KIRAN KUMAR Vs. RAMESHWAR YADAV

JUDGEMENT

(1.) Having remained unsuccessful in a petition filed under Sections 7/25 of the Guardian and Wards Act, 1890 (In short "the Act") for custody of minor son, namely, Kunal son of Shri Kiran Kumar and Smt. Rekha, the appellant has approached this Court by way of instant appeal challenging the judgment dated 3.2.2012 passed by the District Judge, Family Court, Gurgaon.

(2.) The facts, in brief, necessary for adjudication of the instant appeal as narrated therein may be noticed. The marriage of the appellant with Smt. Rekha (daughter of the respondent) was solemnized as per Hindu rites and ceremonies at village Nawada, District Gurgaon. It was a simple marriage as there was no demand of dowry. Out of the said wedlock, a son, namely, Kunal was born. Soon after the marriage, the family members of Smt. Rekha (since deceased) started causing interference in their matrimonial life. The appellant filed a divorce petition against his wife Rekha. However, during the pendency of the divorce petition, Smt. Rekha died in the month of December, 2005 and the said petition was withdrawn. In the month of February, 2005, Smt. Rekha had filed a petition under Section 125 of the Code of Criminal Procedure for maintenance for herself and her son Kunal which was fixed at the rate of Rs. 1000/- each for Smt. Rekha and her son Kunal by the trial court. The appellant paid the amount of interim maintenance upto December, 2005. The appellant being the father and natural guardian of minor child was entitled to have his custody who is residing with the respondent. The appellant asked the respondent to hand over the custody of the minor but to no avail and this gave cause to the appellant to file a petition under Sections 7/25 of the Act for the custody of the minor child, namely, Kunal. The said petition was contested by the respondent by filing a written statement. Various preliminary objections were raised in the written statement. It was pleaded that the appellant had not paid even a single penny to minor Kunal after the death of Rekha. It was further pleaded that the custody of the minor with the respondent was in the benefit and welfare of the child as since his birth, the child was living with his maternal grand parents. The other averments made in the petition were denied and a prayer for dismissal of the same was made. From the pleadings of the parties, the trial court framed the following issues:-

(3.) The trial court on appreciation of evidence led by the parties on record, decided issue No.1 against the appellant holding that since he had denied the paternity of the minor, therefore, the custody of the minor with him would not be in the interest and welfare of minor Kunal. Issues No.2 and 3 were decided against the respondent being not pressed. Accordingly, the trial court vide judgment dated 3.2.2012 dismissed the petition. Hence, the present appeal.