SHARMA Vs. CHANDER KUMAR SHARMA

JUDGEMENT

(1.) As a result of an appellate order dated May 26, 1979 (Exhibit P. 1) of this Court, passed under section 25 of the Guardians and Wards Act, 1890 (for short, the Act) read with section 5 of the Hindu Mirority and Gtardianship Act, 1956 (for short, the Guardianship Act), for the custody of the appellant's minor son Mohan Kumar alias Annu, the appellant secured the custody of the child with effect from May 13, 1980. This order later on a move by he respondent husband was explained by the learned Judge who passed it, vide his order dated December 13, 1979 (Annexure P. 2) in the following words :-

(2.) The parties to this litigation were married in September, 1973 and after that they lived as husband and wife in Chandigarh till December, 1975. Child Mohan Kumar alias Anna was born to them on July 5, 1974. Subsequent thereto unfortunately for the parties to the litigation as well as for the child, differences arose amongst them and as a result thereof the appellant wife withdrew from the company of the respondent husband in December, 1975, leaving 1-1/2 years old Annu with the father. As all efforts to bring about reconciliation between the parties failed, the respondent husband brought a petition under section 25 of the Hindu Marriage Act for restitution of conjugal rights, but was dismissed in default by the Sub Judge 1st Class, Chandigarh. Later the appellant-wife filed an application under section 25 of the Act read with section 6 of the Guardianship Act for the custody of the child and the said proceedings resulted in the passing of the order, Exhibit P. 1. Before the appellant could secure the physical custody of the child, the respondent in the light of the observations made by the learned Judge vide Exhibit P. 2, filed the present application under section 25 of the Act read with section 6 of the Guardianship Act with the prayer that he should be declared to be the natural guardian of Annu and be allowed to keep the child in his custody as it was in the best interest of the minor. It was further pointed out by him that since the appellant wife had withdrawn from his company when the child was only 1-1/2 years old, she had lost all interest and love for the child, and it was only with a view to harass him that she initiated the proceedings which resulted in the passing of the order, Exhibit P. 1. It was also stated in this application that the child was very much attached to the father and had been brought up under his care and control and it is in the best interest of the minor to stay with him more particularly when he is more than fire years of age and is in the formative years of his life. This claim of the husband was contested by the appellant with the pleas that she had been actually forced out of the house by the respondent, she had all the love and affection for the child, she could bring him up better as after her graduation, she had undergone pre-nursery training in child care and otherwise also she could afford to maintain the child at her father's place, that is, at Nabha. Besides these pleas on merits, it was also pleaded that the present application by the husband was not maintainable because (i) the child was still in his physical custody on the date of the filing of the application; (ii) in view of the provisions of clause (b) of section 19 of the Act, the father could not be declared to be the guardian of the minor and (iii) for want of compliance of sub-section (3) of section 10 of the Act. As a result of the trial that ensued on the basis of the pleadings of the parties, the Guardian Judge, Chandigarh, has allowed the application of the respondent husband and held him to be the guardian of the minor and also held him to be entitled to the custody of the child. Now in this appeal this order of the learned counsel for the appellant, besides contesting the findings Guardian Judge is impugned.

(3.) The learned counsel for the appellant, besides contesting the findings recorded by the lower court on merits has also raised the legal pleas already noticed above. Before going into the merits, I deem it fit to dispose of pleas first.