SURAT RAM Vs. NARDU

JUDGEMENT

(1.) THIS is an appeal under Section 47, Guardians and Wards Act against the judgment and order of the Senior Subordinate Judge of Mahasu dated 29 9 1951 dismissing the application of the appellant Surat Bam under Section 25 of the Act for the custody of his minor son Balak Bam.

(2.) THE contest in this case is between the father and the mother of the child, named Mt. Nardu. I have heard earned counsel for the parties and am of the opinion that the decision of the Court below should not be interfered with.

(3.) THE facts which are not in dispute in this case are the following. The appellant and the respondent were married about 16 years ago. It appears that there was one other son born of this union, but he died. The minor in question was born on 35th Phagun 2002 B., so that at the time of . the filing of the present application he was about 5 years and 7 months old, and his age at the present moment is 6 years and 9 months. There is nothing to show that the relations between the parties were anything but normal until the appellant married a second time. This second marriage appears to have taken place when the minor was about a year and half old, i. e. sometime in the year 1948. Thereafter the relations between the husband and the wife became strained, and this was presumably due to the fact of the second marriage. The appellant had to file against her a suit for restitution of conjugal rights in December 1950, His allegation is that about 13 months before his filing that suit, i. e. about November 1949, she left him with the child. The suit resulted in a compromise decree and Mt. Nardu returned to the appellant and lived with him for about a month. She however again left him on 5 3 1951, taking the child away with her. She has since been living with her parents and latterly with her mother at Simla. Mt. Nardu has admittedly no independent means of livelihood, but she and the child are being maintained by Mt. Nardu's mother who is carrying on the business of selling milk at Simla. The present application was made on 23 4 1951. The petitioner is a forest guard getting Rs. 60/ p m. His parents are alive and they live in the ancestral home in village Hariawan, Tehsil Arki. The appellant's second wife along with four children born of this second marriage live with him.