CHHINA RAM Vs. KAMLA

JUDGEMENT

(1.) THIS revision petition has been filed under section 115, CODE OF CIVIL PROCEDURE, 1908 against the order of the learned District Judge, Jodhpur dated February 7, 1987 by which he ordered the non-petitioner No. 1 Mst. Kamla to take her minor daughter Niru from the Office of Shri Ranamal Advocate at 9 a. m. and return her at 4, p. m. in his office on every Sunday. The facts of the case giving rise to this revision petition may be summarised thus.

(2.) NON-petitioner No. 1 Mst. Kamla was married with Tulasidas. Usha and Niru were born out of this wedlock. On 9th July, 1982 Tulasidas died. The non-petitioner moved an application under Section 25, Guardian & Wards Act, 1925 (hereinafter referred to as 'the Act') for the custody of her daughters. She also moved an application under section 12 of the Act for their interim custody. The petitioner, father of late Tulasidas, seriously contested the petition, stating that the non-petitioner No. 1 Mst. Kamla Devi has contracted Nata marriage with Raju, she is leading an immoral life, she has given a birth of a daughter after 15 months of the death of her husband Tulasidas and Usha has been married. The petitioner had moved an application under Order 16, Rule 1 and Section 151, CODE OF CIVIL PROCEDURE, 1908 for summoning the record of the Ummaid Hospital, Jodhpur and to examine the Superintendent of the Hospital to prove that Mst. Kamla had given a birth of a daughter in this hospital after 15 months of the death of late Tulasidas. During the pendency of this application, the learned District Judge passed the said order which has been challenged in this revision. It has been contended by the learned counsel for the petitioner that the learned District Judge has seriously erred in the exercise of his jurisdiction illegally and with material irregularity in passing the said order without first disposing of the said application moved under Order 16, Rule 1 and Section 151, CODE OF CIVIL PROCEDURE, 1908 to prove that Mst. Kamla is leading an immoral life, even the interim custody of the minor daughters with her would adversely affect on their development and character. He further contended that he never gave his consent for the said interim custody of Mst. Niru. He lastly contended that the learned District Judge was bound to ascertain the wishes of Mst. Niru before passing the impugned order and he committed a great error in not ascertaining her wishes. He relied upon Aisha vs. Bashir Ahamad, (1), Lakshmamma v. Achamma, (2), Sukhjit Singh vs. Olga Usha, (3), Satnam Transport Co. vs. Prakash Mal, (4) and Akhtar Begum v. Jamshed Munir, (5 ).

(3.) THE second question for consideration is whether the above quoted order relating to the meeting of mother Smt. Kamla and Neeru was passed with the consent of the parties or not. It clearly recites that Shri Ranarnal stated before the court that facility may be granted to Neeru to meet her mother once in a week. It shows that Neeru was allowed to meet her mother and not vice versa. Naturally, the question which could have arisen before the court on that, day would have been where from Neeru was to be taken and returned. If Shri Ranarnal Advocate would not have made any suggestion in this regard, the order would not have mentioned that Neeru may be taken from his office at 9 a m. and returned the same day at 4 p m in his office on every Sunday. THE very fact that his office was selected as the venue for taking and returning Neeru, leaves no doubt that this suggestion regarding the place must have been come from him and none else. This leaves no doubt that the said order was passed with the consent of the parties and it cannot now be challenged-