PARMINDER LAL SARIN Vs. SUMAN LATA

JUDGEMENT

(1.) This appeal under Section 28. Hindu Marriage Act (referred to as the Act), is directed against the judgment of District Judge. Simla, giving the custody of the child to his mother.

(2.) Shri Perminder Lal Sarin (referred to as the husband) filed a petition for divorce against Shrimati Suman Lata (referred to as the wife) under Section 13 of the Act. During the pendency of the proceedings the wife made an application under Section 26 of the Act for the custody of her son Rinkoo alias Daman Sarain. The child was born on 7th April, 1979 and he had not yet completed four years when the application was filed. It was averred that the husband had removed the child in connivance with his old mother from the custody of the wife and had removed him from Shimla. Various allegations against the husband were made to show that he was not fit enough to have the custody of the child. The husband averred that the wife was a "chronic patient of fits and due to her said ailment she is totally incapable in looking after the child. Only due to the said reasons right from the beginning the respondent and his mother have been looking after and maintaining the child." It was also denied that the husband had removed the child from the custody of the wife. It was however, stated that the child had to be sent to Delhi where he was properly looked after and maintained by the mother of the husband.

(3.) In support of the application the wife examined herself. She deposes that when the differences arose between the couple, she was sent to her parents house by the husband, and she took Rinkoo with her. It was stated that one day the child was taken bv the husband to his house on the pretext that his mother wanted to meet the child and thereafter the child was removed to Delhi and never brought back. She also deposes that she had been looking after the child ever since his birth and till his removal to Delhi, she was not cross examined at all. The husband also went in the witness box. He stated that the wife was suffering from epilepsy and, therefore, she was not capable of looking after the child. He produced medical chit Ex. RA of Safdarjang Hospital, New Delhi. The provisional diagnosis was of "G. M. epilepsy."