Biru vs Beharilal

Kilam, J.—This is an appeal directed against an order of the learned Senior Sub-Judge Jammu, dismissing an application submitted by Mt.

Biru for being appointed as the guardian of her minor son, Bansi Lal. The allegation made by the appellant in her statement before the trial Court

was that the respondent (husband) had developed illicit connection with his sister-in-law, and as such the respondent (husband) had forfeited his

right of keeping the minor in his custody.

This allegation was neither denied by the respondent husband, nor was it admitted by him. The trial Court has found that the accusation against the

respondent that he has got illicit connection with his sister-in-law ""has not been sub-stantiated, nor does this imputation appear to be correct."" We

wish that the trial Court had not so superficially dealt with this case. It should have at least put this allegation to the>respondent (husband) to admit

or deny it as he chose, but nothing of the sort has been done.

Before us this allegation was repeated on behalf of the appellant which necessitated taking down the statement of the respondent, Behari Lal. In his

statement before us Behari Lal respondent has admitted that about one and a, half years ago he has contracted a second marriage with his sister-

in-law. He has also stated that he has got a son from his second wife who is eight months old. He, however, denies that the appellant was

compelled to leave his house because he had made arrangements for contracting a second marriage with his sister-in-law.

Behari Lal has further stated that the boy born of the appellant is these days living with his step' mother, of course under his supervision From the

statement of Behari Lal it is now clear that the allegation made by his wife (appellant) is substantially true. He has married his sister-in-law who

lives in his house and the boy also lives in the same house under the supervision of his step mother.

The question is whether under these circumstances the father can be styled as a suitable person to keep the child in his custody? In Saraswatibai

Shripad Ved Vs. Shripad Vasanji Ved, it has been laid down that

the paramount consideration in the matter of a custody of a minor of tender years is the interest of the child rather than the rights of the parents.

Human nature being much the same all the world over, if the mother is a suitable person to take charge of the child, it is quite impossible to find an

adequate substitute for her for the custody of a child of tender years and consequently the mother is preferable to the father in such case.

We might refer to another passage in the same judgment which runs as under:

The parents unfortunately are not living together, and probably will not live together, because the father has contracted marriage with another

woman. That under Hindu Law he is entitled to do, but it is difficult to suppose that a step mother, whose age we are told is about 17, is likely to

be a good substitute for the natural mother; whilst the father himself will have other occupations and will have to entrust the actual upbringing and

charge of a child of this age to somebody else.

In my opinion, there is not the slightest doubt that the natural mother is the proper person to have the custody of the child, and there is no evidence

before the Court to justify us in thinking that she is not a proper person to have that custody.

At another place Beaumont C.J. has observed:

The father is the natural guardian, and there is no application to remove him from that position. He remains the natural guardian but to the interests

of the child itself, we are satisfied that its custody ought, for the present to be with the mother.

The facts of this case are quite similar to those of the Bombay case cited above. We are in respectful agreement with the enunciation of law

made by their Lordships of the Bombay High Court.

We, therefore, accept this appeal with costs, and order that the custody of the child till further orders be with the mother (appellant). But the

mother shall not remove the child from the jurisdiction of the Court without an order of the Court, and should the father of the child (respondent)

ever like to visit his son, the mother (appellant) should facilitate such a visit.