ONKAR WALIA Vs. URMILA DEVI

JUDGEMENT

(1.) The appeal arises out of an application for the custody of a minor male child named Rohit who was aged about 3 at the material time. The parents of Rohit were married in or about 1978 and he was born on Dec. 12, 1979. Around that time, the relations between the parents appear to have become strained. Consequently, the wife instituted a petition for divorce on Sept. 3, 1980 but the proceedings were later dropped and the parties once again started living together. Another male child was born on April 22, 1982. Even before the birth of the second child and while she was still pregnant, according to the version of the wife, she was turned out of the matrimonial home and she was deprived of the care and custody of Rohit. The second child was born at the parental home and continues to be in her custody. On Oct. 12, 1982, the husband instituted a petition for divorce describing himself as Mohammad Salim alias Onkar Walia on the ground that he had ceased to be a Hindu on account of his conversion to another religion. The petition was dismissed as withdrawn at the instance of the husband on Aug. 17, 1983. The trial court has found that apart from the abovementioned proceedings, there have been prolonged litigations between the parties including criminal and that some litigations are still pending. The fact that the husband has embraced Islam is apparent on the material brought on record of this case. The trial Court, having regard to all the circumstances of the case and in light of the legal position, has awarded the custody of Rohit to the mother. Hence the present appeal.

(2.) Section 6 of the Hindu Minority and Guardianship Act, 1956, inter alia, provides that the natural guardians of a Hindu minor, in respect of the minor's person are : (a) in the case of a boy or an unmarried girl - the father, and, (b) after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. There is yet another proviso to the section which enacts, inter alia, that no person shall be entitled to act as the natural guardian of a minor under the provisions of the said section if he has ceased to be a Hindu. S.13, inter alia, provides that in the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration.

(3.) The principle of law in relation to the custody of a minor is even otherwise well settled. It is well established that any matter concerning a minor has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor's interest. In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor. The Court must regard the welfare of the minor as the first and paramount consideration and must not take into consideration, whether from any other point of view, the claim of the father, or any right possessed by him in respect of such custody, is superior to that of the mother, or the claim of the mother is superior to that of the father. See Thrity Hoshie Dolikuka v. Hoshiam Shavakasha Dolikuka, AIR 1982 SC 1276.