JARNAIL SINGH Vs. CHANAN KAUR

JUDGEMENT

(1.) Jarnail Singh has preferred this appeal against the order dated the 14th March, 1969, of the Guardian Judge, Ferozepur dismissing his application under section 25 of the Guardian and Wards Act for the custody of the three minors. In the application and dated 15th July,1968, Jarnail Singh averred that he married Chanan Kaur 15 years ago and that from wedlock following children were born :-

(2.) In her statement, Chanan Kaur admitted the factum of marriage and the birth of the three minors out of the wedlock. She totally denied the allegation that she was brought by her brother Kartar Singh in the circumstances alleged by Jarnail Singh. According to her, she was maltreated for a number of years and even beaten for about six years before Sukhwinder Singh was born. In spite of repeated requests Jarnail Singh refused to take them back. She accused Jarnail Singh of not only neglecting her and the minors but also refusing to maintain them. For some time before the birth of the last child she lived with Jarnail Singh but as there was no change of his cruel behavior she was brought by her brother to Ferozepur where she had been living and where the daughter, namely, Gudi was born. As to the filing of application for restitution of conjugal rights, she assailed the bona fides of Jarnail Singh and averred that the same was dismissed. She also alleged that Jarnail Singh made a false complaint under section 380. Indian Penal Code, against her brother and mother on 6th May, 1967, and that it was also dismissed. With regard to the welfare of the children in her custody she averred that Jasbir was a student of Third Primary Class and Sukhwinder of the of the first class, With regard to the persistent cruel behavior of Jarnail Singh and the neglect exhibited by him during the last several years, she stated that the children would not be properly looked after and brought up by him and that the present application had been made to escape the liability for the maintenance charges of the minors.

(3.) Learned counsel for Jarnail Singh pointed out that even before the Guardian Judge he did not press for the custody of the youngest child, namely,Gudi, but with regard to the claim of the custody of the other two minors, he laid great stress on the fact that Jarnail Singh was the natural guardian and entitled to their custody. On the other hand, my attention has been drawn to Manjit Singh v. Bakhshish Singh and another, 1952 AIR(P&H) 129in which Kapur J. (as he then was) held that "Father's right to the custody of the child is not absolute . It is circumscribed by the consideration of welfare of the minor. If the minor's welfare requires that custody should not be given to the father, he can not get it merely because he happens to be the father. Similarly, in Smt. Maya Devi and another v. Amolak Ram, 1956 58 PunLR 557Bishan Narain, J. laid down that "the right of a father as a natural guardians to the custody of his minor children is not in an indefeasible right in law, if the exercise of such a right is not in the minor's welfare". That being so, the mere fact that Jarnail Singh is the father of the minors is not enough to entitled him to the custody of the minors.