JAGBIR SINGH ALIAS JAIBIR SINGH Vs. NISHA

JUDGEMENT

(1.) The present appeal lays challenge to judgment dated 27.01.2010, passed by the District Judge, Family Court, Gurgaon, whereby the petition filed by the appellant, under Section 25 of the Guardian and Wards Act, 1890 read with Section 6 of the Hindu Minority and Guardianship Act, 1956, for custody of his minor son, has been dismissed. The appellant was married with the respondent on 02.12.1999 and a male child, namely, Shushant was born out of this wedlock on 27.05.2001. The matter with regard to dissolution of marriage of the parties is pending in appeal before this Court. As per averments, the appellant has love and affection for the minor child. He had been sending birthday gifts to the child on his every birthday. The child is more than five years old and the appellant being his natural guardian, is entitled to his custody. The respondent was negligent and careless in her duties towards the child and, therefore, paternal grand parents of the child used to look after him. The respondent has no source of income other than the maintenance amount being paid by the appellant. The parents of the respondent cannot satisfy the demands of the child. The father of the respondent is addicted to various vices and is contributing nothing towards the family. The mother of the respondent is running a petty shop dealing in clothes in a small village of Manesar.

(2.) The respondent filed reply, controverting allegations in the petition and raised a plea that as she is the mother of the minor, she is the best person to look after the physical and emotional needs of the child. She is residing in the house of her parents and is being fully supported by her parents, who have a monthly income of Rs. 70,000/- from rent of two houses and a showroom in Manesar. The minor is getting education in a reputed public school at Manesar and he is being adequately looked after. The appellant is not in a position to look after the welfare of the child and his education as the appellant is a driver having a petty income. The petition has been filed with a mala fide intention to escape liability to pay maintenance allowance.

(3.) The appellant filed replication reiterating averments in the petition while refuting the facts contained in the written statement.