MOHAN LAL Vs. KALA ALIASSHANTA DEVI

JUDGEMENT

(1.) THIS appeal has been filed against the order of the learned District Judge, Udaipur dated April 5, 1989 by which he has directed the petitioner under Section 12, Guardian & Wards Act, 1890) hereinafter referred to as the Act') to immediately give Lokash in the temporary custody protection of non-petitioner. The facts of the case may be summarised thus.

(2.) THE parties are husband and wife, moved an application under Section 12 of the Act, Section 13 & 16, Hindu Adoption & Maintenance Act and Sect-ion 151 C. P. C. with the allegations, in short, that the parties were married about thirteen year ago. on 16. 10. 84 Lokesh was born out of this wed-lock, about two years back husband turned her out along with Lokesh from his house she started living with her parents. Husband came there about a year ago for taking them to his house and she proceeded with him Her husband left her in the way and forcible took her Lokesh from her. Since then, Lokesh is living with him About eight months back, the husband has contacted second marriage with Manju D/o Rameshwar Lal Dadhich, r/o Gingla. It is not in the interest of the minor that he should remain with his father as he is a drunkard and he remains out of station for days together in connection with his service as a Khalasi on a vehicle. Step-mother Manju is also not keeping Lokesh properly. In his reply, the petitioner admitted that the parties are husband and wife, they were married about thirteen years ago, Lokesh was born out of this wed- lock and at present, he is residing with him. THE remaining allegation of the petition have been denied It has further been averred in it that Lokesh wos born on May 8, 1983 and not on October 16, 1984, the non-petitioner herself left his house, she is leading art immoral life, Lokesh is suffering from an eye disease and treatment is going on and he is being properly looked after by his grand-mother, grandfather and aunt (Bhua ). THE parties field their affidavits and also of their witnesses. After hearing the parties, the learned District Judge passed the impugned order.

(3.) IT is correct that Lokesh did not recognise his mother and started weeping when she tried to take her. Admittedly, he is living for over l-1/2 year with his father. This behaviour of Lokesh was natural. From this fact alone, it cannot be said that it would not be in his interest to change the custody from father to mother.