is not so much what the provisions of the aforesaid enactment's are but S. 26 of the Hindu Marriage Act 1955. The jurisdiction which the District Court was exercising was under the Hindu Marriage Act and not under any other Act, and, therefore, the substantive provisions which has been looked at is S. 26 which runs as follows: