NAND LAL Vs. MST. NARAINI DEVI

JUDGEMENT

(1.) THIS appeal arises out of the order passed by the Additional District Judge, Hissar, in pursuance to an application filed by Nand Lal Petitioner against his wife Naraini Devi Respondent, under Section 26 of the Hindu Marriage Act (hereinafter referred to as the Act) claiming the custody of their two minor daughters aged 12 years and 9 years respectively. The trial Court has vividly recapitulated not only the facts but also the various circumstances which weighed with it to refuse the prayer of the Petitioner for the custody of the children. It is needless to recapitulate all these facts but some of the glaring features which emerge from the evidence pro -due d by the parties, may be noticed. It is undisputed that the parties had been living apart from each other for a period of about eight years prior to the filing of the petition. During this period, no effort whatsoever was made by the Petitioner to claim the custody of the minors. The Petitioner indeed alleged that the Respondent had left his house but he was unable to suggest any cogent reason as to why she did so. On the other hand, the case of the Respondent is that she was maltreated and turned out of the house after she was given a beating. An -other fact that also sands proved on the record is that the Respondent after leaving the house of the Petitioner started living with one Hari Chand, a Sarpanch of another village. The evidence further reveals that apart from the two children of the parties whose custody is sought by the Petitioner, the Respondent gave birth to three more children while she lived with Hari Chand during the last eight years. The trial Court exercised due wisdom in ascertaining the wishes of the two minors about their choice of the parent with whom they wished to live. Both the children categorically and emphatically desired that they wanted to live with their mother and Hari Chand whom they treated as their father. The trial Court has also referred to the stress made by the minors in this behalf that they would rather jump in a well than to live with the Petitioner. This is very important circumstance for the purpose of considering the welfare of the minors.

(2.) APART from the above facts the trial Court has also applied its mind to financial capabilities of the Petitioner and Hari Chand, the person with whom the Respondent is now living. The Petitioner is said to own hardly five acres of land which was under mortgage, though it is alleged that the mortgage had since been redeemed. The old parents of the Petitioner are also living with him. On the other hand, the person with whom the Respondent is residing i.e., Hari Chand has twenty acres of land and being a Sarpanch of the village, commands respect in the locality. The two minors stated that they were going to school which shows that he attention is being paid to their education. It cannot also be ignored that both the minors are daughters and it is more conducive to their interest that they staved with their mother rather than father. The solitary argument that father is natural guar -dian of his children is not conclusive, in the circumstances noticed above. The discretion exercised by the trial Court refusing the custody of the minors to the Petitioner, is therefore, quite judicious and calls, for no interference, moreso when the trial Court has itself observed that the Petitioner shall be at liberty to bring another petition after one year in case he finds any deficiency in the upkeep of the two minor children by the Respondent.