MAJOR GURMIT SINGH Vs. HARVEEN WALIA

JUDGEMENT

(1.) These two F.A.O. Nos. 253 and 336 of 1978 will be disposed of by this single order as both these appeals arise out of the same judgment of the Senior Sub-Judge, Chandigarh.

(2.) The parties are husband and wife. The controversy is regarding the guardianship of the minor child Manmeet Singh alias Sonu. The parties come from respectable families. The husband is Major in the army. The aforesaid male child was born to Shrimati Harveen Walia from the loins of Major Gurmect Singh on 14th September, 1968. Manohar Singh, father of the respondent, is living in house No. 1006, Sector 8-C, Chandigarh, and Manmeet Singh alias Sonu is residing with him.

(3.) The marriage between the parties was dissolved. Thereafter the wife brought the petition under Section 7 of the Guardian and Wards Act, 1890, read with Sections 6 and 13 of the Minority and Guardianship Act, 1955, for the appointment of guardian and for custody of Manmeet Singh minor under Section 25 of the Guardian and Wards Act. This application was resisted by husband Major Gurmeet Singh. Preliminary objection was raised that under Section 6 of the Minority and Guardianship Act, 1956, in case of a minor boy and his property, his natural guardian is his father and after him his mother and that the custody of the minor who has not completed the age of five years shall have to be ordinarily with the mother, but Sonu being over nine years old his custody shall rest with his father and as such the petition is not maintainable. It had also been pleaded that in view of the wish of Sonu minor before Hon'ble Mr. Justice Prem Chand Jain and in view of the order passed by his Lordship in civil revision No 1748 of 1977 on 17th November, 1977, the petition has become in fructuous. On merits it was pleaded that since the mother hail deserted her husband in March, 1972 and since February, 1973 she has been living in U.S.A. She remained in India only for 11 months before going to abroad and during that whole period she had neither cared nor expressed any desire to see the child (Sonu-minor) nor she applied for his custody. Further it was pleaded that from February, 1973 to August, 1971 she lived in U.S.A. and returned to India on 15th August, 1977 and that she had got no love and affection for Sonu minor. Similarly, Sonu was also not even ready to recognise her and he refused to see her and even to recognise her on 17th November, 1977 before this Court. The husband - respondent has remarried Smt. Jatinder Kaur, who is widow and she has got seven years old daughter from her late husband. It was pleaded that the husband had brought up Sonu minor with extreme love and affection and is continuing to do So. Sonu and his step mother are very fond of each other and the natural love is growing in between them. Smt. Jatinder Kaur, is a very talented young lady, who has had her complete schooling in Auckland House School, Simla and St. Bedes College, Simla, and she is a daughter of a Major General in the Army. Both the step-mother and the minor have developed love and affection for each other and at present the child is studying in Sanawar School.