Arun Kumar Bhardwaj vs Anila Bhardwaj

G.R. Majithia, J.—Arun Kumar Bhardwaj, appellant, aggrieved against the order of the Guardian Judge, Jalandhar declining him the custody of his minor children has come up in appeal.

The facts as stand proved on record, briefly are:

The appellant-husband (hereinafter the husband) moved an application u/s 25 of the Gurdians and Wards Act (the Act, for brevity) against the respondent-wife (hereinafter the wife) for custody of his minor daughter Arun Bhardwaj alias Anju Bhardwaj and son Ashutosh Bhardwaj. The parties of the his were married on November 24, 1979 and out of the wedlock a daughter was born on December 21, 1980 and a son on August 3, 1982. The parties lived together at Faridabad until the middle of May, 1985 and thereafter the wife came to her parents house. The trouble brew up between the parties and it led to the filing of application u/s 125, Criminal Procedure Code, by the wife against the husband filed a petition for divorce u/s 13 of the Hindu Marriage Act against the wife. Twin matrimonial offences were alleged against the wife that she had voluntary sexual intercourse with some other persons after the solemnisation of the marriage and that she treated the husband with cruelty. The matrimonial Court dismissed the divorce petition by judgment and decree dated September 11, 1990. The husband challenged the judgment and decree of the Matrimonial Court in this Court in F.A.C. No. 157-M of 1990 and the same has been dismissed by me by order of even date. The Guardian Judge, after recording the evidence led by the parties, found that the wife''s claim for the custody of the minor children had to be preferred over that of the husband. He also took note of various circumstances viz., environments in which the minor children were being brought up, the school in which they were being educated, the financial capacity of the maternal grandfather for providing funds for the up-keep the minor children. The Guardian Judge, although declined the husband the custody of the minor children, but permitted him to take them to his house for 15 days during summer vacation every year.

When F.A.O. No. 438 of 1989 came up for hearing the Counsel for the husband could not even suggest that the conclusions arrived at by the Guardian Judge suffered from any infirmity. He fairly stated that the children were not grown up and they should remain in the custody of their mother. In order to satisfy myself that the children were being looked after properly. I sent for them and their maternal grandparents. They appeared before me and I found that the minor children were being properly brought up. They were healthy and gave suitable replies to the questions posed to them. The maternal grandparents appeared to be mature, considerate and wiser by years. The maternal grandfather informed me that the mother of the minors was working as a teacher in a public school, but he advised her to leave the teaching job so that she could devote more time for the minor children. He expected his daughter to remain at home so that when the children return from the school she should welcome them back. This gesture has impressed me. He appears to be a practical man fully appreciating the requirements of the minor children. The children would get consolation when they would be welcomed back from school by their mother. He also informed me about his financial resources. He is a retired Subedar, working at present with British Airways and owning agricultural land measuring about 16 acres and also looking after the land of his brothers-in-law (wife''s brothers) who have settled in Canada. He stated that after the children complete their education upto High School level in India, he intends to send them abroad for higher education. The fact remains that the minor children are being properly looked after by the mother. The maternal grand-parents are showering all affections and also providing funds for their maintenance.

On the other hand, the conduct of the husband is not appreciable. Eversince his wife and the children started living at Jalandhar, no attempt was made by him to send presents for his minor children. If he had affection for his children as is being proclaimed, he would not have hesitated to send gifts to them on their birthdays. There is no evidence that this gesture was ever shown by him.

I have dealt with the appeal against the judgment and decree of the Matrimonial Court by which the husband''s divorce petition is being dismissed. Keeping in view the whole set of circumstances, I am not inclined to disturb the order passed by the Guardian Judge. I however, feel that the Guardian Judge was not well advised to permit the husband to have the custody of his minor children for 15 days during summer vacation every year. The husbands wants to utilise that opportunity not for showering affection upon his minor children but for causing mental agony, pain and suffering to, his wife. He had made allegations against the chastity of his wife and in view of these facts, it will not be just to allow him the custody of his minor children for 15 days during summer vacation every year. The children, when they appeared before me, did not show any inclination towards their father. The father also did not make any request that he be permitted to meet his children for a short while. He also did not think it proper to offer them any small gift as a token of his affection for them.

For the reasons stated above, the appeal fails and is dismissed.

The wife has filed C.O. No. 97-C. II of 1989 saying that she is prepared to go to the husband''s house with children and stay with him for the period mentioned in the order of the Guardian Judge. She further submits that the direction regarding the allowing of temporary custody of the minor children for 15 days to the husband during summer vacation every year be deleted. The husband was not willing to accept the offer made by the wife. His conduct indicates nothing else but hatred for his wife and, in the circumstances of the instant case, I do not think it will be proper to permit him to take the minor children to his house for 15 days every year during summer vacation as directed by the Guardian Judge. This condition in the order of the Guardian Judge is deleted and the cross-objections to this extent are allowed.