HARBANS LAL Vs. SHEELA DEVI

JUDGEMENT

(1.) This appeal has been filed by Harbans Lal husband, against the order of the Guardian Court, Amritsar, dated October 3, 1979, by which the application of Shrimati Sheela Devi, his wife, under Section 25 of the Guardians & Wards Act (hereinafter referred to as the Act) has been accepted.

(2.) Briefly, the facts of the case are that the parties were married in December, 1974. A male child named Surinder was born to Sheela Devi on January 7, 1976. The husband is employed as a Sepoy in the Army and is posted in Siliguri while the wife is working in Civil Hospital, Ferozepur. The wife filed an application under section 25 of the Act inter alia stating that her husband had removed the child from her custody from Amritsar on June 9, 1978. It is further said that she being the mother of the child was entitled to his custody and that it was in the welfare of the minor that he should remain in her custody. The application was contested by the husband who inter alia pleaded that the wife had not been properly maintaining the child and that it was in his welfare to remain in the custody of the father. Certain other objections were taken which do not survive in this appeal. The learned Guardian Judge came to the conclusion that it was in the welfare of the minor that he remains with the mother. Consequently, he allowed the application and directed that the custody of the child be given to her. The husband has come up in appeal against that order to this Court.

(3.) It is contended by the learned counsel for the appellant that the wife has been threatening the husband that in case he did not leave the service she would kill herself and the child. He further states that the child is being educated in Good Shepherd School, Baghdogra near Siliguri and he is being looked after by the father and grand-father. According to him it is in the welfare of the minor if he remains with the father. On the other hand, the learned counsel for the wife has vehemently argued that the child was taken by the husband about two years back and that tinder the Hindu Minority and Guardianship Act, the mother is entitled to the custody of the child in preference to the father till he attains the age of 5 years.