SHANTI DEVI Vs. RATTAN CHAND

JUDGEMENT

(1.) THIS appeal arises out of an application filed by Rattan Chand (respondent in this Court) under section 25 of the Guardians and Wards Act for the custody of his minor wife Shrimati Parkasho alias Machhlo daughter of Shrimati Shanti Devi, the petitioner in this Court. The application was filed in the Court below on 9th may 1960 on the allegation that the parties had been married about six or sever months earlier and the wife had lived with the husband for about two months. Thereafter, when the husband went to Solan, taking advantage of his absence Shrimati Shanti Devi took away Shrimati Parkasho. On the husband's return from Solan, he went to the house of the wife's mother but she refused to end her daughter. Alleging that Shrimati Parkasho is being unnecessarily detained, he has asked for his wife's custody under the Guardians and Wards Act.

(2.) IN the written statement the defendants admitted the age of Shrimati Parkasho to be 15 or 16 years and also the marriage between the parties about six or seven months prior to the filing of the petition. It has also lot been denied that the wife lived with the husband for about two months. It has, however, been averred that the treatment of Rattan Chand's mother with Shrimati Parkasho was no good and therefore Shrimati Shanti Devi visited Rattan Chand's house. After some days Sukhi, the husband's brother, brought Shrimati Parkasho to the house of Nanak who was impleaded as respondent No. 4 by Rattan Chand in his petition and left her there. It has also been asserted that in presence of the Panchayat Rattan Chand actually said that be would shoot Shrimati Parkasho and her relatives. On these allegations, among others, the husband's petition has been resisted. On the pleadings of the parties the Court framed the following issues: 1. Is the petitioner not entitled to the custody of Shrimati Parkasho Devi for the reasons stated in the written statement? 2. Is it for the welfare of Shrimati Parkasho Devi to return to the custody of this petitioner? The Court below felt that it was for the welfare of the minor wife to live in the custody of her husband, and with this observation the petition was allowed an Shrimati Shanti Devi directed to produce Shrimati Parkasho in Court. In so far as the allegation that the husband had said in the presence of the Panchayat that he would shoot Shrimati Parkasho, the Court seems to have disbelieved the evidence of the witnesses on the ground that no reason had been given by any witness. It would be desirable to reproduce the actual words in which the Court below expressed itself:

(3.) IN the present case I have been taken through the evidence on the record, and I find that the apprehension on the part of the wife does not seem to be completely unfounded. As a matter of fact, it is agreed at the Bar that the relations between the parties are strained and have reached such a pitch that proceedings for annulment of marriage were also started by the wife, though in the trial Court, I am informed she has filed, but an appeal is going to be filed, if it has not already been filed. This was the information given to me at the Bar by the learned counsel for the appellant. The provisions of section 25 of the Guardians and Wards Act confer on the Guardian Court a discretion to be exercised in the interest of the welfare of the minor. The Court is not bound necessarily to hand over the minor's custody to the guardian merely because the latter applies for it. In these circumstances the Court, in my opinion, has to consider and weigh all the circumstances and then come to a determination of the question. In the present case the minor is living with her real mother who can by no means be considered to entertain any feelings of hostility towards her daughter, and indeed no cogent or convincing ground has been shown that Shrimati Parkasho is being kept by her mother for any undesirable purpose. Shrimati Parkasho is grown-up enough and if after having stayed with her husband for a couple of months after he marriage she actually states that she is apprehending danger to her life in her husband's house, there must be some basis for such an apprehension. Besides, the matter having also gone to the matrimonial court, it would in my opinion, have been more proper for the Court to abstain from passing any order under section 25 of the Guardians and Wards Act and should have left the matter to be determined in appropriate proceedings under the Hindu Marriage Act.