SUNITA DEVI Vs. RAJ PAL KAUSHAL

JUDGEMENT

(1.) THIS appeal has been filed by Sunita Devi against the order dated 9th June, 1977, passed by the Senior Sub Judge, Gurdaspur, whereby under Section 25 of the Guardians and Wards Act custody of her son was directed to be given to Raj Pal who had applied for it in the month of October, 1976. The marriage between Raj Pal and Sunita Devi was dissolved by a decree of divorce in the month of January, 1976. Madan Mohan is the name of the child whose custody is at present to be decided upon. He was born on 22nd December, 1971 and is thus at present aged about six years. Both the parties re -married after the passing of the decree of divorce.

(2.) THE first point for determination in this appeal is whether in the circumstances of this case the respondent could apply for the custody of the child on the ground that he had been removed from his custody. It had been mentioned in the petition itself that from the time of the birth of the child till the date of the filing of the petition the respondent had not seen the face of the child. The learned counsel for the appellant draws this inference from this kind of pleading that at no point of time the father had lived with the child and hence there could not be a constructive removal of the child from his custody when the mother refused to deliver the custody of the child to his natural guardian. A reference has been made by the learned counsel for the appellant to Shivawwa Balappa Rampur v. Chenbasappagowda Sangangowda Gowdar, A.I.R. 1941 Bom. 344, wherein this finding was given that if the custody of the child was never with the guardia an section 25 of the Guardians Wards Act would not apply. According to this authority, it could not be said that a minor who has never been in the custody, of his guardian has either left or been removed from such custody. I am of the view that it was for exaggerating the grievance against the appellant that the respondent tried to build up this kind of case that she had never allowed him to see the child. Raj Pal while giving his evidence as A.W. 1 deposed that even though the child was born on 22nd December, 1971, yet he was with his mother only from the year 1972. Even Sunita Devi while giving her evidence as R.W.1 said that the child from the age of six months remained in her sole custody and that her husband never thereafter came to see him. It is thus apparent that it is not such a type of case that the child was born to the woman after the separation of the parties. For some period both the parents lived together after the birth of the child. The Bombay case referred to above cannot, therefore, be applied to the facts of the present case.