ANOKH SINGH Vs. GURNAM KAUR AND ANOTHER

JUDGEMENT

(1.) This is an appeal arising out of the proceedings taken by Gurnam Kaur mother of Jito aged 12 years, before the Guardian Court under Section 25 of the Guardians and Wards Act, 1890 (hereinafter called the Act). The facts which are necessary for decision of this appeal may be stated hereunder.

(2.) Gurnam Kaur was married to Jamal Singh resident of village Mornawali, District Sangrur. He died some 4/5 years back and after his death Gurnam Kaur married Bhag Singh Tarkhan of Sangrur. It is alleged that in between her marriage with Bhag Singh, she had contracted marriage with Anokh Singh, respondent 2, brother of Jaimal Singh deceased by Chadar Andazi. After her marriage with Bhag Singh, a dispute arose between her and Anokh Singh, Maluk Singh and Darshan Singh, brothers of Jaimal Singh deceased on the other side, about the custody of Jito and her two minor bothers Joginder Singh and Joga Singh. The respondent Gurnam Kaur had even once applied for search-warrant under Section 100, Code of Criminal Procedure, for custody of the children. Anokh Singh made a complaint against her under Section 494, Indian Penal Code, alleging that she having married him by Karewa after the death of her husband Jaimal Singh, re-marriage Bhag Singh and thereby committed an offence. It is a common ground that this complaint was dismissed. Jito, however, remained in the custody of her uncle Anokh Singh and his brothers who are respondents in this appeal and this necessitated an application by Gurnam Kaur under section 25 of the Act. Anokh Singh and others resisted the application and it was pleaded by them that she was leading an immoral life and was not a fit person to whom the custody of the minor child be entrusted. It was pleaded that Jito was being looked after by her uncle and aged grand-mother, and that it was not in the interest of the minor girl to live with Bhag Singh who was a Tarkhan by caste. Controversy between the parties led to the following issue :-

(3.) Maluk Singh and Darshan Singh who were resisting the application of the respondent in the Court below were impleaded as respondents in this appeal as well, but there is no appearance on their behalf. Evidence was led on behalf of the appellant and his brothers mainly to establish the Chadar Andazi set up by them whereby it was sought to prove that the respondent had remarried Anokh Singh appellant and she was, therefore, of an immoral character, when having married once she contracted another marriage with Bhag Singh. The trial Court examined the validity of the first Karewa marriage presumably because the parties mainly concentrated on that aspect of the matter. The evidence in regard to the alleged Karewa was not believed and it was held that the marriage of Gurnam Kaur with Anokh Singh was not proved. In this view of the matter, there was no evidence left on which a finding could be based that the respondent was leading an immoral life. The Senior Subordinate Judge accordingly was of the opinion that the respondent being the mother of the minor girl Jito and being her natural guardian under the law must be restored the custody of the child. Jito was also examined by him in order to ascertain her preference and she seems to have indicated that she was inclined to continue with her uncle Anokh Singh. The preference of the minor girl was ignored on the ground that she having come from the custody of Anokh Singh must have been inspired by him and her preference could not, thus, be given much weight.