GANGABAI Vs. BHERULAL

JUDGEMENT

(1.) This appeal of Smt. Gangabai is directed against the order of the District Judge, Udaipur, dated March 23, 1974, in Civil Misc. Case No. 69 of 1972, whereby the learned Judge directed that the custody of her minor son Kishanlal shall be returned by Smt. Gangabai, the mother of the boy, to his father respondent Bherulal. As regards the custody of the minor daughter Deu alias Bagdi, aged about 14 years, the learned Judge ordered that she would remain with her mother Smt Gangabai, appellant. That portion of the judgment has not been challenged by preferring cross-objection by Bherulal, respondent.

(2.) Bherulal was married to Gangabai on February 27, 1957, and out of this wedlock she gave birth to two children, namely, Deu alias Bagdi on January 1. 1962, and Kishanlal on March 2, 1965, They lived in an atmosphere of peace and amity upto 1968, when, it so appears that the relationship between the husband and wife became strained. An allegation was levelled against Bherulal that he had conducted a 'nata' marriage with one another lady Mst, Lehri and kept her as his wife. This marriage is alleged to have taken place on December 10. 1969. Before this marriage took place there were serious allegations of maltreatment meted out by Smt. Gangabai from her husband Bherulal. On September 19. 1968, it is said that Bherulal gave beating to Smt. Gangabai and forced her to leave his house and go to her parents' house with her two children. Bherulal filed an application under Section 9 of the Hindu Marriage Act, 1955, against Smt. Gangabai in the Court of District Judge, Udaipur, who after trial held that the allegations of Smt. Gangabai against Bherulal that he had kept Mst. Lehri as his 'natasud' wife were not substantiated, but it was proved that Smt. Gangabai was not properly treated and, therefore, it was difficult for the court to hold that Smt. Gangabai withdrew her society from her husband without reasonable excuse. In this view of the matter the petition filed by Bherulal was dismissed. Thereafter Bherulal again filed an application under Section 7 read with Section 25 of the Guardians and Wards Act before the District Judge, Udaipur, for the custody of his two minor children. The learned Judge, after inquiry, disposed of that application on March 23, 1974, holding that it will not be in the interest of the minor girl to transfer her custody to the father, but looking to the other circumstances the court was of opinion that it would be in the interest of minor Kishanlal that his custody may be transferred from the mother to the father. It is against this judgment that the present appeal is preferred by Smt. Gangabai,

(3.) On the basis of the Judgment of this Court reported in Gurdeosingh v. Mst. Daulat Kaur AIR 1961 Raj 30 it was urged that the wishes of the minor child must be given due regard while deciding cases of this nature irrespective of the fact whether there are some favourable points to allow the petition of the father for the custody of the minor male child. In view of this argument the child was summoned before the Court on July 1, 1975. Before the query was put to him it was urged on behalf of Bherulal that temporarily the custody of the child may be handed over to him so that he may not remain under the influence of his mother. The child was called in my chamber and in the presence of Bherulal and his learned counsel when he was asked as to whether he was ready to live with his father, the child expressed his unwillingness to go with his father. Bherulal was, however, allowed to have a free talk with Kishanlal, but the child refused to talk to him. When asked by the Court he expressed his intention to stay with his mother and refused to go with his father. It is in the light of this expression that I now propose to discuss the arguments advanced by the parties before me,