KANSHI RAM Vs. DROPATI

JUDGEMENT

(1.) This appeal under Section 47 of the Guardian and Wards Act, 1890, has been preferred by the appellants against the judgment of the Senior Sub-Judge, Bilaspur (exercising the powers of District Judge under the Act) dated 28.5.1987. They are the grandfather, grand-mother uncle of the minor, Pawan Kumar.

(2.) The facts, briefly, are that Smt. Dropti (mother of the minor) filed a petition under Section 25 of the Guardian and Wards Act, 1890 (hereinafter referred to as the Act). In this petition, she stated that her son was living with the appellants and that she may be given the custody of the child. The marriage between Smt. Dropti and Sh. Nikku Ram, son of Kansi Ram, had taken place on 27th day of Phalgun Sambat 2029 BK. It was out of this wedlock that minor Pawan Kumar was born. On the date of the presentation of the petition, Pawan Kumar was about 6 years old. The husband of Smt. Dropti was serving in the Assam Rifles and was posted in Assam. About three years preceding the filing of the petition, he had married an Assamese girl, Neelam. Smt. Dropti further states that since after this second marriage of her husband, the appellants started ill-treating her for the reason that they wanted her to divorce Nikku Ram. The behaviour although tolerated for sometime, could not be further tolerated with the result that she had to leave this family to stay at the house of her parents. It was here that minor Pawan Kumar was taken away from her by the appellant Kansi Ram. She being the legal and natural guardian, was entitled to the custody of her son and it was also for the benefit of the minor to live under her care and affection whereas the appellants had no right to take away her son from her and keep him with them. Besides, it was not safe for the minor to live with the appellants since, when she visited him, she found an injury on his head whereby she suspected that the minor was subjected to beatings by the appellant Kansi Ram.

(3.) On the other hand, the appellants, inter alia, submit that the minor Pawan Kumar was living with them since the time when he was only ten months old. He was left by Smt. Dropti with them while she went away to live with her parents. Thereafter she never returned to their house nor ever cared to enquire about the welfare of the minor. The were looking after the minor since then. The factum of marriage by their son, Nikku Ram, with some Assamese girl has been denied and certain allegations against her character have also been made. Both the parties led evidence and placed their respective pleas before the Court below and the final result was that the petition was allowed and the appellants were directed to hand over the custody of the minor Pawan Kumar to the mother within a period of fifteen days from the date of the order. It is this order which is being assailed by the appellants before this Court. It is necessary to notice that this Court passed a number of orders from time to time. However, no order restoring the custody of the minor to the respondent was passed during this period although the respondent was given visitation rights on every working Saturday between 12 noon to 3.00 PM in the Government Primary School, Dokru, Tehsil Ghumarwin where the minor, Pawan Kumar, has been admitted for schooling. This Court further directed the head master of the school to give the requisite facility to the parties to comply with the order. It was also directed that in case the school closes for vacation exceeding fifteen days, in that event, the access to the child be given during the same hours on every Saturday (falling during the vacation period) at the house of her brother Narottam Dutt resident of village Vijapur, Tehsil Ghumarwin.