LAWS(P&H)-1990-11-2

MURTI DEVI Vs. HEM RAJ

Decided On November 19, 1990
MURTI DEVI Appellant
V/S
HEM RAJ Respondents

JUDGEMENT

(1.) HEM Raj sought custody of his minor son Jagsir Singh on the ground that he has landed property and sufficient source of income to bring up his son property, Jagsir Singh, minor, aged 12 years while in the custody of her mother was not sent to any school nor was educated, the mother does not have any source of income and thus the well being of the child lies in his custody being with the father.

(2.) THE Trial Court after observing that child had attained the age of 14 years and the father owned 8-9 kanals of land, his income is about 40-50 thousands per annum. Further the finding is that the welfare of the child lies in his custody being with his father and thus allowed the application. The order is challenged in this appeal. During the interlocutory proceedings, it was brought on record that the child has attained the age of 14 years, the father has not shown any concern for the welfare of the child. The child was stated to be mentally retarted and his interest and well being demands his custody with the mother, on account of his emotional attachment with her. On 3rd March, 1989, it was ordered that father would deposit Rs. 5,000 in the Court/to get the child examined medically in the Post Graduate Institute of Medical Education and Research at Chandigarh. After numerous adjuornments granted on number of dates, the child was ultimately examined on 9th March, 1990 by Savita Malhotra, Additional Professor in the Post Graduate Institute of Medical Education and Research, Chandigarh who vide her report dated 9th March, 1990 reported that the child suffered from servere Mental Retardation. It was further opined that he was incapable of earning a livelihood and would require assistance for his day to-day needs. He is not capable of being educated. The medical report has not been challenged by any of the parties.

(3.) KEEPING in view, the undisputed facts that the father did not take care of the child for such a long period of almost 15 years and the child is mentally retarded, and needs assistance for his day to-day deeds which has in fact been provided by the mother and which in the normal course a mother is expected to perform for her mentally retarded child not as a ritual but as a sacred performance out of her monthly affection. The child being incapable of being educated. The child being incapable of being educated, the affluence and means of his father lose relevance. It is normally a father's duty to provide sufficient funds to give medical and to the son which the father has utterly failed. It has not been explained how after an utter neglect for 14 years, all of a sudden this affection and love for the child has woken up.