SHRI LAL MAHTO Vs. AMAR SINGH RATHAUR

JUDGEMENT

(1.) THIS appeal has been filed against the order dated 26.9.2005 passed in Guardian and Wards Case No. 3/2001. The learned District Judge, Khagaria by the impugned order has allowed the above mentioned case filed by the respondent under section 6 of the Hindu Minority and Guardianship Act, 1956 read with section 7 of the Guardians and Wards Act, 1890 for the custody of his minor son Bibhuti Kumar.

(2.) IT appears that a petition under the Hindu Minority and Guardianship Act as also under the Guardians and Wards Act was filed by Amar Singh Rathaur, the respondent in the present appeal, alleging therein that Bibhuti Kumar, his son aged about 7 years, at the time of filing of this petition, was born from his first wife. He had two more children from his first wife, namely, Shyam and Ganga. After the death of his wife he got remarried and a daughter was born from the second wife also, who is 1 1/2 years old. The eldest son of the petitioner later on died. The further case of the petitioner is that in order to give affection and nourishment to his second son he got his second wife operated so that no further issues could be begotten from his second wife. The minor Bibhuti Kumar was living with the petitioner with all happiness and the petitioner was contributing to his development and fairly looking after his health and was also provided good education. Some time before Holi festival the father -in -law of the petitioner came to his residence and expressed his desire to take Bibhuti Kumar to his Nanihal for some days. The petitioner in good faith allowed his son to go with him but he was not brought back after expiry of a fortnight 'stime. The petitioner went to the house of his father -in -law but he became angry and refused to send the son with the petitioner. The petitioner continued to go to the O.R and requesting for return of Bibhuti Kumar and lastly his requests were refused on 1.9.2001. He filed the above case for custody of his minor son. It was also stated in the petition that he had no other male issue and for the welfare and proper education of Bibhuti Kumar it is necessary to give Bibhuti Kumar in his custody.

(3.) THE District Judge after considering the evidence adduced by both the parties came to the conclusion that the petitioner (respondent) being natural guardian, the father, was legally entitled and had preferential claim with respect to the custody of his minor son. He accordingly allowed the petition. Being aggrieved by the above order the appellants had preferred this appeal.